Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 CRA(V) NO.46 OF 2017 AGAINST THE JUDGMENT IN S.C.NO.1092/2015 DATED 15.11.2016 OF THE COURT OF SPECIAL ADDITIONAL SESSIONS JUDGE (MARADU CASES) KOZHIKODE. (C.P.NO.133/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NADAPURAM) APPELLANTS/ PARENTS OF VICTIMS: 1 KANARAN, AGED 63 YEARS, S/O. CHANDU, RESIDING AT VELLOLIPPIL, NETTOOR P.O, VIA KAKKATTIL, VADAKARA. 2 SUSEELA, W/O. KANARAN, AGED 57 YEARS, RESIDING AT VELLOLIPPIL, NETTOOR P.O., VIA KAKKATTIL,VADAKARA. BY ADVS. SRI.SAJITH KUMAR V. SMT.DEEPA RAJESH SM SRI.VIVEK A.V. SRI.GODWIN JOSEPH SMT.APARNA CHANDRAN SMT.REMYA VARMA N.K RESPONDENTS/ STATE/ACCUSED: 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, THROUGH SI OF POLICE, KUTTIADY POLICE STATION, HIGH COURT OF KERALA, ERNAKULAM,PIN-682 518. 2 RAJESH, S/O. KORAN, AGED 32 YEARS, KARUVANTEVIDA HOUSE, KAIVELI, PIN-673 506. Crl.A.(V) No.46 of 2017 - 2 -
3 BINU, S/O. KANARAN, AGED 35 YEARS, MAKKAVUMMAL HOUSE, MULLAMBATH, VADAKARA, PIN-673 513. 4 SASI, S/O. POKKAN, AGED 40 YEARS, THAYYULLATHIL HOUSE, MULLAMBATH, PIN-673 513. 5 BABU, S/O. KRISHNAN, AGED 42 YEARS, MOILOTH HOUSE, NARIPPATTA-673 506. 6 RAJEEVAN, S/O. CHATHU, AGED 42 YEARS, ERATTENCHAL HOUSE, MULLABATH, PIN-673 513. 7 ASHOKAN, S/O. KADUNGON, AGED 48, PUTHIYEDATH, PARAMBATH HOUSE, MANIYOORTHAZHA, NARIPPATTA, PIN-673 506. 8 MANEESH, S/O. CHANDRAN, 31 YEARS, KILIYANATTUMMAL HOUSE, THINOOR NARIPATTA, PIN - 673 506. 9 SAJITH, S/O. NANU, AGED 27 YEARS, VALLITHARA HOUSE, CHAMBILORA, KAIVELI, PIN-673 506. 10 MANOJAN, S/O. KADUNGON, AGED 40 YEARS, PONNAMPARAMBATH HOUSE, THINOOR, NARIPATTA PIN-673 506. 11 PRAMILESH, S/O. KANNAN, AGED 38 YEARS, KOYYALUMMAL HOUSE, THINOOR,NARIPPATTA PIN-673 506. 12 RANJITH S/O. CHATHU, AGED 31 YEARS, MARUTHULLA, PARAMBATH HOUSE,THINOOR, NARIPPATTA, PIN-673 506. 13 NANDANAN P.P. S/O. KUMARAN, AGED 37 YEARS,PONNAMPARAMBATH HOUSE, THINOOR,NARIPPATTA, PIN-673 506. 14 PRAKASAN S/O. KUMARAN, AGED 40 YEARS, KOYILOTT POYIL HOUSE, THINOOR, NARIPATTA, PIN-673 506. 15 SURESH @ PARA SURESH, S/O. KELAPPAN, AGED 48 YEARS, EDONEEMMAL HOUSE, THINOOR,NARIPATTA, PIN-673 506.
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16 RAJESH, S/O. KUNHUNNI, AGED 33 YEARS, VENGILIYI HOUSE, SUPERMUK, NARIPATTA. PIN-673 506. 17 DINEESH S/O. KUMARAN, AGED 32 YEARS, MEKKOTTUMMAL HOUSE, ARAKKALAPOYIL, THINOOR, NARIPPATTA, PIN-673 506. 18 SYAM SYAMKUMAR C.P., S/O. KUMARAN, AGED 24 YEARS, CHATHOTH POYIL HOUSE, NARIPATTA, PIN-673 506. 19 MANOJAN, S/O. CHATHU, AGED 42 YEARS, NELLIYULLA,PARAMBATH HOUSE, NEAR SARIGA BUST STOP, KAIVELI, NARIPATTA, PIN-673 506. 20 KRISHNAN, S/O. CHATHU, AGED 58 YEARS, OLAMKAVIL HOUSE, ARAKKALAPOYIL,THINOOR, NARIPPATTA, PIN-673 506. 21 SURESH, S/O. KANNAN, AGED 45 YEARS, MEKKOTTUMMAL HOUSE, IRUMBANTHADAM,MULLAMBATH, PIN-673 513. 22 BINU, S/O. KUMARAN, AGED 36 YEARS, KANDIYIL HOUSE, THAVULLAKOLLI, THINOOR,NARIPATTA, PIN-673 506. 23 REJI THOMAS, S/O. THOMAS, AGED 33 YEARS, PANAKKAL HOUSE, MULLAMBATH, PIN-673 513. 24 BABU, S/O. POKKAN, AGED 41 YEARS, NEELIYANGATTUMMAL HOUSE, THINOOR, NARIPPATTA, PIN- 673 506. 25 NANU, S/O. CHATHU, 58 YEARS, VERAMKOLI KAIPRATH HOUSE, THINOOR,NAIRPPATTA, PIN- 673 506. 26 ASHOKAN, S/O. POOKAN, AGED 51 YEARS, PONNAMPARAMBATH HOUSE, THINOOR, NARIPPATTA, PIN-673 506. 27 ASHOKAN, S/O. CHATHU, AGED 48 YEARS, CHELANIPOYIL HOUSE, CHAMBILORA, THINOOR, NARIPPATTA, PIN-673 506. 28 ASHOKAN, S/O. KANANRAN, AGED 48 YEARS, PATHIYARATHUMMAL, KOVAKKANDY HOUSE, NARIPPATTA, PIN-673 506.
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29 BIJU, S/O. KUMARAN, AGED 35 YEARS, AREEKKARA KULATHINTE MEETHAL HOUSE, CHEEKKONNU, PIN-673 506. 30 SHIBIN, S/O. KUMARAN, AGED 25 YEARS, KANDIYIL HOUSE, PONNAMPARAMBATH HOUSE, THAVULLAKOLLI, PIN- 673 506. 31 VIJESH, S/O. CHATHU, AGED 28 YEARS, THAYYIL HOUSE, KAKKUZHIPEEDIKA,NARIPPATTA, PIN-673 506. 32 SHAJI, S/O. NANU, AGED 33 YEARS, CHEELUPARAMBATH HOUSE, CHEKKONNU,PIN-673 506. 33 GOPALAN, S/O. KANNAN, AGED 47 YEARS, KANDIYIL HOUSE, PONNAMPARAMBATH HOUSE, THAVULLAKOLLI, THINOOR,NARIPPATTA, PIN-673 506. 34 LIKESH, S/O. KUNHIKKANNAN, AGED 29 YEARS, KUYITHEREEMMAL HOUSE,NARIPPATTA, PIN-673 506. 35 RANJITH CHERUVATH, S/O. GOPALAN, AGED 36 YEARS, PAROLLAPARAMBATH HOUSE, MULLAMBATH, PIN- 673 513. 36 DILEESH, S/O. KUMARAN, 34 YEARS, MEKKOTTEMMAL HOUSE, ARAKKALAPOYIL, THINOOR, NARIPPATTA,PIN-673 506. 37 CHANDRAN, S/O. KELAPPAN, AGED 48 YEARS, MAVULLI HOUSE, PONNAMPARAMBATH HOUSE, THAVULLAKOLLI, THINOOR, NARIPPATTA, PIN-673 506. 38 N.P. SREEDHARAN PRADEEPAN, AGED 38 YEARS, S/O.MATHA, NELLIYULLAPARAMBATH HOUSE, MAKKAVUMMAL, MULLAMBATH, PIN-673 513. 39 ANOOP, S/O. NANU, AGED 30 YEARS, VENGOREMMMAL HOUSE, CHEEKKONNU, PIN-673 506. 40 NAJILESH, S/O. NANU, AGED 30 YEARS, VERAMKOLIKAIPRATH HOUSE, ARAKKALPOYIL, PIN-673 506. 41 SAJU CHELAKKADAN SAJU, S/O. POKKAN, AGED 33 YEARS, CHELAKKADAN HOUSE, PONNAMPARAMBATH HOUSE, THAVULIAKOLLI, THINOOR,NARIPPATTA, PIN-673 506.
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42 RAVEENDHRAN P.O., S/O. KANNAN, AGED 42 YEARS, PARAYULLAPARAMBATH HOUSE, MULLAMBATH, PIN-673 513. 43 LINITH, S/O. NANU, AGED 26 YEARS, CHALUPARAMBATH HOUSE, KOYYALIL,NARIPPATTA, PIN-673 506. 44 KANARAN, S/O. POKKAN, AGED 58 YEARS, CHUZHALI HOUSE, MUDIKKAL, MULLAMBATH, PIN-673 513. 45 BIJESH, S/O. KANARAN, AGED 31 YEARS, CHUZHALI HOUSE, MUDIKKAL, MULLAMBATH, PIN 673 513. 46 KUMARAN SHAPIL KUMARAN, S/O. KANNARAN, AGED 50 YEARS, EKARAMPARAMBATH HOUSE, CHEEKKONNU, PIN-673 506. 47 KUNHIKKANARAN, S/O. POKKAN, AGED 61 YEARS, KUYITHEREEMMAL HOUSE, NARIPPATTA, PIN-673 506. 48 SHIJU, S/O. KANARAN, AGED 30 YEARS, KANDANCHOLA HOUSE, THAVULLAKOLLI, THINOOR, NARIPPATTA, PIN-673 506. 49 SREEJITH, S/O.GOPALAN, AGED 38 YEARS, VENGOREMMAL HOUSE, CHEEKKONNU, PIN-673 506. 50 ANANDAN, S/O. KANNAN, AGED 53 YEARS, MUNDIYOTTUMMAL HOUSE, ARAKKALAPOYIL, THINOOR, NARIPPATTA, PIN-673 506. 51 T.P. PAVITHRAN, S/O. CHANDAMMAN, AGED 47 YEARS, THANIYULLAPARAMBATH HOUSE, CHEEKKONNU WEST, NARIPPATTA, PIN-673 506. 52 V. NANU, S/O. ONAKKAN, AGED 53 YEARS, VENGOTTUMMAL HOUSE, CHEEKKONNU, NARIPPATTA, PIN- 673 506. 53 K. BABU KATALI BABU, S/O. NARAYANAN NAIR, AGED 48 YEARS, MALIKKANDY HOUSE, THINOOR, NARIPPATTA, PIN-673 506. 54 EDONI SUDHEESH, S/O. NANU @ PERAMBRA NANU, EDONEEMMAL HOUSE, MULLAMBATH,PIN 673 513. 55 ANEESH, S/O. KUMARAN, AGED 38 YEARS, KUYITHEREEMMAL HOUSE, KANDOTHUKUNI, NARIPPATTA, PIN-673 506.
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56 GOPALAN, S/O. KELAPPAN, AGED 51 YEARS, MAVULLI HOUSE, PONNAMPARAMBATH HOUSE, THAVULLAKOLLI, THINOOR, NARIPPATTA, PIN-673 506. 57 ASHOKAN, S/O. KELAPPAN, AGED 45 YEARS, CHALIYALTHOTTIL RESIDING, KOLATTAYIL HOUSE, NIDUMANNUR. 58 RAVEENDHRAN, S/O. KANARAN, AGED 43 YEARS, NEELIYAGOTTUMMAL HOUSE, THINOOR, NARIPPATTA, PIN-673 513. 59 NANDAKUMAR @ NANDAN, S/O. POKKAN, AGED 41 YEARS, PAYYEKKANDY HOUSE, MULLAMBATH, PIN-673 513. 60 RAVEENDRAN, S/O. CHATHU, AGED 49 YEARS, KUNNUMMAL HOUSE, NARIPPATTA, PIN-673 506. R1 BY SRI.ALEX.M.THOMBRA, SENIOR PUBLIC PROSECUTOR. R2 TO R60 BY ADVS.SRI.P.N.SUKUMARAN, SRI.K.VISWAN, SRI.AKHIL S.VISHNU.
THIS CRIMINAL APPEAL BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.(V) No.46 of 2017 - 7 - K.Vinod Chandran & C.Jayachandran, JJ. --------------------------------------- Crl.A (V) No.46 of 2017 --------------------------------------- Dated this the 30th November 2021
JUDGMENT
Vinod Chandran, J.
The grieving parents of an unfortunate victim, pelted to death in an incident of stone throwing by a rival political group are the appellants. The victim was an active worker of Hindu Aikyavedi participating in a dharna against
the illegal quarries functioning in Naripatta Grama Panchayat. According to the prosecution, the Grama Panchayat was ruled by the Communist Party of India (Marxist) [CPI(M)], whose members conspired to disrupt the dharna with bombs and stones and also kill at least one of the Hindu Aikyavedi workers. The 59 accused, who belonged to a group of 200,
attacked the peaceful dharna, pelted stones and exploded bombs and killed the son of the appellants; intentionally and with premeditation.
2. The prosecution examined twenty nine witnesses, as PWs.1 to 29, and marked fifty five documents, as Exts.P1 to P55, and three material objects, as Mos.1 to 3. The defence examined two witnesses, as DWs.1 and 2, and marked Crl.A.(V) No.46 of 2017 - 8 -
twenty seven documents as D1 to D26(a). There were also six Court exhibits marked, as Exhibits C1 to C6. The accused were acquitted of the charges under Sections 143, 147, 148, 307, 302, 120B read with Section 149 IPC and Sections 3 and 5 of the Explosives Substances Act.
3. Sri.V.Sajithkumar, learned Counsel for the
appellants, took us through the evidence meticulously. It was argued that PWs.1 to 4 spoke in the same voice and according to them, A1 proclaimed aloud that at least one worker of the Hindu Aikyavedi would be killed by pelting stones at the peaceful dharna. A1 had specifically aimed a stone at the deceased, who fell and was taken to the hospital dead. PW5,
the Assistant Sub Inspector, corroborated the incident of
pelting of stones; but, for obvious reasons failed to identify the perpetrator. The wound certificates of PWs.1 to 3 establishes their presence in the scene of occurrence. The factum of bombs thrown was proved by scientific evidence. The conspiracy has also been clearly proved by the evidence of PWs.15 and 16. The Trial Court has acquitted the accused based on surmises and conjectures.
4. Sri.P.N.Sukumaran and Sri.K.Viswan appeared for the respondents 2 to 60. It was argued that the prosecution Crl.A.(V) No.46 of 2017 - 9 - has failed to establish the crime against the accused. None of the accused were involved in the incident of stone pelting
and they were roped in for reason of their political affiliation. The learned Counsel took us through the various documents in an attempt to establish that the so-called eye witnesses were planted witnesses. The order of acquittal has to be sustained, is the contention.
5. As to the incident, there is no dispute and the
evidence of the police officers clearly indicates that there was a law and order situation. A group of persons converged; on the scene where a dharna was being carried on, throwing bombs and stones at the dharna. The victim was felled by a stone thrown at him and there were ten injuries, of which eight were abrasions, one a superficial lacerated wound and the other having depressed fracture of right temporo parietal bone of skull, which was a traumatic brain injury. As opined by the doctor, the fatal injury was by reason of blunt force
on the right side of head. The doctor who conducted post-mortem examination, PW8, deposed that the injury can be caused by pelting of stones. Injury Nos.2 to 10 was opined to be possible in a fall; but injury No.1 is the fatal one, which caused the death of the victim. PW8 also denied that Crl.A.(V) No.46 of 2017 - 10 - the fatal injury could be caused by a fall. The evidence as found by the Trial Court clearly establish that the death was a homicide and it was caused in the stone pelting itself.
6. The case of the prosecution is that, on the
previous day, ie., on 15.12.2013, A50 to A54 assembled at the Local Committee Office of the CPI(M) at Kaiveli and conspired to commit the murder of at least one of the participants in
the dharna. The witnesses examined by the prosecution to prove conspiracy are PWs.15 and 16. According to the prosecution, the place of conspiracy is proved by Ext.C5
mahazar, which indicates a double storey building near the Kakkat-Kaiveli road, wherein the Local Committee Office of the CPI(M) is located in the first floor. PW15, however, deposed that the conspiracy took place in the room of one Prathibha Library, where he was reading a newspaper in the adjoining room. He identified A50 and A53 with two other identifiable persons having conspired to kill at least one of the workers of the Aikyavedi. He also deposed that, he saw A50 to A54 coming out of the room in which the conspiracy was hatched. PW16 spoke of having seen the conspirators emerging
from a building, which was not situated on the side of Thiroor road; thus again disputing the scene of conspiracy as Crl.A.(V) No.46 of 2017 - 11 - is seen from Ext.C5. Ext.P10 contradiction marked from his 161 statement speaks of PW16 having gone to Prathibha Library on the side of Thiroor road for reading newspaper. Prathibha Library is situated 15 metres south-east of the double storey building and not a part and parcel of the building in which
the Local Committee Office is functioning. There was no clarity as to the place where the conspiracy had taken place, which was at variance from the site indicated in Ext.C5, additional mahazar, and the deposition of the
witnesses-PWs.15 and 16. PW14 in his statement to the police did not speak of having disclosed the conspiracy, which he overheard. There was also no statement to the police that A50 exhorted the others to ensure that at least one person is killed. PW16, in any event, had not directly overheard the conspiracy and he only saw A50 to A54 coming out of the room. He was told about the conspiracy by PW15 when he went for the
cremation of the deceased. The contradictions, marked as Exts.D18 to D20, were statements which put to peril his version that he saw A50 to A54 coming out of the room in Prathibha Library, whereas his statement before the police was that they were seen coming out from the Local Committee Office. PWs.15 and 16 did not have a consistent case and the Crl.A.(V) No.46 of 2017 - 12 - place of conspiracy, as deposed by them, was at variance from the prosecution case, which statements were proved by the I.O, PW29. The Trial Court has also pertinently noticed the evidence of PW29 to the effect that Section 120B was added
after examining PWs.15 and 16. However, Ext.P45 report, including Section 120B IPC, was filed on 02.01.2014, which delay was not explained. According to the Trial Court, the delay assumes importance and validates the case that PWs.15 and 16 were introduced subsequently to prove the theory of conspiracy. The Trial Court, according to us, rightly so, found no conspiracy and rejected the case of the prosecution to that extent.
7. The Trial Court with the available evidence found that the Hindu Aikyavedi had convened a dharna at Kaiveli
town protesting against the illegal quarries carried on within the Panchayat, allegedly with the collusion of the ruling party of the Panchayat. The dharna, carried out with permission from the police, was in a vacant space, situated between a Textiles shop and a DTP shop at 5.30 p.m. When the Convenor of the dharna was addressing the gathering, a group of CPI(M) workers, numbering 200, formed themselves into an unlawful assembly and came towards the dharna. The police
Crl.A.(V) No.46 of 2017 - 13 - prevented their approach at a distance of about 20 metres from the place where the dharna was carried out. At this time, some of the persons from the unlawful assembly started
pelting stones and two country bombs were exploded. The prosecution was that A19 threw the first bomb, which fell on the DTP shop and exploded. The second bomb was exploded just near the vacant place where the dharna was going on. About 15 workers of the Aikyavedi sustained injuries in the pelting and explosion. The deceased succumbed to the fatal injury to his head.
8. PWs.1 to 3 are said to be persons who participated in the dharna and also sustained injuries in the incident, for treatment of which they were admitted in the Government Hospital at Kuttiadi. PW4 is said to be an
independent witness, who, along with another person, had taken the deceased to the Government Hospital at Kuttiadi and from there to the Medical College Hospital, Kozhikode. PWs.1 to 3 and 4 are relied on by the prosecution and the defence allege them to be planted witnesses.
9. PW1 was the person who gave Ext.P1, FIS to PW24. PW1 spoke of the dharna and the unlawful assembly having threateningly approached the peaceful protesters. When the Crl.A.(V) No.46 of 2017 - 14 -
police prevented the CPI(M) workers, A1 (named as Ragesh) exhorted that at least one is to be killed and threw a stone at the deceased. The stone hit the deceased on the head and he fell down, when A19 threw a bomb which fell near the place where PW1 was sitting. The CPI(M) and DYFI workers who converged at the place started pelting stones from all sides. One Ramachandran and Sarun also suffered injuries. Again, a bomb was thrown at them by a fat bald person wearing a blue
shirt. It exploded at a distance from where they were sitting. The police sprung into action and dispersed the persons who conversed on the dharna. PW1 says that the
injured, including PW1, were taken in a jeep to the Kuttiadi Government Hospital by Sunil and Vysakh. The doctor examined Anoop and found him to be grievously injured and instructed them to take him to the Medical College Hospital. The other injured were treated at the Government Hospital, Kuttiadi itself.
10. PW1 further alleged that the assailants had
attacked the persons peacefully holding dharna with intent to kill and that there was always conflict between DYFI and BJP, in the area due to political differences. Ramachandran and Sarun, who were injured, are PWs.2 and 3 and Vysakh, who is Crl.A.(V) No.46 of 2017 - 15 - said to have taken the injured to the hospital, is PW4. Sunil, who was one another person who helped the injured, spoken of in the FIS has not been examined. PW1 to PW4 are the eye witnesses to the incident as per the prosecution. The Trial Court, after examination of the post-mortem report as
per Ext.P7, found the death to be a homicide and the conspiracy to have been not proved by the prosecution. The eye witnesses were also disbelieved, which we would examine only to understand whether the acquittal of the accused by the Trial Court is a possible view and also a reasonable one as discernible from the evidence led by the prosecution.
11. PW1, who gave the FIS, before Court deposed that the injured Hindu Aikyavedi workers were rescued by the police from the scene of occurrence and dropped them at Kakkattil. This was in conflict with what was stated in the
FIS. Further, along with PWs.2 and 3, PW1 reached the Government Hospital, Kuttiadi in an autorickshaw. The doctor examined the injured and admitted them to the hospital; from where the FIS was given at around 9.30 p.m. He also says that at about 10.30 p.m., the injured returned to their houses due to the fear that their rivals would attack them in the hospital. He identified A1 and A20, but could not identify Crl.A.(V) No.46 of 2017 - 16 - A19. In cross-examination, he asserted that he was not taken to the hospital along with Anoop, the deceased. Anoop alone
was taken to the hospital by Sunil and Vysakh (PW4). He reiterated in cross-examination that the first bomb exploded quite near the place where he was sitting along with others. In the FIS, the name of A1 was stated differently and A20 was not referred to at all. PW2 also said that the injured, 15 in number, were rescued by the police and dropped at Kakkattil from where along with PW1 and PW3, he went to the Government Hospital at Kuttiadi. PW2 also identified A1, A2, A3, A5,
A12, A20, A25 and A31; but failed to identify A19. In cross-examination he said that though there was an injury on the backside of his head, there was no bleeding, but there was pain. PW3, Sarun, also spoke in tandem with the testimony of PWs.1 and 2.
12. The learned Counsel for the appellant would
contend that PWs.1 to 3 are reliable witnesses, especially when they are injured witnesses. PW4 said that Anoop was taken in a police jeep, first to the Government Hospital,
Kuttiadi and then to Medical College Hospital in an Ambulance. He does not speak of having helped any other injured to the hospital. Though he spoke of the stone Crl.A.(V) No.46 of 2017 - 17 -
throwing by A1 in tune with the testimony of PWs.1 to 3, he had omitted to make that statement to the police. He also had not spoken of PW20 having thrown a bomb, to the police. PWs.1 to 3 had a different version from the FIS made by PW1. In the FIS, PW1 had stated that he along with the other witnesses had gone to the G.H., Kuttiadi with the grievously injured Anoop. The wound certificate of Anoop at Ext.P3 shows the time of examination as 6.10 p.m. The patient was immediately
referred to M.C.H., Kozhikode. If the other injured had accompanied Anoop, then necessarily they would also have been
examined immediately thereafter. However, the wound certificates of PWs.1 to 3, marked as Exts.P4 to P6, are at 7.30 p.m. Further, Exts.P4 to P6 merely records the pain complained of by PWs.1 to 3 and clearly indicates no external injuries. The pain complained of by PW1 is on the right back, PW2 on the left arm and PW3 on the right side of head. We also do not see any grievous injury which would commend the doctor to keep the patients under observation for them to
make a statement to the police at 9.30 p.m. Though the doctor, examined as PW7, speaks of issuance of the wound certificate, there is nothing to indicate that PWs.1 to 3 were examined immediately after Anoop and the time stated Crl.A.(V) No.46 of 2017 - 18 - i.e., 6.10 p.m. and 7.30 p.m does not inspire confidence. Pertinent is also the fact that, PWs.1 to 3 are said to have been brought to the hospital by one Babu as recorded in Exts.P4 to P6 wound certificates. The said Babu has not been examined and PWs.1 to 3 does not speak about such a person.
13. Coupled with this is the fact that but for the
wound certificates issued, there is no evidence of admission in the hospital, which, even according to PW7, doctor, would be with an In-Patient number and further evidenced by the
discharge made on a specified time and date. The above circumstances warrant reasonable suspicion that PWs.1 to 3 are planted witnesses who were also Hindu Aikyavedi workers. PW4 is another person with the very same affiliation. The arrest memo of A2, marked as Ext.C1, is on the 17 th, while PW4 was examined on the 18th. PW4 is also a witness who cannot be believed. PW5 is a police officer who deposed in tandem with PWs.1 to 3, but failed to identify the person who threw the stone at the deceased. PW34 is the Assistant Sub Inspector who recorded the FIS and registered the FIR. The defence relied on Ext.D26, the General Diary (GD) of the concerned police station, to rubbish the evidence of PWs.5 and 24. The
G.D records the movement of the officers. The G.D entry Crl.A.(V) No.46 of 2017 - 19 - indicates it was at 21.15 hours that PW24 was deputed to the
Kuttiadi Government Hospital to record the statement. At 21.30 hours, Ext.P1 FIS has been recorded and at 22.00 hours, PW24 is seen to have returned to the police station, since against 22.00 hours the officer having G.D duty has proceeded to the MCH handing over charge to PW24. Very unlikely that PW24 could have completed the task of recording statement and returned within half an hour. There is absolutely no mention of PW5 having been assigned duty at the scene of occurrence.
14. 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”, Crl.A.(V) No.46 of 2017 - 20 -
“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.
15. In the present appeal by the victim, it has to
be pertinently noticed that the eye witnesses' testimony is that about 15 persons were injured in the attack, alleged to have been carried out with stones and bombs. None, other than PWs.1 to 3 are injured and even the said witnesses, as we noticed, did not have any visible injury. When two bomb blasts and stone pelting from all around were said to have occurred, there definitely would have been more persons injured, grievously, in the incident. Potassium Chloride was detected in the sample collected from the scene of Crl.A.(V) No.46 of 2017 - 21 - occurrence, but the scene plan or the injuries on the persons do not commend us to find an incident having taken place as narrated by PWs.1 to 3 and 4. The conspiracy element is also not established. We do not find any reason to upset the findings of the Trial Court. We are unable to find any
conclusion other than that arrived at by the Trial Court,
which is eminently reasonable and perfectly valid from the evidence led by the prosecution, especially when the eye witnesses' testimonies are disbelieved. The appeal would stand dismissed. Sd/- K.Vinod Chandran Judge Sd/- C.Jayachandran Judge vku/-