Kerala High Court
Johny vs State Of Kerala on 22 February, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 17TH DAY OF DECEMBER 2013/26TH AGRAHAYANA, 1935
CRL.A.No. 480 of 2003 (C)
--------------------------
AGAINST THE ORDER/JUDGMENT IN SC.299/2002 of ADDL.SESSIONS COURT
(ADHOC)-II, ERNAKULAM DATED 22-02-2003
APPELLANTS : ACCUSED Nos.1, 2 & 3 :
--------------------------------
1. JOHNY, AGED 23 YEARS,
S/O.SEBASTIAN,
VALYATH VEEDU, CHETIPADI,
CHERANELLOOR.
2. SELVAN, AGED 21 YEARS,
S/O.GEORGE,
PARAKKAL VEEDU,
NEAR NADUVILA CHURCH,
CHERANELLOOR.
3. RENJITH, AGED 20 YEARS,
S/O.RAMESH,
MANGALASSERI PARAMBIL VEEDU,
CHERANELLOOR.
BY ADVS.SRI.T.D.ROBIN
SRI.K.S.ANIL
RESPONDENT: COMPLAINANT :
--------------------------
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
(CRIME No.89/2001 OF CHERANELLOOR POLICE STATION)
BY PUBLIC PROSECUTOR SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
--------------------------------------
Crl.A.No.480 of 2003
---------------------------------------
Dated this the 17th day of December, 2013
JUDGMENT
The appellants 3 in numbers, who are respectively accused Nos.1 to 3 in S.C.No.299 of 2002 of the court of the Additional Sessions Judge, (Adhoc-II), Ernakulam, preferred the above appeal since they are aggrieved by the judgment dated 22/02/2003 in the above Sessions Case by which they are convicted and sentenced for the offence under Sections 323, 324 & 341 read with Section 34 of IPC.
2. The allegation against the accused is that on 25/12/2001 at about 8 P.M. they joined together into an unlawful assembly armed with weapons, at a place in the Valase road near Bhagavati temple in Cheranelloor Village with full knowledge that they are members of the unlawful assembly had wrongfully restrained PW.1 and the second accused with a wooden piece had beaten on the neck portion and back of PW.1. It is further alleged in the charge sheet Crl.A.No.480 of 2003 :-2-:
that accused Nos.1 and 3 had incessantly beaten on the body parts of PW.1 and the second accused, by using a sword stick had attempted to commit culpable homicide of PW.1 in the said transaction. The further case of the prosecution is that the sword stick, when placed on the neck of PW.1, by the second accused, he had run for life and accused Nos.5 to 8 had followed him and beaten him on various parts of the body and thus according to the prosecution the accused has committed the offences punishable under Sections 143, 147, 148, 341, 323, 324 & 308 read with Section 149 of IPC. On the above allegation Crime No.89 of 2001 was registered in the Cheranelloor Police Station for the said offences.
3. On completing the investigation, a report was filed in the Judicial First Class Magistrate Court-II, Ernakulam, whereupon C.P.No.19 of 2002 was instituted and the learned Magistrate, by his order in the above proceedings, committed the above case to the Sessions Court, wherein S.C.No.299 of 2002 was instituted. Subsequently the same was made over to Crl.A.No.480 of 2003 :-3-:
the present trial court for disposal. As the 4th accused is a juvenile, the case against him was in the Juvenile Court at Ernakulam. When the accused appeared, after furnishing the prosecution materials to them and on hearing the prosecution as well as the defence, the learned Judge framed a formal charge against the accused who are 8 in numbers for the offences punishable under Sections 143, 148, 341, 323, 324 & 308 read with Section 149 of IPC, which when read over and explained to the accused, they denied the charge and pleaded not guilty. Consequently the trial proceeded further during which PWs.1 to 13 were examined and Exts.P1 to P6 were produced from the side of the prosecution. MO.1, sword stick was identified as material object. No evidence whatsoever adduced from the side of the defence. The learned Judge of the trial court, after having considered the entire evidence and materials on record found that the prosecution has miserably failed to establish that the accused themselves formed into an unlawful assembly with a common object and accordingly the Crl.A.No.480 of 2003 :-4-:
case of the prosecution on this aspect was found as doubtful. But, it is specifically found that the prosecution has succeeded in establishing that accused Nos.1 to 3 had assaulted PW.1 on 25/12/2001 at 8 P.M. However it is finally concluded that it cannot be said that the second accused, by using MO.1 sword stick and a separate wooden stick had intended to kill PW.2 and he cannot be made liable for Section 308 of IPC and the prosecution has only established that A1 to 3 in furtherance of their common intention have unlawfully restrained PW.1 in the Valase road near Bhagavati temple at 8 P.M. on 25/12/2001 and thereafter caused injuries on PW.1 by using MO.1. Accordingly, it is found that accused Nos.1 to 3 are guilty of the offence under Sections 341, 323, 324 read with Section 34 of IPC and accused Nos.5 to 8 are entitled to get benefit of doubt and accordingly they are found not guilty of the offence charged against them. On the basis of the above finding, accused Nos.1 to 3 are convicted for the offence under Section 341, 323, 324 read with Section 34 of IPC, whereas accused Crl.A.No.480 of 2003 :-5-:
Nos.5 to 8 are acquitted. On conviction of A1 to A3, they are sentenced to undergo simple imprisonment for one year each and to pay a fine of `1,000/- each in default of payment of fine to undergo simple imprisonment for one month each for offences under Section 324 read with Section 34 of IPC. They are further sentenced to pay a fine of `500/- each for offences under Section 341 read with Section 34 of IPC in default of payment of fine to undergo simple imprisonment for 15 days each and also sentenced to pay a fine of `1,000/- each for offences under section 323 read with Section 34 of IPC in default of payment of fine to undergo simple imprisonment for one month each. It is the above finding and order of conviction and sentence that are challenged at the instance of accused Nos.1 to 3 in the above Sessions Case in this appeal.
4. Heard Sri.T.D.Robin, the learned counsel for the appellants and Sri.N.Suresh, the learned Public Prosecutor for the State.
Crl.A.No.480 of 2003
:-6-:
5. To prove the incident the prosecution has examined PWs.1 to 5. Among PWs.1 to 5, PW.1 is the injured and PWs.2 to 5 are eye witnesses to the incident. But PW.5 turned hostile towards the prosecution. When PWs.1 to 4 were examined, they have deposed in terms of the prosecution allegation. When PW.1 was examined, he had deposed that, on 25/12/2001 at about 8 P.M., while he was proceeding to see the art program in the Cheranelloor Kunnathu Bhagavati temple with his friends, the accused attacked him in the road near the above Bagavathi temple. According to PW.1, himself and his friends, had seen A8 and A7, standing in the road near the Maraparambu Temple and according to PW.1, PW.4 said 'Happy X'mas' to those accused and PW.1 and his company had also removed the bicycle, which had been placed across the road by the accused and placed the same on the side of the road. It is the further case of PW.1, when himself and his friends were seeing the art program by standing in the road, the first accused namely Johny accompanied by other accused Crl.A.No.480 of 2003 :-7-:
had called him and when PW.1 approached the first accused, the second accused Selvan beat him on his neck with a knuckle breaker and thereafter the second accused again placed a sword stick on the neck of PW.1 and threatened him that he would be killed. According to PW.1 at that point of time he ran away out of fear, but 5 or 6 members of the 'bad boys' gang restrained him and hit him on various parts of the body and the accused persons have subsequently escaped from the scene of occurrence, when the local people assembled. According to him, after the incident he got admitted in the General Hospital at Ernakulam from where his statement was recorded by the police. Thus, during the examination of PW.1, he identified Ext.P1 F.I. Statement that had been given by him at about 4'o clock on 26/12/2001 to the police. He had identified MO.1 sword stick allegedly used by accused No.2 to threaten him. When PWs.2 to 4 were examined, they have also deposed in tune with the deposition of PW.1 and their depositions are in stereo type. But there were lot of improvements and Crl.A.No.480 of 2003 :-8-:
omissions. The contradictory statements of PWs.1, 3 and 4 are respectively marked at the instance of the defence as Exts.D1, D2 and D3.
6. On the basis of Ext.P1 statement given by PW.1, the then Head Constable, attached to Cheranelloor Police Station, who recorded Ext.P1 F.I. Statement, registered Ext.P1(a) F.I.R. and the investigation was undertaken by PW.12, the then Sub Inspector of Police, who prepared Ext.P5 scene mahazar, to which PW.6 is an attestor. PW.7 is the Doctor then attached to the General Hospital at Ernakulam, who examined PW.1 on 25/12/2001 at about 11.45 P.M. Thus, when PW.7 was examined, he identified Ext.P2 wound certificate in respect of PW.1. PW.8 is the then Village Officer of Cheranelloor Village, through whom Ext.P5 site plan had got prepared. PWs.9 and 10 are attestors to Ext.P4 recovery mahazar by which MO.1 sword stick was allegedly recovered at the instance of the accused under Section 27 of the Evidence Act. PW.13 is the then Sub Inspector of Police, who continued the investigation, Crl.A.No.480 of 2003 :-9-:
during which he prepared Ext.P6 report furnishing the correct address of the accused and he finally laid the charge. It is on the basis of the above evidence and materials the trial court found in support of the prosecution against the appellants, who are accused Nos.1 to 3.
7. Sri.T.D.Robin, the learned counsel for the appellant vehemently submitted that the learned Judge of the trial court has committed wrong in simply accepting the prosecution allegation against the appellant, ignoring the evidence and materials available on record in favour of the defence and convicting the appellants. In support of the above contentions it is pointed out that PW.1 is wholly unreliable witness because of the inbuilt contradictions and infirmities contained in his deposition. It is also the case of the learned counsel that, though PW.1 claimed that he had sustained injuries from the hands of the accused, the Doctor, who examined PW.1, had testified that PW.1 sustained no injuries. According to the learned counsel due to the material contradictions contained in Crl.A.No.480 of 2003 :-10-:
the evidence of PW.1 and the conduct of PW.1, his evidence is rendered as unbelievable and unacceptable. It is also the case of the counsel that the so-called recovery made under Section 27 of the Evidence Act and the evidences connected therewith are inadmissible for various reasons. In support of the above submission, the learned counsel placed reliance upon the decision reported in Bahal Singh Vs. State of Haryana [1976 Crl.L.J. 1568]. It is the further contention of the learned counsel that, as per the evidence of the prosecution particularly in the light of the deposition of PWs.2 to 4, it is brought on record to the effect that, those witnesses also were attacked, but the prosecution moulded its case and the allegation and the overt act are confined only against PW.1 and thus according to the learned counsel, the said facts and circumstances shows that the incident had taken place not in the manner as alleged by the prosecution and thereby the prosecution suppressed the material facts. Thus, according to the learned counsel ignoring the above vital defect in the Crl.A.No.480 of 2003 :-11-:
prosecution case, the learned Judge simply accepted the prosecution case and convicted the appellant and such conviction is liable to be set aside.
8. Per contra, the learned Public Prosecutor, after taking me through the deposition of prosecution witnesses submitted that, neither the prosecution nor PW.1 has a case that he had sustained any injury and therefore the absence of injuries as noted in Ext.P2 wound certificate not fatal to the prosecution. Due to the absence of the injury on PW.1, the delay in getting the treatment, after having admitted in the hospital is also not fatal to the prosecution. It is the submission of the learned Public Prosecutor that PWs.1 to 4 are eye witnesses, including the victim PW.1, and they have given a clear account about the incident and MO.1 weapon is recovered based upon the disclosure statement made by the second accused and the factum of seizure based upon the confession of A2 is further proved with the independent evidence of PWs.9 and 10, who are attestors to Ext.P4 recovery Crl.A.No.480 of 2003 :-12-:
mahazar. So, according to the learned Public Prosecutor the trial court is fully justified in its finding and convicting the appellant and therefore no interference is warranted.
9. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have perused the evidence and materials on record and scrutinized the judgment of the trial court.
10. In view of the divergent contentions advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and in view of the evidence and materials on record, the question to be considered is whether the conviction recorded against the appellant by the trial court is sustainable.
It is to be noted at the outset that, though the prosecution alleged certain serious offences including the offence under Section 308 of IPC with the allegation that the accused themselves formed into an unlawful assembly and prompted by their common object attacked PW.1, that part of the case of the prosecution has found by the court below against the Crl.A.No.480 of 2003 :-13-:
prosecution. As I indicated earlier, to prove the incident, the prosecution examined PWs.1 to 5, of which PW.5 turned hostile. PW.1 is cited as the victim and examined him to prove the incident. The learned counsel for the appellant took me through the deposition of PW.1. In the deposition of PW.1 particularly in chief-examination itself he had stated that:-
" [A2]
show
.
. . ......... Bad
Boys 5, 6
."
During the cross-examination for A1 to A3 and A5 to A7 PW.1 has deposed:-
"
. ...........
Crl.A.No.480 of 2003
:-14-:
.
.
.
. .......5, 8
, .
."
In spite of the above version of PW.1 during the cross- examination as well as in the chief-examination, the Doctor, who examined PW.1 within 3 hours, failed to note any injury on the body of PW.1. In Ext.P2 wound certificate PW.7 has specifically noted that no external injury is seen. When PW.7 was examined, he had also deposed confirming the content of Ext.P2 wound certificate. So, medical evidence on record, which consists of Ext.P2 wound certificate and the deposition of PW.7, are insufficient to corroborate the evidence of PW.1 and his version that he had sustained injuries on the date of the incident at the hands of the accused. PW.1 during his cross-examination specifically stated about the force exerted Crl.A.No.480 of 2003 :-15-:
and the weapon used while attacking him and he had also deposed about the contusion and abrasions etc. on his body. But the said fact proved as false by the deposition of PW.7 and Ext.P2 wound certificate. Besides the above, during the examination of PW.1 the defence has succeeded in bringing out the material contradiction, which is marked as Ext.D1. The entire allegation of the prosecution seems to be originated, when PW.1 and party removed the bicycle, which was placed by the accused across the road in question and the said fact provoked the accused according to the prosecution to attack PW.1 and other witnesses, but that material fact and allegation is denied by PW.1 as per the contradictory portion of his 161 statement marked as Ext.D1. By the denial of Ext.D1, not only the evidence of PW.1 is rendered as doubtful, but the prosecution case itself also rendered as doubtful particularly in view of the evidence of PWs.2 to 4, who are cited and examined as eye witnesses. If the case of the prosecution is true, that PW.1 and prosecution witnesses removed the bicycle Crl.A.No.480 of 2003 :-16-:
of the accused from the road, the same would have been provoked the accused for any altercation or even for the attack on PW.1 or his friends. But PW.1 denied such a case. At the very same time, it is relevant to note that, though the prosecution allegation is confined to the attack on PW.1 alone, the evidence of PWs.2 to 4 shows that they were also attacked, but regarding those aspects the prosecution is silent. So, naturally it can be seen that the prosecution wanted to suppress something, otherwise, they could have straight away approached the court by setting out the entire facts including the fact as to how PWs.2 to 4 were subjected to attack.
11. In this case it is relevant to note that, though the incident had allegedly taken place on 8 P.M. on 25/12/2001 Ext.P1 F.I. Statement of PW.1 was recorded by PW.11 only at 4 P.M. on 26/12/2001. According to me, for various reasons no legal sanctity can be attached to Ext.P1 F.I. Statement. PW.1 claimed that, immediately after the incident by hiring a car, he went to the General Hospital at Ernakulam for which = an Crl.A.No.480 of 2003 :-17-:
hour journey is required. But the evidence of PWs.2 to 4 shows that, after the incident PW.1 went to his house. Thus, the prosecution evidence on record, as to how and when PW.1 went to the hospital, there are glaring discrepancies. No explanation is forthcoming either from PW.1 or from the side of the prosecution for the delay in his getting admitted in the hospital. Ext.P2 wound certificate shows that PW.7 Doctor examined PW.1 at 11.45 P.M. on 25/12/2001 in spite of the claim of PW.1 that immediately after the incident at 8 p.m., he had gone to the hospital in a car and the required time to reach the hospital was only = an hour. So, there is a delay of more than three hours. Thus, PW.1 and PWs.2 to 4 are telling lie before the court. Therefore, the evidence of PWs.1 to 4 cannot be believed.
12. It is also relevant to note that the investigation set in motion by registering Ext.P1(a) F.I.R. As I indicated earlier Ext.P1(a) F.I.R. was registered by PW.11 on his reaching the Police Station after recording Ext.P1 F.I. Crl.A.No.480 of 2003 :-18-:
Statement of PW.1 from the General Hospital, Ernakulam at 4 P.M. on 26/12/2001. But it is borne out from Ext.P2 wound certificate that PW.1 was not admitted in the hospital. But he is treated as an out patient. If that be so, in the absence of any explanation, I cannot believe that version of prosecution is true and PW.11 got prepared Ext.P1 F.I. Statement from PW.1 on 4 P.M. on the next day, i.e., 26/12/2001, from the hospital. So, the very basis of the prosecution case is rendered as doubtful and unbelievable.
13. To connect A2 with the incident the crucial document produced by the prosecution is that of the mahazar with respect to the alleged recovery made under Section 27 of the Evidence Act. According to the prosecution, on getting custody of A2 as per the order of the court, A2 was questioned and he confessed about the concealment of MO.1 weapon.
Suffice to say, as pointed out by the learned counsel for the appellant, that disclosure statement is not produced as a prosecution document. According to the prosecution, the Crl.A.No.480 of 2003 :-19-:
accused revealed that he had thrown MO.1 sword stick to the 'bank' of a public pond at the Bagavathi temple. But in Ext.P4 seizure mahazar it is seen recorded as:-
"
.
."
On recording it, according to PW.13 himself and party as lead by the accused proceeded but it is seen further recorded in Ext.P4:-
"
."
Thus on a close reading of Ext.P4 mahazar it appears that the places at which MO.1 allegedly concealed and MO.1 taken are different by its description itself. So, such infirmities themselves are sufficient to doubt Ext.P4 recovery mahazar. Moreover it is relevant to note that the place from where MO.1 allegedly taken is a public place and the general public has got Crl.A.No.480 of 2003 :-20-:
access to the same. A learned Judge of this Court in a decision reported in Damodran Damu Vs. State of Kerala [1990(1) KLT 305], has held as follows:-
"The fact embraces the place from which the object is produced and the knowledge of the accused as to this Kottaya v. Emperor -- AIR 1947 P.C.67).
The fact discovered is the fact that the article was kept concealed there by the accused (Jaffer Hussain v. State of Maharashtra -- AIR 1970 S.C.1934). The recovery of the physical object only lends assurance to the correctness of the information given by the accused. That assurance can be had otherwise also. But it is necessary to show that the knowledge was exclusive to the accused, it was first derived from him and it was not known to the police from any other source (Jaffer Hussain' case -- AIR 1970 S.C.1934). It is that exclusive information, the correctness of which is assured by the discovery of the fact, that gives sanctity to it and connects the accused with the crime. That alone is the relevance of the openness of the place. Crl.A.No.480 of 2003
:-21-:
Even in an open place, an object can be kept concealed, say underground or in a traffic umbrella in a public road, with the information exclusively remaining with the accused who is the author of concealment.
Here authorship of concealment and exclusive knowledge are there and the evidence is acceptable as incriminating when the weapon is proved to have been used for the offence." [Emphasis supplied] As I indicated earlier, the information about the place at which MO.1 thrown and the place from when MO.1, produced are entirely different and thus on strict application of the above decision in the present case, no evidentiary value can be attached to such recovery.
14. Besides the above defect during the trial of the case, the learned Public Prosecutor asked a leading question to PW.9. In the chief-examination itself the question and answer is seen recorded as follows:-
"2- (Q) Crl.A.No.480 of 2003 :-22-:
.(A)"
On the basis of the above leading question and particularly on the strength of the decision reported in Varkey Joseph Vs. State of Kerala [1993 (2) KLT 617] the learned counsel submitted that the accused/appellant is denied a fair trial as enshrined under Article 21 of the Constitution of India, and the learned Judge of the trial court, ignoring the legal consequences of such leading question simply accepted the evidence of PWs.9 and 13 to convict the appellants. In the decision in Varkey Joseph Vs. State of Kerala [1993 (2) KLT 617] the Hon'ble Apex Court in paragraph 11 of the above decision has held:-
"Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact Crl.A.No.480 of 2003 :-23-:
in dispute. The attention of the witness cannot be directed in chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise be called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted (sic) to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he has seen. The prosecutor will not be allowed to frame his question in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself Crl.A.No.480 of 2003 :-24-:
had seen. Ss.145 and 154 of the Evidence Act is intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution.
Ss.143 and 154 provides the right to cross- examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein adverse party is entitled to put leading questions but S.142 does not give such power to the prosecutor to put leading question on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness may answer in yes or no but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer Crl.A.No.480 of 2003 :-25-:
which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted herein before clearly show the fact that the prosecutor led the witnesses to what he intended that they should say about the material part of the prosecution case to prove against the accused which is illegal and obviously unfair to the accused offending his right to fair trial enshrined under Art.21 of the Constitution. It is not a curable irregularity." [Emphasis supplied] In the present case also by permitting the Public Prosecutor to put leading questions to PW.9, the trial court permitted the prosecutor to convey the answer, what required by him from PW.9 and thereby elicited answer in support of the case of the prosecution. The Supreme Court in the above cited decision has held that :-"leading questions by the Prosecutor or the plaintiff to a witness touching the material part of the prosecution case to prove against the accused which is illegal and obviously unfair to the accused offending Crl.A.No.480 of 2003 :-26-:
his right to fair trial enshrined under Art.21 of the Constitution and it is further held such irregularity is not curable one." [Emphasis supplied]. In the present case I have already referred to the inherent improbabilities and defect in the prosecution case and therefore the attempt to introduce evidence from the side of prosecution, to connect the accused with the alleged incident, under the guise of Section 27 of Evidence Act during the trial by putting leading questions is highly illegal and arbitrary. Therefore, on that ground also the evidence and circumstances connected with Section 27 recovery cannot be accepted to convict the appellants.
15. In this juncture, according to me, it is appropriate to refer to the approach of the trial court as to how it dealt with the case on hand. In the light of the points which I referred and discussed, it can be seen that the defence has got very specific and serious contentions both on factual and legal aspect. But in the impugned judgment none of the contentions seen referred and discussed by the learned Judge and no Crl.A.No.480 of 2003 :-27-:
reason is assigned to reject such contentions. To ensure the fairness of the trial, according to me, the trial court is expected consider both the cases of the prosecution as well as the defence in its entirety and to come into a just and proper decision by assigning factual and legal reasons and while disposing the case neither the prosecution nor the defence should have a grievance that their case was not properly considered by the court. In appeal, unless there are references to the case of the prosecution as well as the defence and the contentions advanced from both the sides and the reasons either to reject or to accept such contentions, the appellate court will not be in a position to consider whether reasons assigned by the learned Judge are correct, legal and proper and whether the trial court has ensured a fair and proper trial. In the present case there is no such reference to the defence contentions and the materials and the evidences relied on by the defence and no reasons are assigned in the judgment to reject such contentions of the defence and hence Crl.A.No.480 of 2003 :-28-:
according to me, the trial court is seriously erred in its approach and failed to ensure fairness of trial, which is a constitutional mandate.
In the light of the aforesaid reasons and the evidence and materials on record which I referred above, I am of the firm view that the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt and the trial court has miserably failed to consider those vital defects in the prosecution case and not extending the benefit of doubt in favour of the appellants/accused. Therefore, I am unable to confirm the finding and the conviction recorded by the trial court against the appellants. Accordingly the conviction recorded by the trial court against the appellant for the offences under Sections 323, 324, 341 read with Section 34 of IPC is set aside.
In the result, this appeal is allowed, setting aside the judgment dated 22/2/2003 in S.C.No.299 of 2002 of the court of the Additional Sessions Judge, (Adhoc-II), Ernakulam and Crl.A.No.480 of 2003 :-29-:
the appellants/accused are acquitted of all the charges levelled against them and the bail bond, if any, executed by them stand cancelled and they are set at liberty. If the appellants have already deposited any amount towards the fine, in terms of the order passed by this Court while suspending the execution of sentence and if the said amount is retained in the trial court, the same shall be released to the appellants forthwith in case an application is filed in this regard.
V.K.MOHANAN, JUDGE skj True copy P.A. to Judge