Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946 CRL.REV.PET NO. 459 OF 2017 AGAINST THE JUDGMENT DATED 06.08.2016 IN CRA NO.370 OF 2014 OF THE I ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT DATED 07.11.2014 IN CC NO.106 OF 2008 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -II, ATTINGAL REVISION PETITIONER(S)/APPELLANT/ACCUSED:
1 LAL (DIED) AGED 55 YEARS AGED 55 YEARS, S/O.BHASKARAN, BAISHY NIVAS,ALTHARAMOODU, PULLAYIL, KODUVAZHANNOR VILLAGE,THIRUVANANTHAPURAM. 2* LEENA D S AGED 48 YEARS, W/O LATE LAL, LAVANYA, PULLAYIL P.O, KILIMANOOR,TRIVANDRUM -695601. 3* NEELULAL AGED 26 YEARS, S/O LATE LAL, LAVANYA, PULLAYIL P.O, KILIMANOOR, TRIVANDRUM- 695601. 4* VYSAL L AGED 24 YEARS, S/O LATE LAL, LAVANYA, PULLAYIL P.O, KILIMANOOR, TRIVANDRUM -695601. 5* VYDEHI AGED 76 YEARS, W/O BHASKARAN , BAISHY NIVAS, PULLAYIL P.O, KILIMANOOR, TRIVANDRUM -695601. *ARE IMPLEADED AS ADDITIONAL APPLICANTS NO.2 TO 5 VIDE ORDER DATED 27/3/2024 IN CRL M A 2/2024 IN CRL R P 459/2017. BY ADV SRI.M.R.SARIN
RESPONDENT/RESPONDENT/COMPLAINANT: THE STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM - 682031. BY SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 03.07.2024, THE COURT ON 17.07.2024 DELIVERED THE FOLLOWING:
P.G. AJITHKUMAR, J.
----------------------------------------------------------- ----------------------------------------------------------- Dated this the 17th day of July, 2024
ORDER
The revision petitioner was the accused in C.C.No.106 of
2008 on the files of the Judicial Magistrate of the First Class- II, Attingal. The learned Magistrate convicted and sentenced him. The appeal filed was dismissed by the I Additional Sessions Judge, Thiruvananthapuram. Aggrieved by the same, this revision has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code).
2. The revision petitioner expired. His legal representatives came on record and they are additional petitioners in the revision petition.
3. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
4. The petitioner stood trial on a charge for the offences under 294(b), 354, 452 and 506(ii) of the Indian Penal Code, 1860 (IPC). He was a police personnel. He
demanded a loan of Rs.10,000/-, but PW1 did not oblige. Hence the petitioner abused her over phone. Her husband informed the father of the petitioner regarding the same. Due to that enmity, at about 6.30 p.m. on 01.06.2007, he reached the house of PW1 possessed with a chopper, abused her and threatened to kill her. He caught hold of her hand and thereby outraged her modesty.
5. The trial court after considering the prosecution evidence, which consists of the oral testimonies of PWs.1 to 6
and Exts.P1 to P3 concluded that the petitioner had committed the offence under Sections 452 and 506(i) of the IPC. It was held that the prosecution failed to prove the offences under Section 294(b) and 354 of the IPC. The appellate court followed the suit.
6. The learned counsel for the petitioners would
submit that in the absence of any independent evidence, the courts below should not have found that the revision petitioner committed house trespass and intimidation. PW2 is the sister-in-law of PW1. She is residing in a neighbouring
house. PW2 deposed that on hearing sounds from the house of PW1, she reached there. At the front room of that house, she saw the revision petitioner possessed with a chopper. She did not see the revision petitioner committing the offending acts. What PW1 deposed is that coming to her house possessed with a chopper, the revision petitioner abused and threatened her. He caught hold of her hand and threatened. She left the house only when PW2 reached there.
7. Apart from the unreliable nature of the evidence of
PWs.1 and 2, the learned counsel for the petitioner highlighted the delay in lodging the complaint also as the reasons to discard the prosecution evidence. The incident was at or about 6.30 p.m. The husband of PW1 was not available in station. Both PWs.1 and 2 deposed that after contacting PW1’s husband, they decided to complain about the incident. When PW1 complained on the next day, it cannot be said that there occurred no inordinate delay.
8. As stated, PW2 did not see any of the overtacts of the revision petitioner. When she reached the house of PW1,
the revision petitioner was there and soon he left. Of course, her evidence may help to corroborate the version of PW1 that the revision petitioner reached the house as alleged by the prosecution. The evidence concerning intimidation, abusing and the assault is, however, that of PW1 alone. The trial court as well as the appellate court took the view that the version of PW1 with regard to the abuse and catching hold of her hand by the revision petitioner could not be believed. The part of her oral testimony that the revision petitioner was in possession of a chopper and he threatened her was believed. It is not prohibited in law in believing a part of the evidence of a witness while disbelieving the other part. But when the conviction has to be based on the sole testimony of such a witness, a strict scrutiny of the evidence is required.
9. There were not too many overt acts of the revision
petitioner going by the accusation. He came with a chopper, caught hold of the hand of PW1, abused and threatened her. When narrating such an incident there occurred serious discrepancies resulting in disbelieving a part of her evidence.
That being the nature of the evidence tendered by PW1 and the evidence of PW2 is not of avail to corroborate PW1’s evidence, I am of the view that the revision petitioner is entitled to get the benefit of doubt. In that view of the matter, the conviction concurrently rendered by the courts below cannot be sustained. Hence, this revision petition is allowed. The conviction of the revision petitioner and consequential sentence are set aside.
Sd/- P.G. AJITHKUMAR, JUDGE dkr APPENDIX OF CRL.REV.PET 459/2017 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY REGISTRAR OF BIRTH AND DEATH BY KADINAMKULAM GRAMA PANCHAYATH DATED 11.12.2023 Annexure A2 TRUE COPY OF LEGAL HEIR SHIP CERTIFICATE ISSUED BY THE THASILDHAR CHIRAYINKIYIL TALUK DATED 19.02.2024