Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942 CRL.A.No.196 OF 2005(D) [AGAINST THE JUDGMENT DATED 19.12.2000 IN SESSIONS CASE NO.222 OF 1999 ON THE FILE OF THE ADDITIONAL ASSISTANT SESSIONS JUDGE, ALAPPUZHA] APPELLANT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SRI. K.B.UDAYAKUMAR, SR.PP RESPONDENTS/ACCUSED:
1 SYMBOCHAN S/O.BENEDICT,KURISHINKAL VEEDU, WARD NO.13, MARARIKULAM THEKKU PANCHAYAT, PATHIRAPPALLY VILLAGE. 2 PRITTY, S/O. ANPILLAI, KURISHINKAL VEEDU, WARD NO.13, MARARIKULAM, THEKKU PANCHAYAT, PATHIRAPPALLY VILLAGE. 3 DENNIS S/O. BANAVANTHUR, THEKKEPALACKAL VEEDU, WARD 12, MARARIKULAM THEKKU PANCHAYAT. 4 CYRIL S/O. DOMINIC @ KUNJU PILLAI, KURISHINKAL VEEDU, WARD- 13, MARARIKULAM THEKKU, PANCHAYAT. R1 BY ADV. SRI.S.SANAL KUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2020
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No.196 OF 2005 2
J U D G M E N T
Dated this the 30th day of October 2020 ..
The State of Kerala challenges the judgment
dated 19.12.2000 in Sessions Case No.222 of 1999 on the file of the Additional Assistant Sessions Judge, Alappuzha by which the trial court acquitted the accused in that case.
2. The Circle Inspector of Police, Alappuzha North Police Station charge sheeted the accused under Sections 323, 324 and 307 r/w. Section 34 of the Indian Penal Code.
3. The prosecution case in brief is that, on
7.7.1996 at about 8.30 p.m., the accused who had enmity towards CW2 for having questioned them about noisy quarrel that took place between the accused and nephew of CW2 at about 11 p.m. on 5.7.1996, in front of the house of CW2’s nephew Prakasan when his son was suffering from fever. Due to this animosity, CRL.A.No.196 OF 2005(D) 3 accused Nos.1 to 4 with their common intention to murder CW2 and armed with deadly weapons like knife, fencing stake and stick attacked CW1 and CW3 in front of the house bearing the name Lekshmi Nivas, Velikkakathu veedu in Ward No.XIII of Mararikulam Panchayat situated on the western side
of the Alappuzha-Arthunkal road. It is further alleged that, the 1st accused questioned CW2 and then the 2nd accused shouted that he should be killed. Then the 1st accused took a knife from his waist and stabbed on the left side of the stomach of CW2. CW1 resisted the 1st accused from stabbing further. At that time, the 2nd accused beaten CW1 with a stick and caused hurt on his right elbow and thereafter the 1st accused stabbed thrice on
the right side of the stomach of CW2. It is alleged that, accused Nos.3 and 4 fisted on the back side of CW1. The intestine of CW2 was protruded out due to the injury inflicted on his stomach by the 1st accused. Hence, it is alleged CRL.A.No.196 OF 2005(D) 4 that, the accused committed the offence under Sections 323, 324 and 307 r/w. Section 34 IPC.
4. To substantiate the case, the prosecution
examined PW1 to PW16. Exhibits P1 to P12 are the documents marked on the side of the prosecution. Exhibits D1 to D3 are the documents marked on the defence side. Exhibits X1 and X1(a) are the court exhibits. MO1 and MO2 are the material objects.
5. After going through the evidence and
documents, the trial court found that the accused are not guilty under Sections 323, 324, 307 r/w. Section 34 IPC. Accordingly, the accused were acquitted under Section 235(1)Cr.PC.
6. Heard the learned public prosecutor and the learned counsel for the respondent.
7. This is an appeal against acquittal. It is
now well settled that if an accused is acquitted by a court of law, the presumption of innocence is strengthened. The Apex Court considered this point in several judgments. The Apex Court observed like CRL.A.No.196 OF 2005(D) 5
that in Sampat Babso Kale and Anr. State of Maharashtra [AIR 2019 SC 1852]. The relevant paragraph of the said judgment is extracted
hereunder:
“Para:7 With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa and Ors. v. State of Karnataka, laid down the following principles. “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, reappreciate 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, CRL.A.No.196 OF 2005(D) 6
“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 emphasis 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”. Similarly, the Apex Court in Chandrappa and Others v. State of Karnataka [(2007) 4 SCC 415] which is CRL.A.No.196 OF 2005(D) 7 relied in the above judgment considered this point in detail. The relevant paragraphs of the said
judgment are extracted hereunder:
“40. In Ramanand Yadav v. Prabhu Nath Jha this Court observed: (SCC pp.614-15, para 21) “21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.
41. Recently, in Kallu v. State of M.P. this CRL.A.No.196 OF 2005(D) 8
Court stated : (SCC pp.317-18, para 8) “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court” (emphasis supplied).”
8. Bearing in mind the above principle laid down by the Apex court, I am considering this appeal against acquittal. Altogether 16 witnesses were examined in this case. PW1 to PW3 are the
injured witnesses in this case. PW4 is an independent witness. PW5 is the doctor through CRL.A.No.196 OF 2005(D) 9
whom exhibits P2 and P3 wound certificates of the injured were marked. PW6 is another doctor who was a member of the surgery team. He conducted the
surgery on PW2. PW7 examined PW1. PW8 is the witness to exhibit P4 mahazar. PW9 is the wife of PW2 who identified the cloths of accused which is marked as MO1 and MO2. PW10 identified the cloths of PW2. PW11 is the Village Officer through whom exhibit P6 is marked. PW12 is the Sub Inspector of Police, who registered F.I.R. PWs.13 and 14 are the investigating officers. PW16 is the ENT doctor
through whom exhibits P11 and P12 wound certificates were marked.
9. The trial court after appreciating the
entire evidence came to the definite conclusion
that, the evidence of PW4 cannot be believed at all. The trial court found that his evidence cannot be believed because of some inherent weakness in his evidence. Similarly, the evidence of PW1 to PW3 were also rejected by the trial CRL.A.No.196 OF 2005(D) 10 court by narrating their evidence in detail. The trial court considered each and every piece of evidence adduced by these injured witnesses and observed that their evidences cannot be believed
at all. The trial court came to the conclusion
that there is deliberate suppression of material
facts relating to the occurrence. The trial court
found that the entire prosecution case is not reliable and believable. Therefore, the trial court came to the conclusion that PW1 to PW3 have not stated the true version of the occurrence.
Accordingly the trial court came to the conclusion
that the prosecution failed to establish that the 1st accused voluntarily caused hurt to PW2 and PW3 by means of dangerous weapon, that 2 nd accused voluntarily caused hurt to PW1 by means of dangerous weapon, that accused No.1 to 4 had done any act with the intention to cause the death of PW2 and that they have done any criminal act in furtherance of their common intention as alleged. CRL.A.No.196 OF 2005(D) 11
10. The trial court appreciated the evidence
after considering the demeanour of the witness. As I stated earlier, the trial court appreciated each and every piece of evidence adduced by PW1 to PW4 and thereafter came to the conclusion that the prosecution miserably failed to prove the offence. The trial court also found that the injury on the accused is also not explained by the prosecution. According to the trial court, the accused No.1 met
the very same doctor who had examined PW1 and PW2 at about 2.55 am on 8.7.1996. Therefore, the non- explanation of the injury sustained to the accused in this case strengthen the suspicious circumstances brought out in the evidence on the
side of the prosecution. Therefore, the trial
court found that the evidence adduced by the
prosecution is unrealiable.
11. While sitting in an appeal against
acquittal, this Court cannot re-appreciate the
evidence like trial court. As I stated earlier,
CRL.A.No.196 OF 2005(D) 12once an accused is acquitted by the trial court, the presumption of innocence is strengthened.
12. Considering the entire oral and documentary evidence in this case, I think there is no reason to interfere with the well considered
judgment of the trial court.
Therefore, this Criminal Appeal is dismissed, confirming the judgment dated 19.12.2000 in S.C.No.222/1999 of the Additional Assistant Sessions Judge, Alappuzha. Sd/- P.V.KUNHIKRISHNAN JUDGE pkk