Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 30TH DAY OF MAY 2024 / 9TH JYAISHTA, 1946 CRL.REV.PET NO. 1598 OF 2007 AGAINST THE JUDGMENT DATED 30.06.2004 IN CRA NO.131 OF 1998 OF ADDITIONAL SESSIONS COURT (ADHOC I), KASARAGOD ARISING OUT OF THE
JUDGMENT DATED 30.06.2004 SC NO.98 OF 1996 OF ASSISTANT SESSIONS
COURT, HOSDURG REVISION PETITIONER/RESPONDENT/COMPLAINANT: T.KRISHNAN, AGED 50 YEARS R/AT CHITTARI VILLAGE, HOSDURG TALUK,, KASARAGOD DISTRICT. BY ADV SRI.KODOTH SREEDHARAN RESPONDENT/APPELLANT/ACCUSED & STATE:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 OLAYAM DAMODARAN AGED 23/93 S/O.KUNHIRAMAN, BETHUPARA. 3 MOTTAMMAL PAVITHRAN, S/O.APPA AGED 21/93, ALAKKOD, PANAYAL. 4 P.K.ASHOKAN AGED 23/93, S/O.AMBU PARATHODU, RAVANESHWARAM. BY ADVS. SMT.ANITHA MATHAI MUTHIRENTHY PUBLIC PROSECUTOR SRI.SOJAN MICHEAL SRI.SHOJAN JACOB PP SRI SANGEETHARAJ N R
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.1598 of 2007 2
ORDER
It is quite unfortunate that an order of acquittal was passed by the first appellate court, that too, without going into the merits of the case and without even perusing the records produced by way of evidence. Even the status of
the accused was mentioned in the impugned judgment
incorrectly. An order of acquittal was passed merely on the ground that the weapon used for the commission of offence, a country gun, was not recovered in accordance with the mandate under Section 27 of the Evidence Act. It is stated that according to the witness, it was recovered jointly by
accused No.1 and 2, but according to the officer, who recorded the disclosure statement, it was through accused No.2. An inadvertent mistake has been committed by the trial court by referring the role of accused No.1 and 2 in the alleged recovery. The recovery mahazer clearly reveals that the country gun was recovered and detected based on the disclosure statement given by accused No.2 while under police custody. It is a case wherein a country gun was used
Crl.R.P.No.1598 of 2007 3 to inflict injury on the defacto complainant. He had given oral evidence as PW1. Medical evidence was also produced and the doctor who had drawn the wound certificate was also examined. The victim has identified all the accused persons. Specific overt act was also spoken to by the victim. Further, recovery made through accused No.2 based on the disclosure statement would come under the purview of
recovery/detection admissible under Section 27 of the Evidence Act. All the settled principles of appreciation has been overturned by the Sessions Judge that too without going into the merits of the oral testimony given by PW1 stood corroborated by the medical evidence tendered through the doctor, who had drawn the wound certificate on the victim.
2. It is submitted across the Bar that the concerned
Judge, who had delivered the judgment has retired from service. The jurisdiction vested with the first appellate court has not been exercised in its correct perspective and not even attended the evidence adduced by the prosecution Crl.R.P.No.1598 of 2007 4 inclusive of the oral testimony of witnesses, recovery under the mahazer based on the disclosure statement etc.
Hence, the order of acquittal and the impugned judgment
will stand set aside. The matter is remanded back to the first appellate court to address on the merits and demerits of the case and to dispose of the appeal afresh, for which the parties shall appear before that court on 25/06/2024. The Criminal Revision Petition is allowed in part accordingly. Sd/- P.SOMARAJAN JUDGE sv