Sivanmoorthy & Ors vs State Rep.By Inspector Of Police

WITH

CRIMINAL APPEAL NOS.

767-768 OF 2008

O R D E R

The facts leading to these appeals are as under:

On 28th October, 2001, at 8.00 p.m. accused A.1 to

A.8 armed with sickles (aruvals) and accused 9 to 15 armed

with sticks went to the house of the deceased Seeniappa

Nadar and inquired about PW.13 Mariappan, his son. The

deceased informed the accused that Mariappan was not

present in the house. Annoyed at this answer A.13 Ayyanar Nadar instigated the other accused and all of them attacked

the deceased with their weapons killing him on the spot. As

per the prosecution story the motive for the incident was

the serious animosity between Mariappan Nadar PW.13 on the

one hand, and A.13 Ayyanar Nadar accused on the other with

regard to the affairs of the Nadar community inasmuch that

they represented two different groups in the Committee run

by the community. It also appears from the record that

even prior to this incident, several incidents had taken

place between the parties with complaints inter se, not

only in court but even in the police station. The incident

in question was witnessed by Sornammal, the wife of the

-2- deceased, her daughter P.Chellam (PW.1) who was living in a

house about 100 yards away and Muthu (PW.2) the grandson

of the deceased. Sornammal then rushed to the police

station and lodged the report within a short time. The

Investigating Officer (PW.25) also reached the place of

incident, made the necessary inquiries and sent the dead

boy to the hospital for the post-mortem examination. The

post-mortem conducted by Dr. Ramesh (PW.17) revealed the

presence of nine incised wounds on the dead body. After

investigation PW.25 filed the charge-sheet against A.6,

A.7, A.9, A.10 and A.11 and one Paneerselvam, was

subsequently charge-sheeted as well. As the complainant

was not satisfied with the investigation, she moved the

Madras High Court for further investigation in the matter and the High Court by its order dated 11th December, 2001,

directed that the Superintendent of Police CBCID (PW.27) to

examine the proceedings himself and in case he found that

the investigation made by PW.25 was faulty, to further

investigate the matter as postulated by Section 173(8) of

Cr.P.C. It appears that further investigation was indeed

made by PW.27 whereafter he filed a charge-sheet against

all the 15 named persons leaving out Paneerselvam the 16th

accused. The matter was thereafter brought to trial before

the Sessions Judge who by his judgment and order dated 16 th

June, 2006, held all the accused (Save A.7 who had died)

guilty as follows :

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Appellants Convictions under Sentence Awarded Sections.

A-1 to A-6 148,341 and 302 1.One year rigorus & A-8 IPC imprisonment of each of the accused for the offence under Seciton 148 IPC. 2.One month Simple

imprisonment for each of them for the offence under Section 341 IPC. 3.Life imprisonment for the offence under Section 302 IPC for each of the accused.

A-9 to A-15 147,341 and 302 1.Six months rigorous

Read with 149 IPC imprisonment for the offence under Section 147 IPC for each of the Accused.

2.One month simple imprisonment for the offence under Section 341 IPC.

3.Life imprisonment for the offence under Section 302 read with 149 IPC for each of the accused.

A-13 323 IPC Six months simple imprisonment for the offence under Section 323 IPC.

An appeal was thereafter taken by the accused to the

High Court. The High Court maintained the conviction of

A.1 to A.6 and A.8 and acquitted the other accused.

Two appeals have been filed against the order of the

High Court, one by the convicted accused in

Crl.A.No.584/2008 and the second Crl.A.Nos.767-768/2008 by -4-

PW.1 the daughter of the complainant seeking a reversal of

the High Court's judgment insofar as some of the accused

had been acquitted and as the complainant had died before

the evidence could be recorded in the trial Court. Leave

has been granted in both these matters and we have heard

the learned counsel for the parties today in extenso.

Mr. N. Natarajan, the learned senior counsel for the

appellants in Criminal Appeal No.584/2008 has raised

several issues during the course of hearing. He has first

pointed out that Section 173(8) of the Cr.P.C. and the

order of the High Court referred to above visualized "further investigation" in the matter and not re-

investigation but it appeared from the record that PW.27

had in fact re-investigated the matter and that in this

eventually the evidence collected by him could not be

looked into for the purpose of recording a conviction

against the appellants. He has also submitted that even

assuming that the further investigation was in order but in

the background that the investigation made by PW.25 was at

complete variance with that made by PW.27, no credence

could be attached to the investigations whatsoever and that

it was thus open to the appellants to contend that the

evidence collected by both the police officers was liable

to be disbelieved. He has further pointed out that in the

background of the fact that there were as many as 15 or 16 accused there was no way to identify and to adjudicate upon

the culpability of one set of accused from the other and as

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such all the appellants were entitled to acquittal. He has

also pointed out that no independent witness had been

examined though many were available in the village in which

the incident happened and this too cast a doubt on the

prosecution story.

The learned counsel for the State, Mr. S.Thananjayan

has on the contrary, submitted that the matter had been

further investigated and a fresh charge-sheet had been

filed and a perusal of the charge-sheet would reveal that the statements of witnesses who had been examined by PW.25

had been reexamined as also the statements of several

other persons had been recorded in addition to some

statements under Sec.164 Cr.P.C. He has, accordingly,

urged that in a case where the Court felt (as in this case

the High Court did) that the investigation had been side

tracked it was always open to the Court to direct further

investigation in the interest of justice and could not

leave it to the whims of a dishonest police officer to

scuttle an investigation. The learned counsel has relied on

several judgments in support of his plea as well. It has

further been submitted that PW.1 and PW.2 were the daughter

and the grandson of the deceased and as their presence was

natural, there was absolutely no reason to disbelieve them, the more so, as PW.2 was an educated witness studying for

his Law degree. It has also been pleaded that the High

Court had in any case separated the grain from the chaff

and given the benefit to such of the accused whose presence

was felt to be doubtful.

-6-

Mr. S.B.Sanyal, the learned senior counsel for the

complainant-appellant in Crl.A.Nos. 767-768/2008 has

pointed out that Section 149 of the IPC had been applied to

the case and even assuming that no injury had been caused

by the acquitted accused their mere presence was enough on

the facts of the case to involve them in the incident. He

has also urged that the reasons given by the High Court in acquitting the accused were not justified.

We have considered the arguments advanced by the

learned counsel for the parties. Section 173(8) read as

under:

"173(8): Notwithstanding in this Section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate

and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report as they apply in relation to a report forwarded under sub-section (2)."

Sub-section (8) of Section 173 does talks about

"further investigation". The term "Further investigation"

has, however, not been defined in the Code and must

therefore depend on the facts of each case as culled from

the record. We find from a perusal thereof that PW.27 had

made a comprehensive further investigation, recorded the

statements of the witnesses who had already been examined

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by PW.25 and in addition the statements of several other

witnesses as well and their their statements under Sec. 164

of the Cr.P.C. and on reappraisal had filed a fresh charge-

sheet. We also notice that the question as to whether this

procedure amounted to a further investigation or re-

investigation had been taken up by the accused in the trial

Court as well, had been discussed comprehensively and had been repelled. When this matter came to the High Court a

slight deviation had been made from the stand taken in the

Trial Court and the submissions made by the learned senior

counsel were recorded verbatim as under:

"Though P.W.27 continued the further investigation on the basis of the order passed by the High Court, Madras, it cannot be said that PW.27 has conducted a fair investigation and filed the final report."

It will be seen from a perusal of the aforesaid

quote that there was no criticism as to direction of the

further investigation by PW.27 but the point raised was

that the said investigation had not been fair. We are,

therefore, of the opinion that in fact PW.27 had carried

out a further investigation in the matter and not a re-

investigation. Mr. Natarajan has relied on several

judgments in support of his plea that what had been done was a re-investigation. They are 1998(5) SCC 223

(K.Chandrashekharan vs. State of Kerala & Ors.), 2008(5)

SCC 413 (Ramachaudhary vs. R.Dodhaya Kuamar and Anr.), 2009

(6) SCC 346 (Mitha Bai Pasabai Patel & Ors. vs. State of

Gujarat) and 332 (Rama Chandran vs. State of Bihar). The

judgments merely reiterate the legal position that further

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investigation and not a fresh re-investigation can be made

but, as already mentioned above, the nature of the

investigation whether it amounts to a further or a re-

investigation has to be seen from the nature of the

investigation conducted. On facts we find that the investigation conducted by PW.27 was in the nature of a

further investigation.

We have also considered Mr. Natarajan's arguments

with respect to the finding recorded by the High Court on

the evidence. He has first and foremost pointed out that

though the trial Court had convicted all the accused, the

High Court in appeal had acquitted several of them and it

had, therefore, to be presumed that the evidence did not

justify a conviction. We notice that necessary

investigation into the facts has already been made by the

High Court as also by the trial Court. We would ordinarily

be hesitant to re-appraise the evidence. We have

nevertheless done so and have gone through the statements

of the two primary witnesses PW.1 and 3 We find absolutely no reason to disbelieve their statements as fortified by

the medical evidence given by PW.17 Dr. Ramesh who had

found the following injuries:

1 A deep cut injury in the centre of the head with

fracture of parietal bone on left side size 10cm x

3cm. Blood coming from the fracture site.

2 A cut injury on left parietal region size 5 cm x 3 cm

near lest ear.

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1 A deep cut injury with fracture of occipital bone size

6cmx3cm. Blood coming from fracture site.

2 A cut injury near left eye size 4cmx2cm.

3 A cut injury on left jaw size 4cmx2cm.

4 A cut injury on left shoulder size 3cmx2cm.

5 A cut injury on left forearm size 3cmx2cm.

6 Two cut inury on the back on left side of lower chest

size 3cmx1 = cm.

7 A cut injury near right back side ear size 2cmx1cm.

Hyoid Bone is intact."

Both the trial court as well as the High Court had

found that the eye witnesses' account stands substantiated

by the medical evidence. It must also be borne in mind

that the factum of animosity between the parties stands

admitted. In such a case the real assailants would not be

left out although false implication could be a possibility. It is in this background that the High Court has already

granted the benefit to some of the accused on the

understanding that the medical evidence did not indicate

their presence as the acquitted persons were armed with

sticks and no blunt weapon injuries had been detected by

the doctor.

Likewise we are of the opinion that the Crl.A.Nos.

767-768/08 filed by P.Chellam also lack merit for the

reasons given above. This court would be hesitant to

reverse a finding of acquittal recorded by the trial Court

-10- or the High Court where the circumstances are not palpably

wrong and the judgment is not perverse. These adjectives

cannot be applied to the judgment of the High Court in the

present case.

Accordingly, all the appeals are dismissed.

.................J. (HARJIT SINGH BEDI)

.................J. (J.M. PANCHAL) New Delhi, November 11, 2009.