Kerala High Court
State Of Kerala vs Mathew @ Mathukutty on 9 July, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.2191 OF 2005 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 09TH DAY OF JULY 2020 / 18TH ASHADHA, 1942
CRL.A.No.2191 OF 2005
AGAINST THE JUDGMENT IN CC 82/2003 DATED 10-03-2005 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA
APPELLANT/COMPLAINANT:
STATE OF KERALA,
REP. BY PROSECUTOR, HIGH COURT OF KERALA.
BY SR.PUBLIC PROSECUTOR B.JAYASURYA
RESPONDENT/ACCUSED:
MATHEW @ MATHUKUTTY
S/O.ANTONY,
KYTHAMATTATHIL HOUSE,
MALAPPARAMB, KURUVAMBALAM.
R1 BY ADV. SRI.GILBERT GEORGE CORREYA
R1 BY ADV. SRI.M.P.PRABHANANDAN
R1 BY ADV. SRI.SOJAN MICHEAL
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2191 OF 2005 2
JUDGMENT
Dated this the 9th day of July 2020 This appeal is filed by the State against the acquittal order passed by the Judicial First Class Magistrate Court II, Perinthalmanna in C.C.No.82/2003. The above case is chargesheeted by the Sub Inspector of Police, Kolathur against the respondent alleging offences punishable under Sections 324 and 326 IPC.
2. The prosecution case is that on 25.1.1996 at 7.30 am at Malapparamb in Kuruvambalam Amsom the accused voluntarily caused grievous hurt to charge witness No.1 and 2. It is also the prosecution case that the accused caused hurt to charge witness No.3 by pouring formic acid on their body and they sustained burn injuries and thus committed the offence.
3. To substantiate the case, the prosecution examined PW1 to PW9. Exts.P1 to P11 are marked on the side of the prosecution. Three witnesses were examined on the side of the defence as DW1 to DW3. Ext.D1 to D4 are the exhibits marked on the side of the defence. MO1 to MO5 are the material objects.
CRL.A.No.2191 OF 2005 3
4. After going through the evidence and the documents, the trial court found that the accused is not guilty and he is acquitted under Section 248(i) Cr.P.C. Aggrieved by the acquittal order, this Criminal Appeal is filed by the State.
5. Heard the learned Public Prosecutor and the learned counsel for the respondent.
6. The learned Public Prosecutor submitted that it is a case where the accused inflicted injury by using formic acid. The prosecution has not established the case beyond reasonable doubt. Therefore, the lower court acquitted the accused. The learned counsel for the accused supported the judgment of the trial court. The counsel submitted that the trial court considered all the aspects of the case and acquitted the accused. Hence there is nothing to interfere with the well considered judgment of the trial court.
7. The point for consideration in this case is whether the acquittal order passed by the trial court is correct or not.
8. The trial court considered the entire evidence in detail. The trial court appreciated the ocular evidence along with the medical evidence. The trial court found that the incident as alleged by the prosecution is improbable. The trial court found that the injuries to the accused is not explained CRL.A.No.2191 OF 2005 4 by the prosecution. The trial court also found that PW2 and PW3 who are the alleged eye witness has no case to the police when they were questioned under Section 161 Cr.P.C that they have seen the occurrence. In such situation, the trial court acquitted the accused. The relevant portion of the judgment is extracted hereunder:
"14 It has come out from the cross examination of PW1 that he is a rubber tapper and that the formic acid was kept in his property on the date of the incident. It is the prosecution case that the accused poured formic acid on the body of PWs 1 to 3. It has come out in cross examination that there was a dispute regarding the pathway between PW1 and the accused. PW1 and the accused are brothers. It is seen from the evidence that it is PW1 who had first questioned the accused while the accused was said to be passing through the property of PW1. In cross examination PW1 says that when he questioned, the accused threatened him with danger to life. But the case of threatening by the accused is not seen stated before police by PW1. In chief examination the accused says that PW1 pushed him and when he was about to fall down the accused poured the acid. In cross examination he says that the accused pushed him, he bent down by placing his hands and at that time the accused poured the acid. Subsequently he says that he fell down and at that time the accused poured the acid. So it is not clear as to when the accused poured the acid on PW1. The doctor has reported the chemical burns on the chest also of PW1. If the case of PW1 is taken into consideration there is no possibility of the acid falling on the chest of PW1 and there is possibility of falling the acid only on the back side of PW1. But in this case it is seen that the acid fall on the chest of PW1 also. Moreover it is the case of PW1 that the accused was having in his hands the bucket mug and chopper. The chopper was kept in the armpit and it is his case that the accused poured the acid by using the CRL.A.No.2191 OF 2005 5 mug by taking it from the bucket. The mode in which the accused threw acid is also suspicious. If the accused is having a chopper in his armpit, it will not be possible for him to pour acid as narrated by PW1. PW1 has no case that at the time of throwing of acid chopper was removed by the accused from his armpit. So the evidence of PW1 that the accused throw the acid to him as stated by him it cannot taken on its face value and there is doubt on the evidence of PW1 regarding the pouring of the acid by the accused on him. It is the case of the accused that PW1 his wife and children attempted to attack the accused and at that time the acid fell on the body of PW1 and PW2 and PW1's children had acid on their body as they embraced PW1 at that time. As I have already stated if the case of PW1 is taken into consideration there is no possibility for the acid falling on the chest of PW1 as it has come out from his evidence that he had fallen down towards the ground by bending down and not on his back. So in this case according to me the evidence of PW1 cannot be believed. So far as the evidence of PW2 & 3 is concerned it is also suspicious while they gave statement before police under Section 161 Cr.P.C they have no case that they have witnessed the accused pouring the acid on PW1. This material omission was brought out and proved while PW2, PW3 and the investigating officer were examined. PW2 & 3 are interested witnesses and their exaggeration in evidence has to be seriously taken note of especially when it has come out and proved that the accused also suffered burn injuries. It is the case of PWs 1 to 3 that the accused dipped the mug in the bucket and poured the acid. If that be the case there is possibility of injuries on the hands and fingers of the accused but it is not noted by DWs 1 & 3 while they examined the accused. The evidence of PW3 who is the daughter of PW1 & PW2 is in the same fashion as that of PW2. As the prosecution has not explained as to how the accused sustained injuries which are similar in nature as suffered by PWs 1 to 3, I find that the evidence of PWs 1 to 3 regarding the alleged incident in this case cannot be believed especially when they are interested witnesses. The evidence of PW4 will not improve the prosecution case. So on analysing the evidence of the CRL.A.No.2191 OF 2005 6 prosecution witnesses and also DWs 1 to 3, I find that the prosecution has failed to prove that the accused voluntarily caused hurt to PWs 1 to 3 by pouring acid. Hence these points are found in favour of the accused."
9. After going through the above discussion, I don't think that there is anything to interfere with the well considered judgment of the trial court in an appeal against acquittal. It is a settled position that the jurisdiction of the court to interfere in an appeal against acquittal is limited. In the facts and circumstances of the case, I think there is nothing to interfere with the acquittal order passed by the trial court.
Hence this Criminal Appeal is dismissed, confirming the acquittal order dated 10.3.2005 in C.C.No.82/2003 of the Judicial First Class Magistrate Court II, Perinthalmanna.
Sd/-
P.V.KUNHIKRISHNAN
ab JUDGE