MOHAMED NAGOOR MEERAN Vs. STATE

JUDGEMENT

(1.) This revision is against the order of acquittal of the learned II Additional Sessions Judge, Tirunelveli, in C. A. No. 148 of 1989 reversing the findings of the Assistant Sessions Judge, Tenkasi, in S.C. No. 326 of 1985. The respondents herein and three others were pros ecuted before the Assistant Sessions Judge, Tenkasi, for the offence under Sections 457, 395 read with Section 397, Indian Penal Code. The prosecution alleged that on 13-4-1985, the accused persons broke open the lock of door No. 61 Periyapallivasal Street, Kallidaikurichi, belong ing to P.W. 8, in spite of the obstruction of P.W. 1 and threatening with dangerous weapons, removed the cash and jewels worth Rs. 17,-73, which were later recovered on the arrest of the third accused who gave a statement leading to the recovery of those articles. The prosecution examined 11 wit nesses of whom P.Ws. 1, 2, 4 and 5 are the eye witnesses to the occurrence, P.W. 3, the Village Administrative Officer spoke about the recovery of the kerosene light and match sticks in the house where the alleged dacoity was committed, P.Ws. 6 and 7 have spoken about the possession of the house by its owner P.W. 8, P.W. 9 has spoken about the arrest and confession of the third accused leading to the recovery of the articles. P.Ws. 10 and 11 are the police officials evidenc ing the registration of the case and investigation. The learned Assistant Sessions Judge accepted the prosecution case so far as the accused 1 to 3 are concerned and convicted them to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100 for the offence under Section 457 Indian Penal Code and also convicted them to undergo rigorous imprisonment for 3 years and pay a fine of Rs. 500.00 each for the offence under Section 392 Indian Penal Code and acquitted the accused 4 to 6. But on appeal before the learned II Addi tional Sessions Judge, he has found that the evi dence against the accused persons are artificial and unbelievable and therefore set aside the convic tion and sentence on these respondents and acquitted them of all charges. Hence, P.W. 1 has come forward with this private revision against the acquittal of the respondents 2 to 4.

(2.) The learned counsel for the revision peti tioner Mr. Karpagavinayagam, referring to the decisions of this Court and also the Supreme Court, would contend that when the Court has not applied its mind on the evidence and the findings are faulty leading to failure of justice, the revisional Court has to interfere to set right the infirmity in the administration of justice. The learned counsel referred to the decision in Chellammal v. Packiam 1976 Mad LW (Cri.) 55 : (1976 Cri LJ 1966) wherein this Court has held that when the acquit tal of the accused persons suffers from a manifest illegality in overlooking the material evidence of the witnesses, resulting in gross injustice, the interest of justice to require that the High Court should interfere with the order of acquittal. In Marappa Gounder v. Venkatachalam 1983 Mad. LW (Crl.) 1 : (1983 Cri LJ NOC 112) it is observed that though generally the High Court, while sitting in its revisional jurisdiction will not incline to interfere with an order of acquittal that too at the instance of a private party when the State has not preferred any appeal, if the facts and circumstances of the case warrant an interference by exercising extraordinary discretionary power vested in the Court in aid of justice, the order of acquittal has to be set aside to set right the grave injustice. The Supreme Court also in Akalu Ahir v. Ramdeo Ram 1974 Mad. LJ (Cri.) 168 : (1973 Cri LJ 1404) has held that the High Court, while exercising the revisional powers, should refrain from interfering except when there is a glaring defect of a serious nature which has resulted in grave failure of justice. Therefore, the dictum of these decisions is that when the mistake in the decision is glaring causing the failure of justice, certainly the revisional Court has to exercise its jurisdiction interfering with the findings of the Court below. Therefore, the revision petitioner, has to establish that there is glaring mistake in the order of the learned II Additional Sessions Judge, Tirunelveli. The learned Judge has given series of reasons for disbelieving the evidence of the wit nesses on the prosecution side, especially the eye witnesses, and the improbability in the prosecu tion case.

(3.) Before we proceed to consider the merit of the grounds of this revision, I have to mention that the house in which the dacoity is said to have been committed by the respondents was in the occupa tion of the first accused/first respondent. It is also the case of the prosecution that P.W. 8, who is the owner of this house viz. No. 61, Periyapallivasal Street, Kallidaikurichi, and who is a resident of Madras, had allowed the first accused/first re spondent to occupy this house some time ago and even according to the prosecution case, the first accused was in possession of this house till 15-1 -85. The version of P.W. 8 is that he allowed the first accused/first respondent to occupy the house temporarily for some time with a condition that he should vacate the house whenever required by him. But, even before this alleged occurrence, the first accused was contending that he is a tenant of this building on a monthly rent of Rs. 60.00 and therefore he is entitled to the statutory rights of a tenant. As a matter of fact, P.W. 8, the owner of the building, wrote the letters Exs.D-1 and D-2 re questing the first accused to vacate the house and later on sent the notice Ex.D-3 through his advo cate to vacate the house otherwise he would take legal action to vacate him. The first accused sent the reply under the original of Ex.D-4 on 1-7-84, i.e. even one year before this occurrence, that he is a statutory tenant in possession of the building and, therefore, he is not bound to vacate the building. Therefore, it is an admitted fact that the first accused was in possession of this building even in January 1985. But the prosecution case is that, P.W. 8, who came from Madras to Kalli daikurichi, in connection with the marriage of his close relation, arranged for a panchayat on 15-1 -85 and in the panchayat, the first accused agreed to vacate the house and he also executed a document under the original of Ex.P-5 admitting the surrender of possession of the building to P.W. 8. P.W. 8 has deposed that he took possession of the building on 15-1-85 and celebrated a function in connection with the marriage of his close relation on 17-1-1985 in this building and left for Madras keeping the house locked, under the supervision of his father-in-law P.W. 1. It is the prosecution case that on 13-4-85 night, these respondents and three others committed dacoity in this house by break opening the lock. The accused 1 and 2 are brothers and the third accused is the son-in-law of the first accused. The fourth accused is the son of the first accused and accused 5 and 6 are the wives of accused l and 2 respectively.