Kerala High Court
Sunil Kumar @ Luttapi vs State Of Kerala on 18 December, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934
CRL.A.No. 74 of 2007 (D)
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SC.171/2005 of IIIrd ADDITIONAL SESSIONS JUDGE (ADHOC) FAST TRACK COURT No.I,
THRISSUR
APPELLANTS/ACCUSED 1 AND 2:
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1. SUNIL KUMAR @ LUTTAPI,
S/O. ARAVINDKSHAN, CHERKARAVEETTIL,
MANAKODYKUNNU DESOM, MANAKODY VILLAGE, THRISSUR DT.
2. AMBADY @ PRASAD, S/O. PUSHKARAN,
VALATHPARAMBIL HOUSE, MANAKODY DESOM,
MANAKODY VILLAGE, THRISSUR DT.
BY ADV. SRI.O.V.MANIPRASAD
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
(SUB INSPECTOR OF POLICE, ANTHIKKAD, THRISSUR)
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No.74 of 2007
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Dated this the 18th day of December, 2012
JUDGMENT
The appellants are accused Nos.1 and 2 in S.C.No.171 of 2005 of the court of the 3rd Additional Sessions Judge (Ad hoc) Fast Track Court No.1, Thrissur. In this appeal the challenge is against the conviction and sentence imposed on the appellants under Sections 324 and 326 of I.P.C. by the judgment dated 11/12/2006 in the above Sessions Case.
2. The prosecution case is that, the accused persons five in numbers formed themselves into an unlawful assembly, with the common object to commit culpable homicide of PWs.4 and 6 not amounting to murder, and the accused persons among whom accused Nos.1 and 2 being armed with deadly weapons, like, iron pipes using force or violence reached the road lying in front of the house of PWs.4 and 6 situated at Manakkodi Crl.A.No.74/2007 : 2 : desom at about 2 p.m. on 28/03/2004 and the first accused inflicted blows on PW.4 with an iron pipe causing injuries to the left hand, left finger and the left leg including the fracture of 5th metacarpal left hand and the second accused gave blows on PW.6 with the iron pipe causing injuries to the left leg, right little and ring fingers, and head including fracture of the tip of proximal phalanx of right little finger and fracture of left tibia and fibula. According to the prosecution all the accused persons slapped and punched PWs.4 and 6 on different parts of their bodies and thus the accused persons caused grievous hurt likely to cause the death of PWs.4 and 6. Hence, the accused persons have committed the offences punishable under Sections 143, 147, 148, 323, 324, 326 and 308 read with Section 149 of the I.P.C. and based upon such allegation Crime No.135 of 2004 was registered in the Anthikkad Police Station.
3. On completing the investigation of the above crime, a report was filed in the Judicial First Class Magistrate Court-II, Thrissur based upon which C.P.No.55 Crl.A.No.74/2007 : 3 : of 2004 was instituted and the learned Magistrate by his order dated 11/01/2005 in the above committal proceedings, committed the case to the Sessions Court where S.C.No.171 of 2005 was instituted from where the case is made over to the present trial court for disposal. Thus, when the accused appeared, after having heard the prosecution as well as the defence, the learned Judge of the trial court framed a charge for the offences punishable under Sections 143, 147, 148, 323 and 308 read with Section 149 of I.P.C. against all the accused persons and also under Sections 324 and 306 of I.P.C. against the accused persons 1 and 2. When the said charge was read over and explained to the accused, they pleaded not guilty consequent to which the prosecution adduced its evidence consists of the deposition of PWs.1 to 7 and Exts.P1 to P9 documents. MOs.1 and 2 iron pipes were identified and marked as the material objects. Though no defence exhibit is marked, DW.1 was examined as defence witness.
Crl.A.No.74/2007 : 4 :
4. On completing the trial, the learned Judge has found that the prosecution has succeeded to establish beyond reasonable doubt that the accused persons 1 and 2 have committed the offence punishable under Sections 324 and 326 of the I.P.C. and accordingly they are convicted thereunder. All the accused, including these appellants, are found not guilty of the offences punishable under Sections 143, 147, 148, 323 and 308 read with Section 149 of the I.P.C. and consequently they are acquitted for the said offences under Section 235(1) of Cr.P.C.
5. On conviction of the present appellants for the offence under Sections 324 and 326 of I.P.C. they have been sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of `5,000/- each, and in default of payment of fine they are directed to undergo simple imprisonment for two months each under Section 324 of I.P.C. They are also sentenced to undergo rigorous imprisonment for three years each and to pay a fine of `7,500/- each, and in default of payment of fine they are also Crl.A.No.74/2007 : 5 : directed to undergo simple imprisonment for three months each under Section 326 of the I.P.C. It is also ordered that 75% of the fine recovered from the first accused shall be paid to PW.4 and 75% of the fine recovered from the second accused shall be paid to PW.6. Set off is allowed. Substantial sentences are ordered to run concurrently. It is the above finding and order of conviction and sentence imposed against the appellants are challenged in this appeal.
6. I have heard Sri.O.V.Maniprasad, learned counsel for the appellants and Smt.S.Hyma, learned Public Prosecutor for the State.
7. In order to buttress the allegation against the accused, the prosecution mainly depends upon the evidence of Pws.4, 6 and 7, which I will consider later.
8. The other witnesses examined by the prosecution are Pws.1, 2, 3 and 5, among which PW.1 is the doctor then working as C.M.O. at West Fort hospital, Thrissur at the relevant point of time and when he was examined, he had Crl.A.No.74/2007 : 6 : deposed that, on 28/03/2004 he had examined PWs.4 and 6 at about 2.30 p.m. and issued Ext.P1 and P2 wound certificates respectively of PW.4 and PW.6. According to him, when he issued the wound certificate, he had noted the injuries found on the body of PWs.4 and 6. According to PW.1, he had noted the following injuries on the body of PW.4 namely, (1) contusion left hand and left little finger and left leg. (2) Abrasion right knee, and (3) fracture 5th metacarpal left hand. He had also deposed about the injuries noted on PW.6. They are: (1) contusion left leg upper 3rd and right little finger. (2) lacerated wound frontal scalp 5 x 2 x 1 cms and right ring finger 1.5 x 0.5 x 0.25 cms. (3) fracture left tibia and fibula, and (4) fracture tip of proximal phalanx right little finger.
9. PW.2 is the then S.I. of Police attached to Anthikkad Police Station. According to him, the accused volunteered to appear before him with the iron pipe alleged to have used for attacking the prosecution witnesses and as per his evidence he had seized those pipes as per Ext.P3 Crl.A.No.74/2007 : 7 : mahazar and PW.2 has identified MOs.1 and 2 iron pipes. According to PW.2, he had undertaken part of the investigation during which he had got prepared Ext.P4 scene plan. It is the further evidence of PW.2 that, during his investigation he had ascertained the correct address of the accused and accordingly he preferred Ext.P5 report to that effect. PW.3 is the Head Constable attached to Anthikkad Police Station, who in pursuance to the intimation received from the hospital, reached there and recorded the F.I. Statement allegedly given by PW.4 and the same is marked as Ext.P6 through PW.3. PW.5 is also another S.I. of Pollice attached to Anthikkad Police Station who recorded Ext.P7 F.I.R. on the basis of Ext.P6 statement recorded by PW.3. PW.5 has also participated in the investigation and it was PW.5 who prepared Ext.P8 scene mahazar. During the examination of Ext.P5, particularly in his cross-examination, PW.5 has deposed that he had also registered Crime No.136 of 2004 in the very same Police Station.
Crl.A.No.74/2007 : 8 :
10. The other three witnesses examined by the prosecution are PWs.4, 6 and 7 among whom PWs.4 and 6 are the injured. When PWs.4 and 6 were examined, they have deposed in terms of the prosecution allegation. PWs.4 and 5 are brothers. According to them, their house is situated at Manakkodi and they are unanimous in their depositions that the incident in which they sustained injury took place on the road lying in front of their house at about 2 p.m. on 28/03/2004. According to PWs.4 and 6, the accused persons 2 and 5 came to the place of occurrence and they called PW.6 who was sitting on the veranda of his house and the other accused arrived on the place of occurrence. According to PWs.4 and 6, when PW.6 came to the place of occurrence, the first accused pushed him down and the second accused delivered a blow aiming at the head of PW.6 with an iron pipe. According to PW.6 he had prevented that blow with his hand, thus he sustained injuries on his hand and head. According to these witnesses, when PW.6 fell down, PW.4 came to the place of occurrence Crl.A.No.74/2007 : 9 : running from his house and tried to rescue PW.6 and at that time the first accused gave blow on the head of PW.4 with an iron pipe and PW.4 warded off that blow with his left hand, as a result of which his hand fractured and he fell on the ground. It is the further case of these witnesses that when PW.6 tried to stand up, the second accused again gave a blow on his left leg with the iron pipe and therefore he fell again. It is also the case of these witnesses that when PW.4 tried to stand up, A1 again gave blow on the left leg with the iron pipe. According to these witnesses, all the accused persons were involved in the attack of PWs.4 and 6 and finally PWs.4 and 6 were taken to West Fort Hospital, Thrissur where they were admitted. According to PWs.4 and 6, the accused persons attacked with MOs.1 and 2 and they have identified these material objects. PW.4 has also deposed that he gave Ext.P6 F.I. Statement to the police. According to PWs.4 and 6, they were attacked by the accused due to the previous enmity connected with the conduct of pooram.
Crl.A.No.74/2007 : 10 :
11. PW.7 is another witness examined by the prosecution to prove the incident and PW.7 is none other than the first cousin of PWs.4 and 6. When PW.7 was examined, he had deposed that he has got acquaintance with the accused and he saw the incident in which PWs.4 and 6 sustained injuries and the incident has taken place at about 2 p.m. on 28/03/2004 in front of the house of PWs.4 and 6. When PW.7 was examined, he had also given an account in terms of the deposition of PWs.4 and 6 with respect to the incident. These are the evidences and materials referred to by the learned Judge in support of his finding and to convict the appellants.
12. Sri.O.V.Maniprasad, the learned counsel for the appellants strenuously submitted that even as per the admitted case of the prosecution, there was a counter case connected with the present case. But the learned Judge, though he came to know about these two cases, has not taken any step to try these cases together and thus the learned Judge is tried the present case by adopting an Crl.A.No.74/2007 : 11 : illegal and arbitrary approach and thus the same created grave prejudice to the accused. It is also the submission of the learned counsel that, because of the illegal and arbitrary approach of the court below in the conduct of the case, the defence could not succeeded in adducing its evidence to prove its defence. According to the learned counsel, the prosecution has suppressed material facts and evidence regarding the entire incident and no convincing explanation is offered by the prosecution about the injuries sustained by the accused. It is also the submission of the learned counsel that the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt especially when no independent evidence is adduced by the prosecution. According to the learned counsel, the absence of independent evidence was not properly considered and appreciated by the learned Judge of the trial court especially when the prosecution has chosen to examine only the injured and the relative who are enimical to the accused. It is also pointed out by the learned counsel for Crl.A.No.74/2007 : 12 : the appellant that to the utter surprise of the defence and deviating from the normal conduct of the trial, the investigating officer was examined before the examination of the injured witness as well as the other occurrence witness which approach resulted in prejudice to the accused. Further submission of the learned counsel is that, though the learned Judge of the trial court and the prosecution were fully aware about the counter case connected with the present case, the trial court miserably failed to follow the dictum laid down by the Hon'ble Apex Court in Sudhir and others Vs. State of M.P. (2001) 2 SCC page 688. Thus, according to the learned counsel the appellants are entitled to get a free acquittal, as prosecution has miserably failed to prove its case beyond reasonable doubt.
13. On the other hand, Smt.S.Hyma, learned Public Prosecutor for the State submitted that, the injured immediately after incident got admitted in the hospital and examined by PW.1 who issued Exts.P1 and P2 wound Crl.A.No.74/2007 : 13 : certificates, which contemporary documents proved the injuries received by PWs.4 and 6 caused by the accused. The learned Public Prosecutor submits that the medical evidence consists of the testimony of PW.1 and Exts.P1 and P2 wound certificates prove that PWs.4 and 6 are sustained grievous injuries. It is also the submission of the learned Public Prosecutor that, on the date of incident itself Ext.P7 F.I.R. was registered on the basis of Ext.P6 F.I. Statement given by PW.4 and the police undertook the investigation and finally laid the charge. According to the learned Public Prosecutor, though the injured as well as the other witnesses subjected to severe cross-examination, nothing brought on record to disbelieve their evidence and therefore the trial court has correctly found that the appellants are guilty under Sections 324 and 326 of I.P.C. Therefore, according to the learned Public Prosecutor, no interference is warranted either with the findings of the court below or the sentence imposed on the appellants.
14. I have carefully considered the arguments Crl.A.No.74/2007 : 14 : advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have gone through the judgment of the trial court carefully and scrutinized the evidence and materials on record.
15. In the light of the rival contentions advanced by the learned counsel for the appellants and the learned Public Prosecutor and in the light of the evidence and materials on record, the question to be considered is whether the accused/appellants have been prejudiced for not trying the counter case in which PWs.4 and 6 are accused connected with the same incident and further whether the prosecution has succeeded in proving its allegation against the appellants beyond reasonable doubt and whether the trial court is justified in convicting the appellants for the offences punishable under Sections 324 and 326 of I.P.C.
16. The specific case of the prosecution is that, at about 2 p.m. on 28/03/2004 the accused/appellants attacked PWs.4 and 6, in a public road lying in front of the house of Crl.A.No.74/2007 : 15 : PWs.4 and 6 due to previous enmity connected with the conduct of pooram, inflicted grievous injuries on PWs.4 and
6. While denying the prosecution allegation the case of the defence is that on the same day the accused/appellants were attacked by PWs.4 and 6 and they sustained injuries on the same date and time and consequently Crime No.136 of 2004 was registered in the very same Police Station against PWs.4 and 6 and CW.5 namely, one Rejeesh. In this juncture, it is relevant to note that, when the first witness for the prosecution was examined, namely, PW.1-the Doctor, especially during the cross-examination, the accused got an admission from PW.1 that the injuries noted on PWs.4 and 6 could be produced while mutual attack. During the examination of PWs.4 and 6 particularly from the trend of the cross-examination on behalf of the defence, it is revealed that the defence has got a case that PWs.4 and 6 sustained injuries in an incident connected with a scuffle taken place on questioning the damage caused to the car of the 4th accused by the above witnesses. When PW.5 was Crl.A.No.74/2007 : 16 : examined, who prepared Ext.P7 F.I.R. on the basis of Ext.P6 F.I. Statement of PW.4, he had admitted during the cross- examination that "
" CW.1 & 2 Crime
No.136/2004 ."
CWs.1 and 2 mentioned above are none other than PWs.4 and 6 in this case. Thus it can be seen that, immediately after registering crime against the accused herein the next crime registered in the same police station, is against PWs.4 and 6.
17. It is pertinent to note that, during the cross- examination of PW.4 the de facto complainant who is the charge witness No.1, the learned Judge of the trial court has recorded as follows:-
"Further examination is adjourned on the request of the defence counsel saying that a case assailing out of same transaction is pending in Magistrate Court and that the said case is to be committed to the Sessions Court."
Thus, in this juncture, it is relevant to note that PW.4 for the Crl.A.No.74/2007 : 17 : first time examined on 02/07/2006 on which date itself the cross-examination was started during which making the above observation and endorsement, examination of the above witness was deferred. But before that, when PW.5 was examined on 04/02/2006 the defence got admission from PW.5 that against CWs.1 and 2 namely, PWs.4 and 6, Crime No.136 of 2004 was registered. Thus it is crystal clear that, at least from the stage of examination of prosecution witnesses more particularly from the stage of examination of PW.5, PW.4, etc. the learned Judge of the trial court was fully aware that connected with the same incident a counter case was pending in the Magistrate court and the said case is likely to be committed to the Sessions Court. Even otherwise, at the time of perusal and scanning of the prosecution materials before framing the charge, if the same was done properly and meticulously, the said fact could have been taken note by the learned Judge of the trial court. This fact was also within the knowledge of the prosecution who launched prosecution against the accused Crl.A.No.74/2007 : 18 : in the present case. It is strange enough to note that in the `B' diary proceedings of the court below by endorsement dated 29/06/2006 it is seen recorded as "all accused present" and it is further, though recorded to the effect that copies of wound certificate produced and charge sheet produced by defence. Call on 30/06/2006, but the same seen scored off. The next posting date i.e., on 30/06/2006. It is recorded as "all accused present. For defence evidence adjourned to 06/07/2006. Again on 06/07/2006 it is seen recorded that "all accused present to defence evidence adjourned to 20/07/2006. Again, it appears that on 20/07/2006, DW.1 was examined in part and for further examination of DW.1 adjourned to 09/08/2006 and thereafter from 09/08/2006 to 16/09/2006 and again posted on 26/09/2006 on which date the case was adjourned for further examination of DW.1 and finally the examination of DW.1 was completed on 30/09/2006. Though the lower court files are verified, no petition is seen filed by the defence to produce any document from their side, but it is Crl.A.No.74/2007 : 19 : seen recorded in the proceeding sheet of the court below that on 29/06/2006 the accused has produced wound certificate and the charge sheet, but it seems scored off.
19. Thus on a careful examination of the above facts with the support of the available materials and evidence, it can be safely presumed that a counter case was pending against PWs.4 and 6 connected with the same incident, which alleged against the appellants/accused in the present case. According to the defence, the accused in the present case sustained injuries in the said incident and the prosecution has suppressed the material facts about the case and counter case. In the light of the above referred materials and evidences, I am of the view that the above plea of the defence cannot be ruled out, even though they failed to substantiate such plead with the support of evidence. But from the prosecution materials and evidence and other facts and material referred to above the defence has succeeded in probabilising those facts. In the decision cited by the learned counsel for the appellant, particularly Crl.A.No.74/2007 : 20 : in paragraphs 8, 9 and 10 of the decision reported in Sudhir and others Vs. State of M.P. (2001)2SCC 688 it is held:
8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter-case" by some High Courts and "cross-cases" by some other High Courts. Way back in the nineteen hundred and twenties a Division Bench of the Madras High Court (Waller and Cornish, JJ.) made a suggestion (Goriparthi Krishtamma, In re that "a case and counter-case arising out of the same affair should always, if practicable, be tried by the same court; and each party would represent themselves as having been the innocent victims of the aggression of the other."
9. Close to its heels Jackson, J., made an exhortation to the then legislature to provide a mechanism as a statutory provision for trial of both cases by the same court (vide Krishna Pannadi v. Emperor). The learned Judge said thus:
"There is no clear law as regards the procedure in counter-cases, a defect which the legislature ought to remedy. It is a generally recognized rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished."
10. We are unable to understand why the Crl.A.No.74/2007 : 21 : legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross- cases shall be tried by the same court, can be summarised thus: (1) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality the case and the counter-case are, to all intents and purposes, different or conflicting versions of one incident."
20. In the light of the above dictum, according to me, it was incumbent upon the Judge of the trial court to follow the procedure laid down in the above decision and to try the present case along with the counter case in which PWs.4 and 6 are accused and the appellants/accused herein claimed to have sustained injuries. A Division Bench of this Court in the decision in Santhosh Kumar v. State of Kerala 1986 KLT SN 23 (C.No.41) has held:
"Investigating officers are expected to be fair towards the accused also. Their object should only be vindication of justice and not to obtain conviction at any cost. If the evidence collected during investigation shows the possibility of a plea of private defence the investigating officer is not entitled to suppress the materials supporting such a Crl.A.No.74/2007 : 22 : plea. That will cut at the root of fair investigation. The duty of the investigating agency is to collect all available materials in relation to the commission of the crime and the attendant circumstances and place them before court without adding water, whether those materials are favourable or unfavourable to the prosecution or the defence. The object of investigation is only to find out the truth. Materials are placed before court also for the same purpose."
In the matter of criminal administration of justice the trial court with which such tasks are entrusted, are expected to conduct the trial fairly and the ultimate aim must be dispensation of justice to all and the same shall not be on the basis of the version of prosecution allegation alone placed before it. The prosecution has also got a duty to place the entire facts and materials before the court so as to enable the court to come into a correct and just decision. According to me, in the present case both the trial court as well as the prosecution miserably failed to discharge the above duties which resulted in miscarriage of justice and the accused are prejudiced.
Crl.A.No.74/2007 : 23 :
21. As the next two questions are interlinked, the same must be considered together so as to avoid repetition. It is relevant to note that PWs.4 and 6 are the injured in the present case and according to them, one of the reasons for the assault on them was due to the prior enmity connected with the conduct of pooram in their locality. But at the same time, though PW.4 himself admitted that he is BJP worker, he expressed his ignorance about the political allegation of accused towards CPM. But PW.6 in an unequivocal language deposed before the court that he is a BJP worker and the accused are CPM workers. By the foregone discussion, I have already found that from the admitted facts and evidence of the prosecution, connected with the present case there was a counter case in which PWs.4 and 6 are accused and in that case the accused herein sustained injuries. Under the above facts and circumstances, according to me, prudence required cautious and close scrutiny of the evidence of prosecution witnesses who are enmical to the accused both due to Crl.A.No.74/2007 : 24 : political rivalry as well as faction fight in the conduct of pooram festival. Thus, on examination of the entire prosecution case it can be seen that the prosecution has chosen to examine only PWs.4 and 6 and their cousin namely PW.7 to substantiate its case and no independent witness is examined. Thus, on a scrutiny the evidence of PW.4, it can be seen that, even according to PW.4 the first stage of the incident under which PW.6 sustained injury is over before his arrival. So in the evidence of PW.4 regarding the origin of the incident there is no whisper. PW.4 has also no case as to how they reached in the hospital from where he gave Ext.P6 F.I. Statement. In this juncture, it is also relevant to note that the first document came into existence connected with the prosecution case is that of Exts.P1 and P2 wound certificates respectively with respect to PWs.4 and 6. But neither in Ext.P1 nor in Ext.P2, the names of the assailants are mentioned. Even according to PWs.4 and 6, the accused are their neighbours and they have got long acquaintance connected with the conduct of pooram. But Crl.A.No.74/2007 : 25 : neither PW.4 nor PW.6 mentioned the names of any of the assailants to PW.1. Thus, the first opportunity for PW.4 or for PW.6 to pinpoint their assailants was at the time of giving the intimation to the Doctor with respect to the cause of the injuries but both of them failed to give the name of any of the accused, though they have claimed long standing acquaintance with the accused. It is true when PW.4 gave Ext.P6 F.I. statement, the names of the accused are mentioned. But Ext.P6 is seen to have recorded at 3 p.m. on 28/03/2004. According to me, when PWs.4 and 6 failed to mention the names of the accused to PW.1-the doctor, no sanctity can be given in mentioning the name of the accused in Ext.P6 F.I. Statement when PWs.4 and 6 are enimical to the accused for various reasons mentioned above. Thus on a close scrutiny of evidence of PW.4, according to me, the same cannot be relied safely. Same is the position with respect to the evidence of PW.6. As rightly pointed out by the learned counsel for the appellants regarding the overt act of A1 and A2 there is no consistency in the evidence of Crl.A.No.74/2007 : 26 : PWs.4 and 6. When PW.4 makes overt act against A1 and A2 and deposed that A1 gave blow, PW.6 says that A1 pushed him down. So, regarding the incident and the overt act against the appellants, the evidence of PWs.4 and 6 are in conflict.
22. Further it is relevant to note that apart from PWs.4 and 6-the injured, the sole witness examined by the prosecution to prove the occurrence is PW.7 who is none other than the father's brother's son of PWs.4 and 6. It is true when PW.7 was examined, he had deposed in terms of the deposition of PWs.4 and 6. In this juncture, it is relevant to note that neither PW.4 nor PW.6 has got a case to the effect that the incident under which they claimed to have sustained injuries are witnessed by PW.7. According to PW.4, when he sustained injuries his mother came to the spot, but PW.4 has not mentioned about PW.7. So also PW.6 has not mentioned about the presence of PW.7 at the place of occurrence. Therefore the claim of PW.7 who is a close relative or PW.4 and PW.6 and interested witness, that he Crl.A.No.74/2007 : 27 : had witnessed the incident cannot be swallowed without a pinch of salt. A Division Bench of this Court in the decision in Chandrasekharan Adithiripad Vs. State of Kerala 1987 Crl.L.J.1715 particularly in paragraph '8' has held:
"If the court feels genuine doubt regarding the correctness of the prosecution evidence in relation to the incident, benefit of that doubt also could be relied on by the accused in the plea of his private defence. If the court feels that the prosecution has not placed the entire materials as to how the incident took place, that lacuna on the part of the prosecution could very well be taken advantage of by the accused in order to contend that if the entire materials were placed before court his plea of private defence, would have been substantiated by the same."
In the very same decision it is further held in paragraph 20 that:
"When the court feels a genuine doubt that the true picture of the incident is not presented before it without hiding anything, the benefit of that doubt is available to the accused not only in relation to the offence, but in relation to the plea of private defence or other exceptions also. Even when there is no defence evidence but from the prosecution evidence itself there is a probability of the accused having acted in self-defence or at least there Crl.A.No.74/2007 : 28 : is basis for a reasonable suspicion in that direction, that is sufficient to entitle the accused to an acquittal."
Thus, on a close scrutiny of the prosecution evidence it can be seen that to prove the incident under which PWs.4 and 6 sustained injuries there is no cogent and satisfactory evidence and the absence of such evidence assumed importance in the backdrop of the defence taken by the accused which I mentioned earlier and therefore, according to me, it is not safe to convict the appellants based upon the interested version of PWs.4, 6 and 7 in the absence of any independent evidence.
23. In the light of the above facts, circumstances and the discussions, I am of the view that because of the arbitrary and illegal approach adopted by the court below in not conducting the case and counter case in the light of the decision reported in Sudhir and others Vs. State of M.P. 2001(2) SCC 688 the accused/appellants are highly prejudiced which resulted in miscarriage of justice and the evidence and materials on record are not sufficient to prove Crl.A.No.74/2007 : 29 : the allegation against the accused beyond reasonable doubt and therefore the appellants are entitled to get benefit of doubt which was not extended by the trial court in favour of them. Therefore, I am unable to approve the conviction recorded by the trial court against the accused consequently the conviction and sentence imposed on the appellants for the offence under Sections 324 and 326 of I.P.C. are set aside.
In the result, this appeal is allowed setting aside the judgment dated 11/12/2006 in S.C.No.171 of 2005 of the court of the 3rd Additional Sessions Judge (Ad hoc) Fast Track No.I, Thrissur and the appellants/accused are acquitted of all the charges leveled against them and the bail bond, if any, executed by them stand cancelled and they are set at liberty.
V.K.MOHANAN, JUDGE skj