ORDER
1. This Criminal Revision Case is by P.W. 1 in the case. The three accused have been acquitted of the charges framed against them in C.C. No. 163 of 1984. The State has not filed any appeal.
2. It is the prosecution case that the land known as Paracheri Thattu Vilai in Survey No. 262/2 of Mukilanvalai belonged to P.W. 3 Rathina Thangam and he has been in possession of it. When P.W. 1 Ramanlal son of P.W. 3 went to that field on 23-9-1983 at 2.30 p.m., the three accused and 25 others were cutting down a palmirah tree there. When P.W. 1 questioned the accused about it the first accused retorted asking back who was he to question. Immediately the first accused with a Vettukathi aimed a cut at P.W. 1. P.W. 1 prevented the aim with his left hand and he sustained bleeding injury below his ankle. The second accused fisted P.W. 1 at his chest on account of which he had pain. Third accused with his right hand beat P.W. 1 at his right shoulder. This also caused pain. At the time of incident P.W. 2 Mahalingam and one Rajendran came to the spot and on seeing them the accused ran away.
P.W. 2 Mahalingam brought a car and he took P.W. 1 to Kottar Government Hospital at 3.00 p.m. P.W. 5 Dr. Femila Moses found on him an incised wound on the outer aspect of the left forearm 3 c.m. below the elbow joint. According to her the injury was grievous. P.W. 4 Dr. Vijayagam, Radiologist took X-ray and found fracture.
On receipt of intimation from P.W. 5 Doctor at 3.15 p.m. P.W. 9 Head Constable of Kottar Police Station went to the hospital and there he recorded a statement Ex.P1 from P.W. 1. On coming back to the Station he registered a case under S. 147, 148, 323, 324 and 427, I.P.C. Since the place of incident was within the limits of Suchindram Police Station he transferred the First Information Report to that Station.
P.W. 10 Sub-Inspector of Suchindram Police Station registered a case there. At that time the accused 1 and 2 went there and they gave a report. On that P.W. 10 registered a case and prepared First Information Report. He investigated both the cases together. He went to the place of incident at 6.30 p.m., and there he recovered blood-stained earth M.O. 4. He proceeded to the Hospital and there he recovered blood-stained shirt M.O. 1 and Blood-stained pants M.O. 2. After examination of witnesses he filed a charge sheet against the accused under sections 326 and 323 I.P.C.
3. The learned Addl. Chief Judicial Magistrate, Nagercoil framed addl. charges under sections 148 and 447 against first accused and under Ss. 147 and 447 against second and third accused.
4. The accused denied the charges.
5. When questioned under S. 313 of the Criminal P.C. the accused contended that the land in question belonged to them. P.W. 1 with a Kodarikkambu, P.W. 3 with Kerosene bottle, one Ram Gopu with an iron rod and P.W. 2 Mahalingam with Vettukkathi came there to murder them and grab the property and attacked them; and they have given the false case against them.
6. The learned Magistrate on Consideration of the evidence came to the conclusion that the evidence is not clear as to who is in possession of the land, and the prosecution has not proved the guilt of the accused beyond reasonable doubt. Giving the benefit of doubt to the accused he acquitted them. It is against this order of acquittal P.W. 1 has filed the Criminal Revision Case.
7. Now, regarding possession of the land, as observed by the Court below, both sides have filed documents, and as aforesaid, the Court below has found that it is difficult to believe as to who is in possession of it. However P.W. 6 Balaiah has categorically stated in his cross examination that the land ‘Parachery Thattu’ belongs to Karthikayan i.e. the first accused, and for this land on all the four sides there is fence, and only on the eastern side of this land there is the land of P.W. 3 Rathina Thanga Nadar. He has further stated that the land in respect of which the observation mahazar was prepared has been in possession of the first accused Karthikeyan for a number of years. This witness has not been even treated as hostile by the prosecution, and no reason has been given as to why this evidence of P.W. 6 should not be believed. This being the position the claim of P.W. 1 and P.W. 3 that the land belongs to them and it is in their possession is difficulty of belief.
8. Now it is not in dispute that the accused also have given a report to the police wherein they have complained that they have been beaten with sticks by P.W. 1 and others. In the cross examination it has been suggested to P.W. 1 that P.W. 1 hurling abusive words against Karthikayan beat him with stick. It has been further suggested to him that P.W. 3 tried to pour kerosene on Karthikayan and then set fire to him. Then it was suggested to P.W. 1 that the person who came with him went to Karthikeyan to cut him and the first accused Karthikeyan tried to snatch the Vettukkathi and P.W. 1 also tried to snatch the Vettukkathi and in that process he (PW 1) sustained a Vettukkathi injury. Of course these suggestion have been denied by P.W. 1.
9. Now, as eye witnesses to the occurrence P.W. 1 Ramanlal and P.W. 2 Mahalingam alone have been examined. P.W. 2 is an accused in the report given by the accused in this case. According to the prosecution one Rajendran also was an eye witness and besides four-five ladies also witnessed the occurrence. But the prosecution has not examined Rajendran or any of the said ladies. No reason has been given as to why Rajendran or any of the ladies has not been examined. The evidence of P.W. 1 – complainant is certainly interested one. And in the particular circumstances of the case viz., P.W. 2 is an accused in the report given by the accused in this case, P.W. 2 also is an interested witness. This being the position one would expect the prosecution to have examined the said Rajendran or any of the ladies. Failure to do so raises serious doubt in the verasity of the prosecution case. In these circumstances, as rightly said by the court below, it is difficult to believe that the incident happened in the manner alleged by the prosecution.
10. It must be remembered that the police has not filed an appeal against the order of acquittal, and this Criminal Revision Case has been filed by a private person – P.W. 1. As in an appeal the evidence cannot be re-appraised, and unless there is any defect in the trial or any error committed on a point of law the order of acquittal by the Court below cannot be interfered with; Mohan Ram, learned counsel appearing for the respondents-accused cited a decision of the Supreme Court in “Akalu Ahir v. Ramdeo Ram“, wherein it has been held that “in revision against acquittal by a private complainant the High Court cannot re-appraise evidence for itself as if it is acting as a Court of appeal and then order a retrial. Normally retrial should not be ordered unless there is some infirmity rendering the trial defective. The reason is that the expression of opinion by the High Court on the evidence before it with respect to the commission of alleged offences though not binding on the Court holding fresh trial, may nevertheless leave an unconscious impression on the Court holding such trial.”
11. Mr. G. Rajen, learned counsel appear in for the revision petitioner P.W. 1 brought to my notice another decision of the Supreme Court in “Ayodya Dube v. Ram Sumer Singh“, which has held thus :
“When the Sessions Judge acquitted the accused by ignoring the probative value of F.I.R. and reliable testimony of eye witnesses and without considering material evidence on record and his judgment was full of inconsistencies and consisted of faulty reasoning, the order of the High Court in revision directing retrial by setting aside acquittal would be justified.”
But in our case there is no question of not considering any material evidence or inconsistencies and faulty reasoning in the Judgment. As I have pointed out above the prosecution has not examined material independent witnesses in the case without giving any reason while the witnesses examined as eye witnesses are interested persons, and the prosecution has not proved that the land in which the occurrence happened belonged to or was impossession of P.W. 3 as claimed.
12. Therefore I find no ground for interfering with the order of acquittal passed by the Court below in this revision. Accordingly the Criminal Revision Case is dismissed.
13. Petition dismissed.