Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 CRA(V) NO. 3 OF 2021 AGAINST THE JUDGMENT IN SC 208/2016 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA / II ADDITIONAL MACT, THODUPUZHA CP 6/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, PEERUMEDU
APPELLANT: A.A.JOSEPH, AGED 57 YEARS S/O.ANTONY, ALANCHERY HOUSE, 65TH MILE SPRING VALLEY, PERIYAR PEERUMADE VILLAGE, IDUKKI DISTRICT. BY ADVS. M.T.SURESHKUMAR SRI.R.RENJITH RESPONDENTS:
1 ANTONY @ ROY SON OF ANTONY, ALANCHERY HOUSE, 65TH MILE BHAGAM, SPRING VALLEY KARA PERIYAR VILLAGE, IDUKKI DISTRICT- 685533. 2 BENNY, SON OF VARGHESE, KARATTU HOUSE, 66TH MILE BHAGAM, SPRING VALLEY KARA PERIYAR VILLAGE, IDUKKI DISTRICT-685533. 3 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
OTHER PRESENT: SRI.V.S.SREEJITH, PP THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------- Crl.Appeal (V). No.3 of 2021 ------------------------------------------- Dated this the 02nd March, 2022
JUDGMENT
Vinod Chandran, J.
Sibling rivalry led to the allegation of attempted murder raised by the younger brother against the elder brother. The accused, two in number, the elder brother and his friend, were charged under Sections 341,326,307 r/w 34 IPC. The accused were acquitted by the learned Sessions Judge against which the appeal is filed by the injured victim. Sri R.Ranjith argued for the appellant and the Government
was represented by the learned Public Prosecutor Sri.V.S.Sreejith. None appears for the accused respondents against whom service is complete.
2. Chandrappa and others v. State of Karnataka (2007 (4) SCC 415) restated the principles regarding the scope of the power of appellate Court to re-appreciate, review or reconsider evidence and interfere with an acquittal. The general principles were encapsulated in the following manner:
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 reconsider 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 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.
3. PW1 was the injured who made the FIS
marked as Ext.P1. According to him, on 06.11.2011 at about 6:00 p.m in front of the Milma Society on the 66th mile, the autorickshaw in which he was travelling was waylaid by the accused. Both of them had iron rods in their hands with which, the victim allegedly was assaulted mercilessly. The first blow delivered by A1 was deflected by the victim, which however caused an injury on his left hand. Then both A1 and A2, it was alleged, repeatedly beat him on his legs, hands and all over his body. His arms, legs and head sustained bleeding injuries. A2 is also alleged to have stabbed
his head repeatedly with a knife. Hearing the noise, one Thankachan and an auto driver, by name Prince, came running, hearing the commotion. When the people gathered at the scene of occurrence, the accused fled and Thankachan and Prince took the victim in an auto to the hospital. The motive was alleged to be enmity between the brothers by reason of a dispute regarding the use of a pathway and the right to take water. A1 is said to have objected to the same, for reason of which, PW1 filed a suit, got an order of injunction
against obstruction and appointment of an Advocate Commissioner for local inspection. This enraged the elder brother who attempted to kill the younger brother, is the allegation.
4. The victim was examined as PW1. He spoke of the assault as noted in the FIS and identified MO1 and MO2 as the iron rods with which he was attacked. The suggestion in cross-examination was that the autorickshaw in which PW1 was travelling toppled and
injuries were sustained in the accident. In cross- examination, PW1 said that the two accused came in another autorickshaw and waylaid the autorickshaw in which PW1 was travelling. However, this was not stated to the Police.
5. PW2 said that while he was coming with
PW1, he saw another autorikshaw coming from the opposite side, on the wrong lane, forcing him to stop his vehicle. He saw A1 alighting from the auto and approaching them with something hidden at his back. When PW1 tried to come out of the autorickshaw, A1 beat him on the forehead. Then A1 shouted at PW2 to
flee and caught on the collar of PW1. Then A2 approached and again shouted at PW2 to go away. When PW2 was threatened with physical harm, he fled with his autorickshaw. It was PW2's deposition that he went home and after some time took another hire, and then he saw PW1 being taken to the hospital in another autorickshaw. He also admitted that he did not see the registration number of the other autorickshaw on the
crucial day. But later he came to know that it was KL-37 A 1189.
6. PW3 to PW6 who were proffered as eye
witnesses turned hostile. According to them they came to the scene of occurrence on hearing a commotion. PW3 said that he did not see A1 and A2 in the vicinity of the scene of occurrence. According to PW4, PW3 informed him about something happening near the Milma and warned him not to get involved. PW4 summoned people over the telephone and he saw PW1 injured, at the scene of occurrence. He also did not speak of having seen A1 or A2. He also stated that he does not know who took PW1 to the hospital. It was his
statement that PW1 went to the hospital in the auto in which he came. In cross-examination he also said that he heard that PW1 fell into the canal and was injured. According to PW5, he was returning from a hire when his vehicle was stopped in which PW1 was taken to the hospital. In cross-examination he also said that what he heard from the people gathered was that PW1 was
thrown out of an autorickshaw. PW6 also did not witness the incident but spoke of having helped PW1 to get into the auto, to be taken to the hospital. He also said that he heard that PW1 fell into the canal.
7. PW7 is the Village Officer who prepared the
scene plan at Ext.P2. PW8 is a witness to Ext.P3 scene mahazar who feigned ignorance about what was written in the document. PW9 witnessed Ext.P4 seizure mahazar by which two iron rods and knives were recovered. The witness however denied having seen the recovery of the weapons and also denied the presence of A1 in the
place of recovery. PW10 witnessed Ext.P5 seizure mahazar by which a slipper was recovered from A2's autorickshaw. PW10 also turned hostile. PW12 is the Inspector of Police who received the site plan Ext.P2 and FSL report-Ext.P7. PW13 is the I.O who conducted the investigation. He spoke of the seizure of MO3 slipper, arrest of the two accused evidenced by arrest memo, inspection memo and arrest notice produced as Ext.P8 series and P9 series respectively, Ext.P4 recovery of weapons marked as MO1 series and Ext.P4(a) confession statement and the seizure of MO4 slipper from the auto. Forwarding note was marked as Ext.P10 and property list as Ext.P11 and Ext.P11(a), wound certificate was marked as Ext.P12. He also marked Ext.P13, FIR recorded by another officer who was known to him. PW14, Hospital Administrator, marked Ext.P12 wound certificate issued from the hospital in which PW1 was admitted. He also proved Ext.P15 OP Card dated 06.11.2011 by which PW1 was treated at the hospital.
8. PW11 is the Doctor who examined PW1 on 07.11.2011. The injuries noted in the wound certificate at Ext.P6 were as follows:-
1. Type I open fracture tibia, fibula (Rt) leg,
2. Type I open fracture fibula (Lt)leg lower 3rd,
3. Galeazzi fracture (Lt) forearm,
4. Type II open fracture both bone (Rt)forearm,
5. Fracture ocipital bone, neumocephalus
6. Lacerated wound on scalp. The Doctor opined that injury Nos. 1 to 5 could be caused by MO2 and injury No.6 with the blunt edge of MO2. Admittedly there was no stab injury as spoken of by PW1. PW1 specifically deposed that he was repeatedly stabbed by A1.
9. Admittedly PW1 was in inimical terms with
A1, his elder brother. PW1's version is that he was waylaid by A1 and A2 and beaten up as also stabbed in the presence of PW2 the driver of the auto in which PW1 was travelling. He also said that the incident was witnessed by PW2 to PW6 who came there hearing the commotion. PW2 admitted that he was driving the auto in which PW1 was travelling which was waylaid by another auto in which the accused came. The presence of the second auto was spoken of by PW1 only in cross- examination. PW1 said that A1 & A2 approached the auto in which he was travelling and A1 dragged him out of
the Auto and beat him on his forehead which was deflected. PW2 however said that A1 came first and while PW1 was trying to get out of the Auto a blow was delivered on his head. PW1 did not speak about the blow delivered on his forehead while he was getting out of the auto. PW2 said that first A1 asked him to flee and then A2 came and repeated the same thing. PW2 also said that after A1 hit PW1 on his forehead, PW2 ran away when threats were levelled at him by both A1 and A2. PW1 did not speak of PW2 having fled the crime scene. It is the version of PW2 that he went home sat there for some time to calm himself and went out on a hire of his Auto; very improbable conduct. The version of PW1 and PW2 differs materially and in the context of PW3 to PW6; alleged to be eye witnesses having turned hostile, there arise a reasonable doubt as to the story spoken of by PW1. The medical evidence also does not fully corroborate the attack as narrated by PW1. It is very significant that there is no stab injury on the head of PW1 as has been categorically deposed by him. The injuries are also possible of
being caused with a fall from an autorickshaw as has been spoken of by some of the witnesses, though as hearsay.
We find no reason to differ from the judgment
of the trial court. The trial court's view is a reasonable one and according to us the only one, as the evidence led does not commend us to find a possibility of the accused being involved. We hence reject the appeal, confirming the acquittal ordered by the trial court. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- C.JAYACHANDRAN, JUDGE lsn/jma