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K. Perumal Vs. Chithanathan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Appeal No. 492 of 1964 and Cri. R.C. No. 1148 of 1964 and Cri. R.P. No. 1122 of 1964
Judge
Reported inAIR1966Mad142; 1966CriLJ542
ActsIndian Penal Code (IPC), 1860 - Sections 147, 148, 149, 302, 323 and 324; Code of Criminal Procedure (CrPC) , 1898 - Sections 190(1), 207-A, 208, 270, 403, 417 and 417(3); Constitution of India - Article 20(2)
AppellantK. Perumal
RespondentChithanathan and ors.
Cases ReferredIn Sunder Singh v. State of Punjab
Excerpt:
.....the code did not enjoin different procedure to be followed. so there would be no bar to a sessions judge before he commenced trial to club the two cases on the basis of the committal records before him, frame suitable charges on the materials available at the time and try all the accused at one trial provided, of course, the offences forming the subject-matter of the charge arose out of the same facts and transaction and in so far such a procedure does not offend the rules relating to joinder of charges or of accused. in such a trial it would be open to the sessions judge to examine both the witnesses cited by the prosecution as well as the complainant. section 270 of the code required that in every case before a court of session the procedure shall be conducted by the public..........was concerned, somewhat similar on facts to the present case. in the course of his judgment, the learned judge referred to a circular issued by two learned judges of this court on the administrative side, according to which the two cases should be shown as two p.r. cases and they should be tried separately following the procedure laid down in cases of case and counter, thereby avoiding several pitfalls, like misjoinder of charges. ramaswami j. found himself in agreement with the circular.on an examination of the relative records of this court, we find, however, that no such circular was issued by this court but all that appears to have happened is that at one of the annual conferences of judicial district magistrates, the question of procedure to be followed in such cases would appear.....
Judgment:
(1) This appeal and the revision case raise a point of the procedure to be followed where there are two cases on the same set of facts, one arising out of a police report and the other on a private complaint, and one of them involving more or less accused and witnesses than the other some of them being common to both.

(2) On the night of 3rd June 1963, a man named Natarajan was stabbed and killed on the spot at Viswanathaperi. During the occurrence, three other persons, who claim to be eye-witnesses thereto, were also injured, namely K. Perumal and E. Chinnammal, P.Ws. 2 and 4 respectively, and one Rakkammal. After investigation the police filed a charge-sheet on 29th June 1963, prosecuting only accused 2 for an offence under S. 302 I.P.C. for the murder of Natarajan. K. Perumal (P.W. 2) on the ground that the police had omitted accused 1 and 3 to 7, filed a private complaint in the Sub-Magistrate's court, Tenkasi, implicating those accused and accused 2 and charged them for different offences under S. 302, the same section read with S. 149, and Ss. 147, 148, 323 and 324 I.P.C. But these cases were separately enquired into by the Sub-Magistrate, Tenkasi, and ended in separate committal orders.

Before the court of Session, Tirunelveli also, the trials were held separately with two separate judgments both resulting in the acquittals of all the accused. It appears that the witnesses common to both the cases were formally examined in the both the courts below separately in the two cases in addition to the other witnesses exclusive to each of those cases. P.W. 2 has preferred an appeal under S. 417(3) Cri.P.C. from the Sessions judgment arising out of the private complaint and a criminal revision case against the other judgment referable to the police report.

(3) On behalf of the accused, their learned counsel, Mr. Srinivasagopalan, raised an objection to the maintainability of the appeal on the ground that the two simultaneous trials, like the enquiries, were illegal and that in view of the acquittal of accused 2 in the police case, the trial in the other case was barred. He submitted that if the trial, arising from the private complaint, was itself illegal, no appeal therefrom would lie under S. 417(3) Crl.P.C. Before we consider the appeal and the revision cases, on the merits, we should consider first this legal objection.

(4) The question raised by counsel for the accused really turns on the procedure to be followed by committal as well trial courts in such cases. Cognisance of offences may be taken by Magistrates as provided by S. 190(1) Cri.P.C. either on the basis of a private complaint of facts constituting the offence, or on a police report made by a police officer, on information received by them from any person other than a police officer, or upon their own knowledge or suspicion that such offence had been committed. The procedure to be followed by such Magistrates would appear to differ according to the basis on which cognisance of a particular offence is taken; and this is on account of the amended provisions of the Code introduced by Act XXVI of 1955. In such cases exclusively triable by a court of session the Magistrate should hold an enquiry following the procedure prescribed by S. 207-A, if the proceeding was initiated on a police report. But if proceeding was initiated in any other manner, the magistrate, in such cases triable by a court of session should follow the procedure specified by the other provisions of Chapter XVIII of the Code, including S. 208. The two procedures are obviously distinct and different.

Chapter XVIII of the Code leaves no alternative to the magistrate but to follow the appropriate procedure. In most cases this should present no difficulty; but where, on the same set of facts relating to offences triable by a court of session, there are two cases initiated, one on a police report and the other on a private complaint, one of them involving more or less accused and witnesses than the other, some of the accused and witnesses being common to both, the question arises whether there is any discretion left in the magistrate, at the enquiry stage, to club the two cases and follow one or the other procedure under S. 207-A or S. 208 of the Code. It seems to us that such a situation is not in the contemplation of Chapter XVIII of the Code. The Code does not expressly deal with such a case and provide the procedure to be followed therein. But as S. 207 stands, as amended at the moment, the magistrate has no power to club the two cases for the purpose of enquiry. He has to deal with the two cases separately and hold separate enquiries in each of them, making at the end separate committal or discharge orders. That is the procedure the committing Magistrate in this case followed, and we think quite rightly.

(5) U Po Yone v. Emperor, AIR 1933 Rang 271 and Mukania v. Achalia, were decided before the amendment of the Code in

1955. Mahalinga Thevar in re, and Manphool v. State, are more in point. In the first of those cases,

Ramaswami J. took the view that the two cases, one arising out of a police report and the other on a private complaint could not be clubbed together and proceeded with at one enquiry by the committal court. That was, so far as the procedural aspect was concerned, somewhat similar on facts to the present case. In the course of his judgment, the learned Judge referred to a circular issued by two learned Judges of this Court on the administrative side, according to which the two cases should be shown as two P.R. cases and they should be tried separately following the procedure laid down in cases of case and counter, thereby avoiding several pitfalls, like misjoinder of charges. Ramaswami J. found himself in agreement with the Circular.

On an examination of the relative records of this Court, we find, however, that no such circular was issued by this Court but all that appears to have happened is that at one of the Annual Conferences of Judicial District Magistrates, the question of procedure to be followed in such cases would appear to have been discussed in the presence of the two learned Judges and, based on their observations, the District Magistrate of Ramanathapuram issued a Circular that such cases should not be clubbed together but they should be dealt with separately as in cases of case and counter. The intention of the Circular was to avoid misjoinder of charges vitiating a trial.

In our view, Ramaswami J. Was right in so far as he held that such cases should not be clubbed together but should be enquired into separately. But we are not sure whether the procedure to be followed at the two independent enquiries should take the pattern of the procedure followed in cases and counter. If we may say so with respect, we can find no warrant in the amended provisions of the Code for applying a procedure different from that S. 207 has clearly laid down. In a learned single judge of the Madhya Pradesh High

Court took the same view as Ramaswami J. but in support for the view, an additional reason was relied on based on S. 417(3) of the Code. For ourselves, we would be content to base our view against clubbing on only the provisions of S. 207 of the Code.

(6) So far as the Sessions Court is concerned, where there are two committal orders, arising out of a police report and a private complaint, the Code does not enjoin, as far as we can see, different procedures to be followed. Though there is no specific provision in the Code to which our attention has been invited, having regard to the fact that there is only one procedure prescribed and to be followed at sessions trials, there would, in our view, be no bar to a sessions Judge, before he commences trial, to club the two cases on the basis of the committal records before him, frame suitable charges on the materials available at the time and try all the accused at one trial, provided, of course, the offences forming the subject matter of the charges arose out of the same set of facts and transactions, and provided further that such a procedure does not offend the rule relating to joinder of charges or of accused.

In such a trial, it will be open to the Sessions Judge to examine both the witnesses cited by the police as well as by the complainant. This approach to the procedure would also appear to derive some support from the provisions of S. 270 of the Code, which requires that in every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor. We think that such a procedure will not only simplify the proceedings but make them less burdensome and more convenient from the point of view of everybody and save the valuable time of the Court. Section 417 of the Code may then be available also to an aggrieved complainant.

(7) In this case, however, the learned Sessions Judge did not follow the procedure we have suggested, which he could have well done, but has, as we said, held two separate trials, recording the evidence in each case independently and delivering two separate judgments, though both the trials were as they ought to be, conducted by the same Public Prosecutor. But on that account we are unable to agree with counsel for the accused that there was anything illegal in what the Sessions Judge has done. No doubt, S. 403 of the Code bars a subsequent trial, where, on the same set of facts, a competent Court had, after a trial, convicted or acquitted the person concerned.

Article 20(2) of the Constitution also enjoins that no person shall be prosecuted and punished for the same offence more than once. But it should be noted that the bar will apply only when a person has been prosecuted and punished or tried by a competent Court for an offence and convicted or acquitted. In Venkataraman v. Union of India, , which was in relation to Art. 20(2) of the

Constitution, the Supreme Court pointed out the words "prosecuted and punished" in the Article should not be read disjunctively. The same principle should apply in the interpretation of S. 403 of the Code. It follows, therefore, that the bar arising out of a previous acquittal, conviction and punishment does not apply to simultaneous enquiries or trials or prosecutions for the same offence. The doctrine of double jeopardy, which is part of the American Constitution, is not part of the Indian Criminal Procedure and is not recognised by the Indian Constitution. We are not at the moment concerned with the desirability or advisability of engrafting that principle into the laws of our country.

(8) Learned counsel for the accused argued that as a result of the acquittal of accused 2, at the trial arising out of the police report, the Sessions Judge was not justified in delivering a judgment in the other case, which is part of the trial. In this connection he invites out attention to Basil Rangar Lawrence v. Emperor, AIR 1933 PC 218, where the Judicial Committee held that a trial meant the whole of the proceeding, including the sentence. It may be granted that judgment is part of the criminal trial, which should end either in acquittal or conviction.

But, where there is no legal objection to simultaneous trials, as in this case, and one of them ends in acquittal, we do not see how that fact will bar the Court from delivering judgment in the other, because the trial itself having been legally held simultaneously, it must necessarily end in a judgment. What effect should be given in that judgment to the acquittal in the other case, is another matter which we shall consider presently. In our view, the contention for the accused that the delivery of the judgment in the case arising out of the private complaint was illegal, because, in the other judgment preceding it, accused 2 had been acquitted, cannot be accepted.

(9) It is urged that the effect of the acquittal of accused 2 in the police case upon the other case is that the Court should, in view of it, acquit the rest of the accused. In other words, what counsel submits is that if the evidence against accused 2 was not accepted with the result he has been acquitted, the Court cannot, in the other case, reassess the evidence relating to that and the other accused. We are unable to appreciate this argument. Take, for instance, a case in which one of the accused was acquitted and the others convicted at the same trial and there is an appeal by the convicted persons. In such a case, obviously the Court of appeal can review the entire evidence and may even consider that the acquittal of one of the accused was not justified. It is true, on that basis the Court cannot set aside the acquittal and convict the person who had earlier been acquitted, and that is only because there is no appeal against the acquittal.

But the point is that the fact of acquittal will not prevent the Court of appeal from reviewing the entire evidence for the purpose of evaluating it, in considering whether on the evidence, the other accused had been properly convicted, or, as in this case, acquitted. In Sunder Singh v. State of Punjab, , the Supreme Court observed:

"If in dealing with the case presented before it, on behalf of the appellants it became necessary for the High Court to deal indirectly or incidentally with the case against Rachpal Singh (acquitted), there is no legal bar at all. It may be that in considering the evidence as a whole, the High Court may have come to the conclusion that the evidence against Rachpal Singh was unsatisfactory and if it had come to such a conclusion, it would have examined the said evidence in the light of this infirmity. On the other hand, after considering the evidence, the High Court may well have come to the conclusion, as it has, in fact, done in the present case, that the evidence against Rachhpal Singh is also good and need not have been discarded. In our opinion, there is no doubt that if in appreciating the points made by the appellants before it the High Court had to consider the whole of the evidence in respect of the accused persons, it was free to come to one conclusion or the other in respect of the said evidence, so far as it related to Rachhpal Singh."

We are of the view, therefore, that merely because accused 2 had been acquitted in the police case, it does not prevent this court from looking into and appreciating the entire evidence on record in the other case for the purpose of deciding whether the rest of the accused in the case, arising out of the private complaint, could be convicted.

(10) We shall now turn to the merits of the appeal and the revision case. Natarajan, on the night of 3rd June 1963, sustained two incised and one gaping wounds, the last on the left of middle line of the chest penetrating the thoracic cavity. This was necessarily fatal and according to the medical opinion, death must have been instantaneous, though the deceased could have staggered for a few yards after sustaining the injuries. The prosecution alleged a motive of enmity between the deceased and P.Ws. 1 and 2 on the one hand and accused 1 and 2, father and son, on the other, in respect of the diversion of an irrigation channel over which there was a dispute between them and on account of certain criminal cases.

On the day of the occurrence, the deceased carried food to his father, who was watching his fields, and was accompanied by P.W. 2. When they had hardly proceeded a few feet from what is known as Rottaikadai Palam in Viswanathaperai, they were encountered by accused 1 to 7. Of them, accused 2 and 5 were armed with vel sticks and accused 4 with a stick. Accused 2 remonstrated with the deceased for helping P.W. 1 in diverting water on the night of 1st June 1963. This was followed by accused 1 shouting "stab and kill". Accused immediately stabbed the deceased on the left side of his chest with his vel stick.

Accused 3, 6 and 7 caught hold of the deceased when he had gone back to a few steps towards the south of Rettakadi Palam and pushed him down near the house of one Rakkammal, said to lie 20 feet to the south of the bridge. The deceased fell down in a manure pit, just south of Rakkammal's house and at that time accused 2 inflicted two more stabs, one of which while he was yet in the grip of accused 3, 6 and 7 and the other when he fell flat in the pit. These stabs were on the right side of the chest and the right shoulder of the deceased. When P.Ws. 2 and 4 and Rakkammal, who were witnessing the occurrence tried to interfere, accused 2 hit a blow on the head of Rakkammal with the stick portion of the vel stick, accused 5 stabbed P.W. 2 on his right knee with his vel stick; accused 4 beat him (P.W. 2) on his head with a stick and accused 4 also beat P.W. 4 on his back with a stick. The occurrence was then over, when the assailants disappeared from the scene.

(11) At 10 p.m. P.W. 2 made a report of the occurrence to the Sub-Inspector (P.W. 8) at the police station at Sivagiri, about two miles from Viswanathaperi. It is said that accused 2 also appeared at the police station at 10-15 p.m. with his vel stick and was arrested there, and his vel stick was seized under an Athakshi. His clothes were also seized. Investigation then started. That was the case presented against the accused.

(12) We have already mentioned about the police report charging only accused 2 for the murder and the private complaint of P.W. 2 implicating all the accused in the several offences we have adverted to. At the trial arising out of the private complaint, P.Ws. 1 to 4 were examined as eye-witnesses to the occurrence. The motive alleged against the accused was sought to be proved by P.W. 1. In the other case Rakkammal, who claimed to be an eye-witness and to have been injured at the occurrence, was also examined in addition to certain other witness not examined at the trial arising out of the private complaint. The learned Sessions Judge considered the evidence in both the cases and was of the opinion that it failed to establish the charges against the relative accused beyond a reasonable doubt, and, on that view, acquitted them all in both the cases.

(13) Mr. Mohan Kumaramangalam for the appellant and the petitioner in the revision cases has taken us through the entire record of evidence. We consider that the learned Sessions Judge took the right view of the evidence in acquitting all the accused. It appears that the village of Viswanathaperi is divided into two political parties, Congress and the Communists, the one set against the other, and that on the top of that, it is stated that the accused had been originally Communists but they, in about 1958 left that party. The occurrence took place on the night of 3rd June 1963. According to the evidence, there was, admittedly, moon-light and there was also two lamp posts in which electric lights were burning and the occurrence took place in between them. But the evidence of the direct witnesses, as has been pointed out by the learned Sessions Judge, is highly discrepant and conflicting in important and material particulars, namely, with reference as to how the occurrence started, the place of occurrence and the manner of actual attack. In that state of the evidence of the so-called direct witnesses, the learned Sessions Judge felt unable to place any reliance on it. We are in entire agreement with that view. The alleged motive did not find a place in the first information report, though it was given by P.W. 2. The direct witness were also related to the deceased.

(14) Mr. Mohan Kumaramangalam could not convince us that the learned Sessions Judge was wrong in pointing out the several discrepancies and infirmities in the evidence of the direct witness. But his submission was that he failed to advert to two important matters which would have a bearing upon his appreciation of the evidence against the accused: (1) the fact that three of the eye-witnesses themselves sustained injuries and (2) the fact that accused 2 surrendered to the police at the Sivagiri police station soon after the occurrence. If these two facts had been borne in mind by the learned Sessions Judge while evaluating the evidence, he would, according to learned counsel for the appellant, perhaps, have come to a different conclusion. On a perusal of the judgment of the learned Sessions Judge, we do not think it possible to agree with learned counsel that he had failed to bear in mind the said two facts. He has referred to them in his judgment and there is no reason to think that while considering the evidence, the two facts had slipped out of his mind.

What the learned Sessions Judge has done is to analyse the evidence of the direct witnesses and bring out the discrepancies, contradictions and other infirmities and in the light of which to weigh and reject the evidence. When the evidence of the direct witnesses was open to doubt as to the exact place of occurrence, and there were many versions as to the precise manner in which the last two stabs were inflicted on the deceased, the Sessions Judge, notwithstanding the fact that three of the direct witnesses had sustained injuries at the occurrence, was not prepared to accept their evidence and to hold that the occurrence took place and the stabs were inflicted on the deceased as spoken to by them. We are, therefore, not satisfied that the judgment of the Sessions Judge is vitiated on the ground that he failed to bear in mind the fact that three of the eye-witnesses had been injured in the course of the occurrence. Nor are we satisfied that the learned Sessions Judge failed to bear in mind the fact of surrender of accused 2 to the police.

As a matter of fact, we find that accused 2 himself, in his statement at the sessions trial, disputed the fact of his surrender. He did not admit that he surrendered. The seizure of certain material objects from him at the time of his surrender and arrest would appear to have been evidenced according to the police, by an Athakshi signed by certain witnesses. None of the these witnesses has been examined notwithstanding the fact that the fact of surrender was in dispute. Further, if accused 2, as is claimed, was in the police station at 10-15 p.m. he should have been seen by P.W. 2 but that is not the evidence. We are, therefore, satisfied that the learned Sessions Judge took the right view of the evidence in acquitting all the accused in the case arising out of the private complaint.

(15) So far as the criminal revision case is concerned, what we have stated so far should suffice for its disposal. There is the further point that the question whether, if the learned Sessions Judge had borne in mind the fact of surrender by accused 2 and the injuries sustained by three of the direct witnesses, he would have come to a different conclusion on the evidence, is essentially a question of fact, and, in any case, the finding in relation to that question being factual, it could not be reopened in revision. The appeal and revision case are dismissed.

(16) Appeal and revision petition dismissed.


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