Kerala High Court
Dominic Raj @ Joly vs The State Of Kerala on 9 July, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 10TH DAY OF DECEMBER 2013/19TH AGRAHAYANA, 1935
CRL.A.No. 1266 of 2003 ( )
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AGAINST THE JUDGMENT IN CC NO.716/1997 of J.M.F.C.-III,
NEYYATTINKARA, DATED 09-07-2002
APPELLANT(S)/COMPLAINANT:
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DOMINIC RAJ @ JOLY, S/O.RAJEEVAN,
NELLIKALAPUTHEN VEEDU,
EERATTINPURAM,
PASSUVANNARA DESOM,
KEEZHAROOR VILLAGE.
BY ADV. SRI.R.T.PRADEEP
RESPONDENT(S)/ACCUSED:
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1. THE STATE OF KERALA, REPRESENTED BY
THE DIRECTOR GENERAL OF PROSECUTION,
HIGH COURT OF KERALA,
ERNAKULAM.
2. VARGHESE ALIAS SOMAN,
S/O.NARAYANAN,
KIZHAKKARUKU PUTHEN VEEDU,
EERATTINPURAM, KARAYAKATTU VILA,
MAMBAZHAKARA DESOM,
PERUMPAZHUTHOOR VILLAGE.
3. KRISHNANKUTTY, S/O.VASUDEVAN,
VADAKUMKARA PUTHEN VEEDU,
KORALA, PASSUVANNARA DESOM,
KEEZHAROOR VILLAGE, NEYYATTINKARA.
4. KRISHNANKUTTY, S/O.VENUDHARAN,
S.K.BHAVAN, PASSUVANNARA,
KEEZHAROOR VILLAGE.
5. AMBILY ALIAS MANIYAN, S/O.PAULOSE,
VAJALARIKATHU PUTHEN VEEDU,
KORELA,PASSURANNARA.
6. SASIDHARAN ALIAS SASI, S/O.KUTTAN PILLA,
PERAYATHUVILA PUTHEN VEEDU,
PASSUVANNARA DESOM.
BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH
ADV.SRI.M.R.ANANDAKUTTAN
ADV. SRI.SADIQUE.B.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.No.1266 of 2003
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Dated this the 10th day of December, 2013.
J U D G M E N T
The complainant in a private complaint is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 248(1) of Cr.P.C. in favour of the accused who faced the prosecution for the offences punishable under Sections 143, 147, 148, 324, 326 and 379 r/w 149 of IPC. The impugned judgment is dated 9.7.2002 in C.C.No.716/97 of the court of Judicial First Class Magistrate-III, Neyyattinkara.
2. The allegation against the accused is that, on 18.2.1997 at about 7.30 p.m., the accused 5 in numbers formed themselves into an unlawful assembly at Pasuvannara in Earattinpuram road armed with deadly weapons like penknife and stone and in furtherance of their common object to attack the complainant as well as his Crl.A.No.1266 of 2003 2 father, they blocked the motorcycle ridden by the complainant and when the complainant tried to ran away after abandoning the motorcycle, the accused chased him and the first accused has struck at the left side of his forehead with the blunt portion of the pen knife held by him and that the second accused struck at his nose and upper lip with a stone and that the third and fourth accused fisted at his back and loin portion and that in the meantime the 5th accused fisted at his back and that when the father of the complainant intervened in the mater, the 1st accused struck him to be headed with the blunt portion of the pen knife held by him and when the father of the complainant tried to shield the attack, the same caused injuries at his right wrist and that in the meantime the 2nd accused with a country stone held by him, struck at his back causing fracture to the ninth and tenth ribs and thereby the accused have committed offences punishable under Sections 143, 147, 148, 324, 326 and 379 r/w 149 of IPC. Crl.A.No.1266 of 2003 3
3. On receipt of the above complaint, in due compliance of the procedure and having conducted an enquiry, the case was taken on file as C.C.No.716/97 and on appearance of the accused, the prosecution records were served on them and after a preliminary hearing, a formal charge was framed against the accused 5 in numbers for the offences punishable under Sections 143, 147, 148, 324, 326 and 379 r/w 149 of IPC and when the said charge read over and explained to the accused, they denied the same and pleaded not guilty. As the accused denied the charge, Pws.1 to 6 were examined and Exts.P1 to P25 documents were marked from the side of the prosecution. From the side of the defence, Dws.1 and 2 were examined and Exts.D1 to D4 and Exts.X1 series and X2 series were produced and marked. The trial court found that the incident in question alleged by the complainant did not occur in the manner as alleged by the prosecution and therefore extending the benefit of doubt, the accused are acquitted, particularly holding that the prosecution has Crl.A.No.1266 of 2003 4 miserably failed to prove the guilt of the accused beyond reasonable doubt. Consequently, the accused are found not guilty of the offence alleged against them and they are accordingly acquitted under Section 248(1) of Cr.P.C. It is against the above finding and order of acquittal, the complainant therein preferred this appeal.
4. I have heard Adv.Sri.R.T.Pradeep, the learned counsel for the appellant and Adv.Sri.M.R.Anandakuttan, the learned counsel for the respondents and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.
5. Learned counsel for the appellant after taking me through the entire evidence and materials on record, has vehemently submitted that the evidence of the ocular witnesses, including the injured Pws.1 and 2, is consistent with the medical evidence adduced in this case and therefore the learned Magistrate is wrong in disbelieving the evidence of PW6-the doctor, who was examined as PW2 and who issued Ext.P1 discharge card. According to the Crl.A.No.1266 of 2003 5 learned counsel, even though there is some slight inconsistency in between the medical evidence, on a total consideration of the entire evidence, it would show that there is no inconsistency between the ocular evidence and the medical evidence. It is also the contention of the learned counsel that the order of acquittal recorded by the trial court in favour of the accused with respect to the offence under section 379 is also legally and factually incorrect. According to the learned counsel, the trial court simply on the basis of Ext.D3, which is a 161 statement recorded by the Police connected with the crime registered with respect to the same incident, has acquitted the accused ignoring the legal position that 161 statement has no evidentiary value and the court simply relying upon Ext.D3, has rejected the case of the appellant/PW1 about the theft of `7,000/-, which is a serious offence committed by the 1st accused. In support of the above contention, the learned counsel placed reliance upon the following decisions of the Honourable Apex Court reported in Crl.A.No.1266 of 2003 6 Solanki Chimanbhai Ukabhai Vs. State of Gujarat [(1983) 2 Supreme Court Cases 174 paragraph 13] and Rangnathshamrao Dhas and ors. Vs. State of Maharashtra (2009(4) SCC Page 33 paragraph 40). So, according to the learned counsel, the order of acquittal recorded by the trial court is liable to be interfered with and the respondents/ accused are liable to be punished for the offences under Sections 326 and 379 of IPC and other offences charged against them.
6. Per contra, the learned counsel appearing for the contesting respondents vehemently submitted that the very same accused had already faced the prosecution, which was instituted on the basis of the Police report in which the present complainant was the de facto complainant and they were convicted for almost all the offences, except under sections 326 and 379 of IPC and the present prosecution is initiated only to harass the accused, who are forced to face a second prosecution on the same set of allegation. According to the learned counsel, the trial court has Crl.A.No.1266 of 2003 7 elaborately considered the evidence and materials on record and on the basis of the glaring inconsistencies occurred in the medical evidence, the trial court refused to believe PW6, which approach of the court below is absolutely correct and no interference is warranted.
7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the contesting respondents. I have perused the evidence and materials on record.
8. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and acquitting the accused of all the charges levelled against them and the further question to be considered is whether the appellant has succeeded in making out any ground to interfere with the order of acquittal recorded by the trial court. At the outset it is to be noted that connected with the very same incident, in Vellarada Police Station, Crime No.61/97 was registered Crl.A.No.1266 of 2003 8 against the very same accused who faced the prosecution in the present case and the said case was ended in conviction of all the five accused for various offences including the offences under Sections 143, 147, 148, 149, 323 and 324 of IPC.
9. According to the complainant, besides the above offences, for which the accused tried in the case instituted upon the Police report, the accused in the case had also committed the offences punishable under sections 326 and 379 of IPC and hence he filed separate complaint, upon which, cognizance was taken and C.C.No.716/97 is instituted. In the light of the argument advanced, the only question to be considered is whether the trial court is justified in acquitting the accused, rejecting the evidence of PW6 and Ext.P1 discharge card. On a consideration of the entire evidence and materials on record, it appears that connected with the incident taken place in the present case, Pws.1 and 2 admitted in the Taluk Head Quarters Hospital, Neyyattinkara, wherein they had undergone Crl.A.No.1266 of 2003 9 treatment as in-patient for the period between 18.2.1997 and 20.2.1997. Exts.D2 and D4 are the wound certificates respectively with respect to Pws.1 and 2. According to the complainant, PW2 admitted in the Medical College Hospital, Thiruvananthapuram, on 19.2.1997 and continued the treatment there, till 24.2.1997 and thereafter he was discharged as per Ext.P1 discharge card. It is the further case of the complainant that, as per the evidence of PW6, PW2 had sustained fracture injuries on his 9th and 10th ribs. According to the complainant, Pws.1 and 2-the injured as well as Pws.3 and 4-the occurrence witnesses, deposed before the court about the injuries sustained not only by PW1-the appellant/complainant but also by PW2. The above evidence of ocular witnesses, according to the complainant, is corroborated by the evidence of PW6 and therefore the trial court is wrong in acquitting the accused.
10. I am unable to sustain the above contention. First of all, it is relevant to note that, immediately after the incident, which was taken place on 18.2.1997, Pws.1 and 2 Crl.A.No.1266 of 2003 10 were admitted in the Taluk Head Quarters Hospital, Neyyattinkara, on 18.2.1997 itself and they were continued the treatment in that hospital till 20.2.1997. Exts.X1 series and X2 series show the said facts. DW2, the doctor, who examined has also deposed the fact that Pws.1 and 2 were under his treatment in the Taluk Head Quarters Hospital, Neyyattinkara, between the period from 18.2.1997 to 20.2.1997. It is also relevant to note that PW5 who is the Civil Surgeon of Taluk Head Quarters Hospital, Neyyattinkara, who examined PW2 on 18.2.1997 when he was admitted in the hospital. Accordingly, PW5 issued Ext.D4 wound certificate. In Ext.D4 certificate, there is no reference to the fracture of 9th and 10th ribs of PW2. Absolutely, no evidence is adduced by the complainant as to how PW2 was got admitted in the Medical College Hospital on 19.2.1997 and undertaken the treatment upto 24.2.1997, particularly the records, ie., Ext.X1 and X2 and Ext.D4, shows that PW2 was admitted in the Taluk Head Quarters Hospital, Neyyattinkara, on 18.2.1997 and treated Crl.A.No.1266 of 2003 11 upto 20.2.1997. So, the documentary evidences available on record render the evidence of PW6 as unbelievable. If the treatment undertaken by PW2 in the Medical College Hospital is after 20.2.1997, we can give some bonus to the said claim of PW2. But the records shows that, while PW2 was undergoing treatment as an in-patient in the Taluk Head Quarters Hospital, Neyyattinkara, in parallel to that, he had taken treatment in the Medical College Hospital between 19.2.1997 to 24.2.1997, which according to me, is impossible, unless sufficient reasons are shown, that, under what circumstances PW2 got admitted in the hospital. The accused need not establish their defence beyond reasonable doubt and such evidence of the accused need not be weighed in golden scales. By the available evidence, the accused has succeeded to show the version of PW6 that, PW2 had admitted in the Medical College Hospital on 19.2.1997 and discharged from that hospital on 24.2.1997 as improbable and incorrect. As I indicated earlier, the complainant has no case that PW2 was referred from the Crl.A.No.1266 of 2003 12 Taluk Head Quarters Hospital, Neyyattinkara, to the said Medical College Hospital, or PW2 was having any complaint connected with the fracture of the 9th and 10th ribs, till he was discharged on 20.2.1997 from the Taluk Head Quarters Hospital, Neyyattinkara. So the above evidence of PW6 is not consistent with the evidence and materials on record, rather, the same render as inconsistent with the medical evidence on record which goes against the case of the complainant as such. Hence according to me, the trial court is fully justified in acquitting the accused for the offence under Section 326 of IPC.
11. Against the acquittal of the accused for the offence under section 379 of IPC, the main contention advanced by the learned counsel is that Ext.D3 cannot be treated as a legal evidence. I have no hesitation to sustain such contention. In the present case, it can be seen that Ext.D3 was marked through PW2 and during his cross examination, it is brought on his evidence to the effect that, Crl.A.No.1266 of 2003 13 "
Police . " However, there is some procedural irregularities in bringing the above admission of PW2 in evidence. In view of Section 145 of the Evidence Act, the above portion containing Ext.D3 ought to have put to PW2, after inviting his attention to that part of Ext.D3 statement, but such a procedure is not adopted in this case. Because of that procedural irregularity, according to me, the evidence of PW2 cannot be ignored. Thus it can be seen that about the theft of `7,000/-, PW2 has no consistent case. Hence, I find no scope to interfere with the findings of the court below with respect to the offence under section 379 of IPC alleging against the accused.
12. In the light of the above discussion and in view of the evidence and materials on record, I am of the view that, the appellant has miserably failed in making out any grounds to interfere with the order of acquittal recorded by the trial court. In a recent decision reported in Mokkiah Crl.A.No.1266 of 2003 14 & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88], it has held that, "8. In a recent decision in Murugesan & Ors. vs. State Through Inspector of Police, 2012 (10) SCC 383, one of us Ranjan Gogoi, J. elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup vs. King Emperor, AIR 1934 PC 227 (2) and series of subsequent pronouncements in para 21 summarized various principles as found in para 42 of Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 as under:
21. xxxxxxxxxxxxxx "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 re-consider 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', 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 Crl.A.No.1266 of 2003 15 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." (emphasis supplied).
So, on examination of facts and circumstances of the case on hand and the evidence and materials on record, in the light of the guideline issued by the Honourable Apex Court in the above cited decision, it can be seen that the reasons assigned by the learned Magistrate in support of his finding are quite reasonable and legal, and it cannot be said that the same are perverse or illegal. The appellant has miserably failed to make out any compelling circumstances Crl.A.No.1266 of 2003 16 or substantial reasons to disturb the double presumption of innocence secured by the 1st respondent/accused as per the impugned judgment. Therefore, no interference is warranted with the order of acquittal recorded by the trial court.
In the result, I find no merit in this appeal and accordingly the same is dismissed.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge