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The Public Prosecutor Vs. Narayana Nayudu Alias Narayanaswami Naidu and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in29Ind.Cas.657
AppellantThe Public Prosecutor
RespondentNarayana Nayudu Alias Narayanaswami Naidu and anr.
Excerpt:
criminal procedure code (act v of 1898), section 423 (1) - jurisdiction--acquittal--appeal--high court, power of, to interfere--grounds of interference. - securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along..........be attributed to court witnesses nos. 1 and 2 for having abridged the telegram if, as a matter of fact, exhibit i was the original from which the telegram (exhibit ii) was written. except the desire to misappropriate a portion of the money, no other motive is attributed to court witnesses nos. 1 and 2 for having sent exhibit ii without any reference to the name of the assailant, and, if this falls to the ground, it is difficult to conceive why exhibit ii was sent without mentioning any names, if, as a matter of fact, exhibit i contained all the names of the assailants. the only reasonable explanation is that exhibit i was not the statement as originally given. if this were so, the evidence of p.w. nos. 3 and 7, who are said to have attested and signed exhibit i, is open to grave.....
Judgment:

Kumaraswami Sastri, J.

1. This is an appeal preferred against the acquittal of accused Nos. 1 and 2, who were charged with offences under Section 326, Indian Penal Code.

2. The case for the prosecution is that there were disputes between the 1st and 2nd accused and P.W. No. 7, who is the brother of P.W. No. 1, in respect of the affairs of a certain fund and that on the night of 15th May 1914 the two accused and two others, who were discharged by the Magistrate without a charge being framed, caused grievous hurt to P.W. Nos. 1 and 2. It is alleged that there was a meeting of the share-holders of the fund on the day in question, that it was proposed that the first accused and P.W. No. 7 should be removed from the office and P.W. Nos, 1 and 2 shonlcTbe appointed, that 1st and 2nd accused did not consent, to this and the meeting broke up, that on the same night, as P.W. No. 7 was returning at about 11 p. M., he was waylaid by the accused, that P.W. No. 1, who is the brother of P.W. No. 7 turned up and that the accused attacked him and also P, W. No. 2 when he came to the scene.

3. The Magistrate discharged accused Nos. 3 and 4 without framing a charge against them, and it is not alleged before me that the discharge is erroneous. On the contrary it is conceded that on the evidence they could not be held guilty of any offence.

4. The Magistrate acquitted the 1st and 2nd accused, mainly on the ground that in the telegram sent by P.W. No. 7 on the night of the occurrence no mention is made of the 1st and 2nd accused and that P.W. Nos. 3 and 7 fabricated Exhibit I for the purpose of implicating the two accused. It seems to me that, if these findings are correct, the Magistrate was justified in refusing to place any reliance upon the prosecution witnesses. Exhibit II is a telegram admittedly sent on the night of the occurrence by P.W. No. 7, and it is not Disputed that when he sent the telegram he was aware of all the facts and that, if the prosecution evidence is true, he must have been aware of the fact that 1st and 2nd accused were the assailants. The telegram, Exhibit II, sent to the Superintendent of Police, Coimbatore, runs as follows: Two persons mortally wounded expiring, outrage committed by neigbours. Pray immediate attention with medical officer. Copy Sub-Magistrate Coimbatore and Sub-Inspector Metlupalayam.'

5. The evidence of the prosecution is that P.W. No. 1 went to the Railway station at Periayanay-akkanpalayam to give the message that, as he did not know English, he gave Exhibit Ito the Court witnesses Nos. 1 and 2, who were Railway Officials at the station, and that Exhibit II, which was an abridgement of Exhibit I, was sent as P.W. No. 7 had not sufficient money to pay for all the words which Exhibit I contained. Exhibit I contains the names of the four accufad who were charged in this case as being the assailants of P.W. Nos. 1 and 2. As pointed out by the Magistrate it is difficult to believe that with Exhibit I before them the persons sending the telegram would have sent it in the terms of Exhibit II. The whole case for the prosecution on this part of the subject has been considered very carefully and in detail by the first class Magistrate and I have no hesitation in coming to the conclusion that it is difficult to reconcile the contradictory statements made by Court witnesses Nos. 1 and 2 and P.W. Nos. 3 and 7 as to the circumstances under which Exhibit I was executed. One significant fact is that Exhibit I which ought to have been sent to the head office along with the message, if the Statement of Court witnesses Nos. 1 and 2 is to be believed, is said to have remained in the station and is produced from Periayanayak-kanpalayam station. I agree with the Magistrate in thinking that the probabilities are all against Exhibit 1 being the original statement given by P.W. No, 7 on the night of the occurrence and that very probably it was subsequently written and filed in the station for the purpose of lending colour to the prosecution story and for explaining away the fact that no names were mentioned in the telegram gent on the very night of the occurrence.

6. Mr. Grant argues that it may well be that the Court witnesses Nos. 1 and 2, who got Exhibit I from P.W. No. 7 who did not know English and also received from him Rs. 19-8-0 to send the telegram, Exhibit II, used the minimun number of words possible for the purpose of misappropriating a portion of the money. The force of the argument is entirely lost when it is remembered that the receipt (Exhibit D) for Rs. 19-8-0, the money actually paid by P.W. No. 7, was given that very night and the money was sent to the head office as usual. It also appears from the evidence that the sum of Rs. 19-8-0 sent to the head office was in excess of the number of words contained in the telegram (Exhibit II) and that the head office asked for an explanation from the Court witnesses Nos. 1 and 2 as to why a larger amorfnt was levied. It is, therefore, clear, that no motive can be attributed to Court witnesses Nos. 1 and 2 for having abridged the telegram if, as a matter of fact, Exhibit I was the original from which the telegram (Exhibit II) was written. Except the desire to misappropriate a portion of the money, no other motive is attributed to Court witnesses Nos. 1 and 2 for having sent Exhibit II without any reference to the name of the assailant, and, if this falls to the ground, it is difficult to conceive why Exhibit II was sent without mentioning any names, if, as a matter of fact, Exhibit I contained all the names of the assailants. The only reasonable explanation is that Exhibit I was not the statement as originally given. If this were so, the evidence of P.W. Nos. 3 and 7, who are said to have attested and signed Exhibit I, is open to grave suspicion. It is pretty certain that the prosecution witnesses have not scrupled to introduce a false document for the purpose of gaining a conviction. Under these circumstances I am of opinion that the Magistrate was justified in treating the evidence of the prosecution with great suspicion. There can be no doubt that P.W. Nos. 1 and 2 received serious injuries but the question is, who were the assailants. It is admitted that the assault was committed at 11 o'clock on a dark night and the whole question turns upon the identity of the assailants. It is argued by Mr. Grant that the admitted fact that there were quarrels between the parties as regards the affairs of the nidlii, goes a long way to show that the accused must have Committed the offence, while on the contrary, it is argued by the Vakil for the accused that the fact of ill-feeling between the parties accounts for the false charge being brought against them. In cases of this kind the difficulty is that very often the fact that a crime has been committed is used as a convenient peg whereon to hang a false charge against one's enemies, and I am not prepared to hold that because there were disputes between the parties the inference is irresistible that the accused were the assailants. The principles which ought to guide the Courts in case of appeals against acquittals have been considered by Justices Spencer and Seshagiri Aiyar in Criminal Appeal No. 317 of 1914, and I agree with them in thinking that the Court ought not to interfere with an acquittal by a Magistrate who had the witnesses before him and arrived at conclusions of fact with this great advantage in his favour, unless the Judge was clearly wrong and the judgment either perverse or based on obvious error of procedure.

7. I have gone through the evidence carefully and giving the case my best consideration, I cannot say that the acquittal was not justified by the evidence on record.

8. I dismiss the appeal.


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