Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE13H DAY OF JANUARY201423RD POUSHA, 1935 CRL.A.No. 1643 of 2003 ( ) --------------------------- AGAINST THE JUDGMENT
IN SC1491998 of ADDL. SESSIONS COURT, FAST TRACK (ADHOC-1), ALAPPUZHA DATED0409-2002 APPELLANT(S)/COMPLAINANT: ------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SMT.T.Y.LALIZA RESPONDENT(S)/ACCUSED: ----------------------- 1. RAJU, CHAKKOOR PADETHATHIL, NADACKAVU MURI, PERINGALA.
2. SANTHOSH, -DO- 3. KRISHNANKUTTY, KALATHARA THEKKETHIL, -DO- 4. RAJAN, EDATHARA THEKKETHIL, PATHIYOOR KIZHAKKUM MURI, PATHIYOOR VILLAGE. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON1301-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J.
------------------------------- Crl.A.No.1643 of 2003 ------------------------------- Dated this the 13th day of January, 2014.
JUDGMENT
This appeal, at the instance of the State of Kerala, is directed against the judgment dated 4.9.2002 in S.C.No.149/98 of the court of Additional Sessions Judge, Fast Track (Ad hoc-1), Alappuzha, since by the above judgment, the learned Judge of the trial court has acquitted all the 4 accused, who faced prosecution for the offences punishable under sections 324 and 307 r/w 34 of IPC. Thus, the above order of acquittal is under challenge in the above appeal.
2. The prosecution case is as follows : The incident was on 7.6.1997 at 5 p.m. and the place of occurrence was the property in which toddy shop No.58 was housed, situated at Pathiyoor muri and village. CW1-Gopi and his brother-CW2-Soman had lodged a complaint before the Crl.A.No.1643 of 2003 2 Police against accused nos.1 and 2 and therefore they had grudge against CW1 and CW2. Hence, the accused persons came to the place of occurrence with dagger, swords and stick in furtherance of their common intention to do away with CW1 and CW2. The 4th accused told the 1st accused to kill CW1 and then accused nos.1 and 2 attacked CW1 with swords. The 1st accused inflicted injury on the left side of the forehead of CW1 with the sword and inflicted another injury on his left thumb. The 2nd accused with another sword inflicted injury over both hands of CW1. The 3rd accused beat CW1 on his back with a stick and caused him pain. The 4th accused stabbed CW1 with the dagger and caused an injury on his left elbow. The 2nd accused with the sword inflicted a wound on the right index finger. The 3rd accused dealt a blow on the back of CW2 with stick and caused pain. When CW3 tried to save CW1 and CW2, the 4th accused stabbed CW3 with dagger and caused him wounds on his lower jaw, head and hip. Crl.A.No.1643 of 2003 3 The accused who did the above acts are guilty of all the offences charged against them. On the above allegation, Crime No.184/97 was registered in the Kariyilakulangara Police Station for the said offences and on completing the investigation, a report was filed, based upon which, the above sessions case is instituted. Subsequently, the case was initially made over to the court of Additional Sessions Judge-I, Mavelikkara, and when the accused appeared in that court, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offences punishable under sections 324 and 307 r/w 34 of IPC and when the said charge read over and explained to the accused, they denied the same and pleaded not guilty. Thereafter, the case was transferred to the present trial court. During the trial of the case, Pws.1 to 12 were examined and Exts.P1 to P12 were marked and M.Os.1 to 3 were identified from the side of the prosecution. Crl.A.No.1643 of 2003 4 3. On completing the prosecution evidence, the accused were questioned under section 313 of Cr.P.C. and when the incriminating circumstances and evidence were put to them, they denied the same and the accused took a different contention, and thus according to them, they were attacked and inflicted injuries on them by Pws.1, 2 and 5 who are examined in the present case and also by CW3, at about 5 p.m. on 7.6.1997. According to accused nos.2 and 4, they were falsely implicated in the present case. At the time of the defence evidence, they had examined Dws.1 and 2 and also got marked Exts.D1 to D5 documents. The trial court after having considered the entire evidence on record, including that of the defence, has found that both the case and counter-case should have been decided by one court and the accused in this case are prejudiced as the counter- case was tried and disposed of by another court. Thus, it is further found that the prosecution case is without sufficient materials to prove the accused persons Crl.A.No.1643 of 2003 5 to be guilty of having committed the offences with which they are charged and they are liable to be acquitted. Accordingly, all the 4 accused in the above case are acquitted. It is the above finding and order of acquittal that are challenged in this appeal at the instance of the State.
4. Heard Adv.Smt.T.Y.Laliza, the learned Public Prosecutor for the appellant/the State and Adv.Sri.Rajasekharan Pillai, the learned counsel for the respondents/accused.
5. To prove the prosecution allegation, that the accused persons 4 in numbers, in furtherance of their common intention to commit murder Pws.1 and 2, they were attacked and assaulted and in the same transaction, the 4th accused caused hurt on CW3, when he tried to save Pws.1 and 2. The prosecution has examined Pws.1 to 12, among which, Pws.1 and 2 are the injured, Pws.3 to 5 are the occurrence witnesses, but PW3 turned hostile towards Crl.A.No.1643 of 2003 6 the prosecution and Pws.4 and 5 supported the entire case of the prosecution. Thus, the evidence of Pws.1 and 2-the injured are supported by the evidence of Pws.4 and 5. These witnesses when examined, deposed before the court strictly in terms of the prosecution allegation. When PW1 was examined, he had admitted that he gave statement to the Police while he was undergoing treatment and he had identified his statement as Ext.P1. PW1 has also identified M.Os.1 to 3 and the defence has got marked Ext.D1, which is a certified copy of the charge sheet in Crime No.184/97 of Kariyilakulangara Police Station. PW2 has also deposed in tune with the deposition of PW1 and he had also identified the material objects, ie., M.Os.1 to 3. As PW3 turned hostile, the contradictory portion of his 161 statement, was marked by the prosecution through PW3 as Ext.P2. As I indicated earlier, Pws.4 and 5 gave evidence in terms of the prosecution allegation. It was PW6, who was then working as the Assistant Surgeon of Government Crl.A.No.1643 of 2003 7 Hospital, Kariyilakulangara, who examined Pws.1, 2 and CW3, and issued respectively Exts.P3 to P5 wound certificates. The prosecution has got prepared Ext.P6-the sketch plan of the scene of crime, through PW7-the then Village Officer Pathiyoor. PW8 is an attestor, who was examined to prove Ext.P7 scene mahazar, but he turned hostile towards the prosecution. Similarly, Ext.P8 is the mahazar prepared for the seizure of M.Os.1 to 8, produced by the accused in the Police Station when they surrendered before the court, as per the direction contained in the bail order and PW9 was an attestor to such mahazar, but he also turned hostile towards the prosecution. PW10 is the then Sub Inspector of Kariyilakulangara Police Station, who recorded Ext.P1 FI Statement of PW1 and he had also prepared Ext.P1(a) to P1(c) body notes of Pws.1, 2 and CW3-the injured. It was PW10, who registered Ext.P9 FIR, on the basis of Ext.P1 FI Statement given by PW1. The further investigation was undertaken by the then C.I. of Crl.A.No.1643 of 2003 8 Police, Kayamkulam, who is examined as PW11 and during his deposition, he had identified Ext.P7 scene mahazar prepared by him and also identified Ext.P10 search memo, with respect to the search of house of A1 and A2, and he had also identified Ext.P11 and P12 search memos, respectively with respect to the search of the houses of A3 and A4. PW12-the then circle Inspector of Police has conducted the investigation between the period from 2.10.1997 to 29.10.1997 and he finally laid the charge.
6. The memorandum of evidence in this case consists of the defence evidence as well. As I indicated earlier, the defence taken by the accused in the present case is that the injured in the present case attacked the accused and they are falsely implicated in the present crime. As I mentioned earlier, to prove the above defence, when PW1 was examined, they got identified and marked Ext.D1 charge sheet in Crime No.184/97, in which Pws.1 and 2 and others are the accused. DW1 is the then Assistant Crl.A.No.1643 of 2003 9 Surgeon attached to Government Hospital, Kayamkulam, who examined the injured in Crime No.185/07, who are accused Nos.1 and 3 in the present case and he issued Ext.D2 and D3 wound certificates respectively of A1 and A3 in the present case. DW3 is the then Assistant Sub Inspector of Kariyilakulangara Police Station, who recorded Ext.D4 FI statement from A1 in the above crime case, who is the injured in the above counter-case, which I mentioned above. DW2 has also identified Ext.D4(a) and (b), which are respectively the body notes of A1 and A3- being the injured in the above counter-case. Ext.D5 FIR in the above counter case is also identified by PW2. These are the evidence and materials referred to by the learned Judge in the impugned judgment.
7. The learned Public Prosecutor vehemently submitted that the inconsistencies brought on record at the instance of the accused in the present case are not so material so as to discard the entire prosecution evidence Crl.A.No.1643 of 2003 10 and to disbelieve the prosecution case. It is also contended that the evidence of Pws.1 and 2, who are the injured in the present case, are supported by the evidence of independent witnesses who are examined as Pws.4 and 5, who witnessed the entire incident. So, according to the learned Public Prosecutor, even if there is some contradictions or infirmities in the evidence of Pws.1 and 2- the injured, in the light of the corroboratory evidence of Pws.4 and 5, the evidence of Pws.1 and 2 ought to have been taken into account by the learned Judge of the trial court. But the learned Judge, due to erroneous consideration and due to failure of proper appreciation of evidence, had came into a wrong conclusion and acquitted the accused. According to the learned Public Prosecutor, the above order of acquittal is unsustainable in view of the evidence and materials on record and therefore the judgment of the trial court is liable to be interfered with and the same is liable to be reversed and the accused are Crl.A.No.1643 of 2003 11 liable to be convicted.
8. On the other hand, the learned counsel appearing for the respondents/accused, after having invited my attention to paragraph nos.12 and 13 of the impugned judgment, it is strenuously submitted that the trial court has elaborately considered the evidence and materials on record and by assigning proper reasons, had refused to accept the case of the prosecution and proceeded to acquit the accused and therefore no interference is warranted.
9. I have carefully considered the contentions advanced by the learned Public Prosecutor for the appellant/the State and the learned counsel for the respondents/accused. I have also perused the evidence and materials on record. I have perused the judgment of the trial court carefully.
10. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in Crl.A.No.1643 of 2003 12 acquitting the accused and whether the appellant has succeeded in making out any case, so as to interfere with the order of acquittal. As rightly pointed out by the learned counsel for the respondents, the learned Judge of the trial court, through an elaborate discussion and on careful consideration of the evidence and materials and after due appreciation of the same, had rejected the prosecution allegation and found that the accused are not guilty. At the outset it is to be noted that the specific case taken by the accused in the present case is that they are falsely implicated in the present case and according to them, the prosecution witnesses, namely Pws.1 and 2 and CW3, volunteered to attack the accused herein and connected with such incident, a counter-case in Crime No.184/97 has already been registered in the very same Police Station. It is also relevant to note that the accused in the present case, particularly accused nos.1 and 3, had sustained injuries in the very same incident, as evident Crl.A.No.1643 of 2003 13 from the defence evidence brought on record. According to me, the learned Judge of the trial court, after due evaluation of the evidence of both the prosecution and the defence, had found certain material contradictions and infirmities and discrepancies in the evidence of the prosecution. I am not propose to repeat the evidence and materials on record, since the same are elaborately referred to by the learned Judge in the impugned judgment, particularly in paragraphs 12 and 13 of the same. It is also relevant to note that the prosecution has not mentioned about the incident, under which the accused in the present case sustained injuries and the said facts were brought on record by the defence through the deposition of the prosecution witnesses and also by producing defence evidence. There is no dispute that in the very same incident, the accused nos.1 and 3 had sustained injuries. But we do not know why the prosecution suppressed the above fact. It is also relevant Crl.A.No.1643 of 2003 14 to note that there is no explanation from the side of the prosecution for the injuries found on the body of A1 and A3. According to me, the discrepancies and infirmities noted by the learned Judge in the impugned judgment has to be appreciated in the backdrops of the defence advanced by the accused in the present case. First of all, it is relevant to note that the case of PW1, in his Ext.P1 FI statement, is that himself and others were attacked by the accused by using sword stick, but when he was examined in the court, he said go by to the above version and the case deposed by him before the court was to the effect that the accused attacked them with sword. The above case of PW1 was diametrically opposite to the case put forward by him during his first statement, ie., in Ext.P1 FI statement. The said fact itself is sufficient to disbelieve PW1 in the given facts and circumstances of the case. It is relevant to note that, according to PW1, he was inflicted a wound on his head and another wound on the forehead by the 2nd Crl.A.No.1643 of 2003 15 accused with the sword and PW1 is very particular that those injuries were inflicted on both the hands by the first accused with another sword. The above version of PW1 is against the core of the prosecution case, since according to the prosecution, the first accused inflicted only one injury on the forehead of PW1 and the 2nd accused inflicted injuries on both hands of PW1. According to PW1, he sustained injuries on the head, besides the injury on the forehead. The learned Judge of the trial court found that the above version of PW1 is not tallying with Ext.P3 wound certificate. Though PW1 has stated that the 3rd accused inflicted an injury on him with a stick, no corresponding injuries were noted in Ext.P3 wound certificate. The evidence of PW6, the Doctor who issued the wound certificate, is against the above version of PW1. It is also found by the learned Judge that as per the charge sheet and the FI statement, one of the allegation is that the accused had stabbed PW1 on the elbow of his left hand. Crl.A.No.1643 of 2003 16 But injury no.4 in Ext.P3, which could be inflicted with a dagger as stated by PW6 is a lacerated wound on the left dorsal aspect of the hand and Ext.P3 does not suggest that the said injury was on the elbow. When PW1 was examined, he had given up that case and according to him, the injury with a dagger inflicted on his right hand. So, the learned Judge concluded that the evidence of PW1, who sustained injuries does not tally with the prosecution case on material aspects and is against the wound certificate. It is also found that the deposition of Pws.2, 4 and 5 did not give evidence specifically regarding the attack on PW1 and the injuries sustained by him. The case of PW1 that, he received two injuries not corroborated or supported by Ext.P3 wound certificate, which has reference only to one injury, that too on the forehead of PW1. The learned Judge has also pointed out a lot of contradictions and discrepancies in the evidence of other injured, namely PW2. The claim of PW2 shows that he was inflicted injury Crl.A.No.1643 of 2003 17 on his left thumb by the first accused with sword. However, Ext.P4 wound certificate shows that PW2 sustained a lacerated injury of 3x3x2 cm. in size on the left thumb region, ie., near the web space. The evidence of PW5 also states that, the first accused with a sword caused an injury on the left thumb of PW2. The said fact, according to the learned Judge, is only an aspect on which atleast two prosecution witnesses and the wound certificate are in agreement. But the learned Judge has also found that PW1 and PW4 did not speak about the injury sustained by PW2. After considering the evidence of PW5, the learned Judge has found that this evidence is contradictory to the evidence of Pws.1, 2 and 4 and their evidence on this aspect are mutually contradictory and Ext.P4 wound certificate does not support the prosecution case, or the evidence of Pws.1, 2 and 4, in as much as no injury whatsoever on any part of the right hand of PW2 is mentioned in Ext.P4. It is also found that about the Crl.A.No.1643 of 2003 18 overtact of the 3rd accused on PW2, the prosecution case is that the former beat the latter with a stick on his back. PW2 deposed that he was beaten on his back by the 3rd accused. But after considering Ext.P4 wound certificate, the learned Judge has found that there is no corresponding injury to the alleged overtact. According to PW6, who issued Ext.P4 wound certificate, the injury no.2 therein could be inflicted with a stick, but the said injury was a diffused haematoma on the left side of the neck and not on back. So, according to the learned Judge, Ext.P4 is not in agreement with the evidence of PW2. It is also relevant to note that, according to the prosecution case, accused nos.1 and 2 used sword and accused 3 used a stick, whereas accused no.4 used a dagger to attack and inflicted injuries on the injured. The prosecution has no claim that the dagger was recovered and produced in the court. M.Os.1 and 2 are the swords alleged to have used by accused nos.1 and 2 and M.O.3 is the stick alleged to have Crl.A.No.1643 of 2003 19 used by the 3rd accused. The above material objects, as per the prosecution claim, were recovered not from the scene of occurrence or seized as per the disclosure statement made by accused, but the same were produced by the accused in the Police Station when they appeared at 11.30 a.m. on 9.10.1997. During the examination of Pws.1 and 2, they identified M.Os.1 to 3 as the weapons used by accused nos.1 to 3. But in Ext.P1 FI Statement, according to PW1, the weapons used by accused nos.1 and 2 were sword sticks. But those sword sticks were not produced and what produced are M.Os.1 and 2-swords. As per the version of PW1 in the FI Statement, the sword sticks used by accused nos.1 and 2 were at a length of an arm and both the edges were sharp with a pointed end. But the learned Judge has physically found that both M.Os.1 and 2 are much shorter than an arm as admitted by PW1 and M.Os.1 and 2 do not have a pointed end and the edges are not sharp. On the basis of the above discrepancies, the learned Judge has Crl.A.No.1643 of 2003 20 found that the prosecution has introduced new weapons during the investigation as the weapons used by accused nos.1 and 2 to inflict injuries on Pws.1 and 2. Thus, the learned Judge has further held that the prosecution has no explanation why the sword sticks mentioned in the FI statement have the present shape resembling the saw of a carpenter but without teeth. In the absence of convincing or plausible explanation, the trial court has refused to believe PW1 and his claim that M.Os.1 and 2 were mistakenly mentioned as sword sticks at the time of giving FI statement. The learned Judge has also found that PW2 though identified M.Os.1 and 2 to be the weapons used by accused nos.1 and 2, later, partly resiled from the said stand and in the cross examination, PW2 has stated that M.O.1 was the sword used by the 1st accused, but the sword used by the 2nd accused was not M.O.2.
11. Thus, on a scanning of the impugned judgment, it can be seen that, after having due regard to the evidence Crl.A.No.1643 of 2003 21 on record and after proper appreciation of the same, the court has correctly pointed out the inherent improbabilities and defect in the prosecution case, such as the discrepancies occurred in the deposition of Pws.1 and 2, who claim to be the injured witnesses, and the contradiction between the evidence of the injured as well as the ocular witnesses on one side and the medical evidence, consisting of wound certificate as well as the deposition of PW6 on the other hand, the introduction of new weapons by the prosecution during the course of investigation and the discrepancies occurred in identifying the material objects produced before the court and the improbabilities of the prosecution case with regard to the injuries noted in the wound certificate and the weapons used etc. Thus, the learned Judge has assigned satisfactory reasons which are supported by evidence and materials on record to reject the case of the prosecution. So, according to me, such reasons cannot be treated as perverse or Crl.A.No.1643 of 2003 22 illegal. The appellant has miserably failed in bringing to my notice any illegality in the approach of the learned Judge in appreciating the evidence and non consideration of any material evidence which are in favour of the prosecution, which otherwise, likely to influence the finding of the court. As the appellant fails to convince this Court that the finding of the court below and the reasons assigned are perverse, this Court will not be justified in interfering with such finding and in disturbing the acquittal recorded by the trial court. In a recent decision reported in Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88], it has held that, "8. In a recent decision in Murugesan & Ors. vs. State Through Inspector of Police, 2012 (10) SCC383 one of us Ranjan Gogoi, J.
elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup vs. King Emperor, AIR1934PC227(2) and series of subsequent pronouncements in para 21 summarized various Crl.A.No.1643 of 2003 23 principles as found in para 42 of Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC415as under:
21. xxxxxxxxxxxxxx "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is Crl.A.No.1643 of 2003 24 further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." (emphasis supplied). So, on examination of facts and circumstances of the case on hand and the evidence and materials on record, in the light of the guideline issued by the Honourable Apex Court in the above cited decision, it can be seen that the reasons assigned by the learned Magistrate in support of his finding are quite reasonable and legal, and it cannot be said that the same are perverse or illegal. The appellant has miserably failed to make out any compelling circumstances or substantial reasons to disturb the double presumption of innocence secured by the respondents/ accused as per the impugned judgment. Hence, according to me, this Court will not be justified in interfering with the order of acquittal, while exercising the appellate jurisdiction of this Court. Crl.A.No.1643 of 2003 25 In the result, I find no merit in this appeal and accordingly this appeal is dismissed. Sd/- V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge