Kerala High Court
Treesa Albert vs State Of Kerala on 5 February, 2020
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941
CRA(V).No.594 OF 2015
AGAINST THE ORDER/JUDGMENT IN CP 38/2014 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II, KOLLAM
AGAINST THE ORDER/JUDGMENT IN SC 626/2014 DATED 31-03-2015 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOLLAM
CRIME NO.377/2011 OF Sakthikulangara Police Station, Kollam
APPELLANT:
TREESA ALBERT
KAYALTHOPU NEW HOUSE, MUKKAD, KAVANADU POST,
KOLLAM-3.
BY ADV. SRI.P.SANJAY
RESPONDENTS/RESPONDENTS/ACCUSED/STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
2 JOSHI MENECIOUS,
KAYAITHOPE VEEDU, MEENATHU CHERRI,
SAKTHIKULANGARA VILLAGE, KOLLAM.
3 OUSEPH KUTTI
S/O.JOSEPH, KAYAITHOPE VEEDU, MEENATHU CHERRI,
SAKTHIKULANGARA VILLAGE, KOLLAM.
4 MENNECIOUS @ BINOY
S/O.PETER, KAYAITHOPE VEEDU, MEENATHU CHERRI,
SAKTHIKULANGARA VILLAGE, KOLLAM.
5 JOSEPH
S/O.PETER, KAYAITHOPE VEEDU, MEENATHU CHERRI,
SAKTHIKULANGARA VILLAGE, KOLLAM.
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017
:-2-:
6 ROSAMMA @ THANGAMMA
D/O.THRESIAMMA, KAYAITHOPE VEEDU,
MEENATHU CHERRI, SAKTHIKULANGARA VILLAGE, KOLLAM
7 ANJALI @ THANGAMMA
D/O.JOSIYA, KAYAITHOPE VEEDU, MEENATHU CHERRI,
SAKTHIKULANGARA VILLAGE, KOLLAM.
8 LISA,
D/O.JAIN, KAYAITHOPE VEEDU, MEENATHU CHERRI,
SAKTHIKULANGARA VILLAGE, KOLLAM
R2, R4, R6-7 BY ADV. SRI.V.JAYAPRADEEP
R2, R4, R6-7 BY ADV. SMT.ANN SUSAN GEORGE
R3 BY ADV. SRI.S.SREEKUMAR (KOLLAM)
OTHER PRESENT:
R1 BY SR.PP MR.ALEX M THOMBRA
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN
FINALLY HEARD ON 21-01-2020, ALONG WITH CRL.A.246/2017, THE
COURT ON 05-02-2020 DELIVERED THE FOLLOWING:
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017
:-3-:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 05TH DAY OF FEBRUARY, 2020 / 16TH MAGHA, 1941
CRL.A.No.246 OF 2017
AGAINST THE ORDER/JUDGMENT IN CP 38/2014 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II, KOLLAM
AGAINST THE ORDER/JUDGMENT IN SC 626/2014 DATED 31-03-2015 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOLLAM
CRIME NO.377/2011 OF Sakthikulangara Police Station , Kollam
APPELLANT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA,ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA.
RESPONDENTS/ACCUSED NOS.1 TO 7:
1 JOSHI MENECIOUS,
KAYALTHOPE VEEDU,MEENATHU CHERRI,SAKTHIKULANGARA
VILLAGE.
2 OUSEPH KUTTI,
S/O JOSEPH,KAYALTHOPE VEEDU,MEENATHU
CHERRI,SAKTHIKKULANGARA VILLAGE.
3 MENNECIOUS @ BINOY,
S/O.PETER,KAYALTHOPE VEEDU,MEENATHU
CHERRI,SAKTHIKULANGARA VILLAGE.
4 JOSEPH,
S/O.PETER,KAYALTHOPE VEEDU,MEENATHU
CHERRI,SAKTHIKULANGARA VILLAGE.
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017
:-4-:
5 ROSAMMA @ THANKAMMA
D/O.THRESIAMMA,KAYALTHOPE VEEDU,MEENATHU
CHERRI,SAKTHIKULANGARA VILLAGE.
6 ANJILA @ THANKAMMA,
D/O.JOSIYA,KAYALTHOPE VEEDU,MEENATHU
CHERRI,SAKTHIKULANGARA VILLAGE.
7 LISA,
D/O.JAIN,KAYALTHOPE VEEDU,MEENATHU
CHERRI,SAKTHIKULANGARA VILLAGE.
R1 BY ADV. SRI.V.JAYAPRADEEP
R1 BY ADV. SRI.E.SHANAVASKHAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21-01-2020, ALONG WITH CRA(V).594/2015, THE COURT ON 05-02-2020
DELIVERED THE FOLLOWING:
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017
:-5-:
JUDGMENT
[CRA(V).594/2015 & CRL.A.246/2017] (Dated this the 5th day of February 2020) N.ANILKUMAR,J:
Crl.A.(V) No.594 of 2015 is filed by PW2-Treesa Albert, who is the mother of deceased Sampath, challenging the judgment dated 31.3.2015 in S.C.No.626/2014 of the court of Additional Sessions Judge-V, Kollam. PW2 is a victim as defined under Section 2(wa) of the Code of Criminal Procedure,1973 (for short 'the Cr.P.C.'). Crl.A.No. 246/2017 is filed by the State challenging the acquittal of accused in S.C.No.626/2014.
2. By judgment dated 31.3.2015, the learned Additional Sessions Judge-V, Kollam acquitted accused Nos.1 to 7 for the offences punishable under Sections 143,147,148,447,323,308 and 302 read with Section 149 of the Indian Penal Code,1860 (for short 'the IPC') in a case arising out of Crime No.377/2011 of Sakthikulangara Police Station.
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-6-:
3. The prosecution case, in brief, is that on 23.4.2011 at 15.45 hours, on the eastern side of Kayalthoppu House in Sakthikulangara Village, all the accused formed themselves into an unlawful assembly, armed with deadly weapons for the purpose of rioting and in prosecution of their common object, attempted to murder Sampath, PWs.1 and 2. Sampath, who is none other than the son of PWs.1 and 2, succumbed to the injuries later.
4. After completion of the investigation, PW14 laid the final report before the jurisdictional Magistrate court. On committal, the learned Sessions Judge took cognizance of the offences punishable under Sections 143,147,148,447,323,308, 302 r/w 149 IPC and made over the case to the Additional Sessions Court, Kollam for trial and disposal. After having heard both sides, the learned Sessions Judge framed charges against the accused to which all the accused pleaded not guilty.
5. When the case came up for evidence on the prosecution side, PWs.1 to 15 were examined and marked Exts.P1 to P25 and MOs.1 to 12 on the prosecution side.
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-7-:
6. On closing the evidence of prosecution, the accused were questioned under Section 313(1)(b) of Cr.P.C. They denied the allegations. The learned Sessions Judge did not deem it fit and proper to acquit the accused under Section 232 of Cr.P.C. Hence the accused were called upon to enter on their defence and adduce evidence, which they might have had in support thereof. DWs.1 and 2 were examined and marked Exts.D1 to D7 on their side.
7. Heard Sri.P.Sanjay, the learned counsel for the appellant in Crl.A(V) No.594/2015, Sri.S.Sreekumar (Kollam), the learned counsel for third respondent and Sri.V.Jayapradeep, the learned counsel appearing for respondents 2,4,6 and 7 in Crl.A(V) No. 594/2015 and Sri.Alex.M.Thombra, the learned Senior Public Prosecutor appearing for the State in both cases.
8. Sri.P.Sanjay, Learned counsel for the appellant in Crl.A(V) No.594/2015 contended that the findings recorded by the trial court are contrary to the evidence on record and therefore, the impugned judgment is liable to be set aside. According to the learned counsel for the appellant, the trial court's conclusion was Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-8-:
based upon wrong appreciation of evidence, manifestly unjust and unreasonable, resulting in grave miscarriage of justice. It is further submitted that the entire approach of the trial court in dealing with the evidence was patently illegal and was based on an erroneous view of law.
9. Learned Senior Public Prosecutor supported the contentions advanced by the learned counsel for the appellant in Crl.A(V) No.594/2015 contending that the findings of the trial court are perverse.
10. On the other hand, refuting the contentions advanced for and on behalf of the appellant, the learned counsel for the respondents 2 to 8 in Crl.A(V).No.594 of 2015 contended that the respondents are innocent and the trial court has therefore rightly acquitted the accused. The learned counsel for respondents 2 to 8 submitted that in an appeal against acquittal, if two views can be reached- one that leads to acquittal and the other to conviction, the appellate court must rule in favour of the accused. It is further submitted that the appellate court must always give proper weight and consideration Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-9-:
to the finding of the trial court in order to see whether the findings recorded by the trial court are perverse. It is argued that when credibility of a witness is at issue, it is not enough for the appellate court to take a different view of the evidence in an appeal against acquittal. There must be substantial and compelling reason for holding that the trial court was wrong, it has been submitted.
11. In the light of the above contentions, it is necessary to analyse the question as to whether the findings recorded by the trial court are perverse or not. We have perused the entire evidence on record including the statements of the witnesses in detail.
12. PW1 Albert Fernandez is the father of deceased Sampath.
According to him, on 23.4.2011, between 3.30 pm and 4 pm, all the accused formed themselves into an unlawful assembly, armed with deadly weapons for the purpose of rioting and in prosecution of their common object, criminally trespassed into his residence under the name and style 'Kayalthoppu' in Sakthikulanagara Village and assaulted him, his wife and his son Sampath. The accused are closely related to PW2. They are the children, son-in-laws and Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-10-:
grandchildren of the uncle of PW2. On the date of occurrence, PW1 and his son Sampath attended a betrothal ceremony of one of the close relatives and returned at about 2 pm. While both of them were taking rest at home, they heard an exchange of words between PW2 and fifth accused Rosamma in connection with dumping of waste in her property. Immediately, accused Nos.1 to 4 came to the residence of PW1, armed with deadly weapons such as carved wooden leg and reaper and assaulted Sampath. According to him, the first accused had beaten Sampath on his head with a piece of wooden furniture and when he fell down, the second accused had beaten him with a wooden log. He further stated that the third accused had beaten him with a reaper and the fourth accused had beaten him on various parts of his body with stick. When PW2 intervened, the accused Nos.5 to 7 slapped her and the third accused had beaten her with a reaper. When he intervened, the first accused had started beating on his head with a carved wooden log and second accused beat on his left hand with a log. PW1 testified that all of them sustained injuries. According to him, Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-11-:
the attempt of the accused was to do away with them. Although Sampath was taken to the hospital along with PWs.1 and 2, he succumbed to the injuries sustained to him.
13. PW2-the wife of PW1 (mother of the deceased) supported the version of PW1 in full. Both PWs.1 and 2 stated before the court that the boundary dispute was in existence between the parties for the last 16 years. They have also identified MOs. 1 to 4 before court.
14. PW3 is the wife of the deceased Sampath. She stated that on account of the boundary dispute, the accused 1 to 7 formed themselves into an unlawful assembly and assaulted PWs.1 and 2 and her husband. She was an eye witness to the occurrence. She also testified in terms of the deposition given by PWs.1 and 2.
15. PW4 is an autorickshaw driver residing near to the residence of PWs.1 to 3. On 23.4.2011, between 3.30 pm and 4 pm, he heard a hue and cry from the residence of PWs.1 and 2. His autorickshaw stand is situated 20 kms away from the residence of PWs.1 and 2. On hearing the cry, he rushed to the residence of the Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-12-:
deceased along with CW1 one Podiyan where they found Sampath lying unconscious on the ground in a pool of blood and PWs.1 and 2 were also there with injuries. He also saw the accused at the place of occurrence armed with weapons. On seeing them, the accused ran away from the place of occurrence leaving the weapons. They have taken Sampath to the hospital. PW1 was also present when Sampath was taken to the hospital. After sometime, PW2 was also brought to the hospital.
16. The criminal law was set in motion pursuant to Ext.P9 statement given by PW12, who is the uncle of the deceased Sampath. He rushed to the scene of occurrence on hearing the hue and cry from the residence of PWs.1 and 2. When he reached the spot, he found Sampath lying unconscious and PWs.1 and 2 were also there with injuries. He also saw the accused armed with deadly weapons and on seeing them, they ran away abandoning the weapons. PW4 was also present when he went to the residence of PWs.1 and 2. According to him, the accused left the scene of occurrence on seeing them. PW13 recorded Ext.P9 statement of Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-13-:
PW12 and registered Ext.P10 FIR for the offences punishable under Sections 447,324,302 read with Section 34 of IPC.
17. On 23.4.2011, at 4.45 pm PW5, who was the Casualty Medical Officer of Benziger Hospital, Kollam examined PWs.1 and 2 and issued Exts.P2 and P1 Accident Register-cum-Wound Certificates respectively. Ext.P1 would show that Treesa Albert (PW2) sustained lacerated wound in the left occipital region whereas PW1 sustained a cut injury on the left parietal region 5x1x0.5cm. In addition to the above injury, PW1 also sustained contusion both in the scapular region and in the left upper arm.
18. PW6 is a signatory to Ext.P3 inquest report. According to him, the inquest was conducted at Sanker's Hospital, Kollam.
From the evidence of PWs.1 to 4, it is brought out that immediately after the occurrence, Sampath was taken to Benziger Hospital, Kollam for treatment. However, the evidence of PW6 would show that the inquest was conducted at Sanker's Hospital, Kollam. According to him, there was no mortuary attached to Benziger hospital on the relevant day and hence, the deadbody was shifted to Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-14-:
Sanker's Hospital, Kollam, where the inquest was conducted.
19. PW7 is a signatory to Ext.P4 mahazar prepared on 24.4.2011. He stated that Ext.P4 mahazar was prepared in his presence.
20. On 24.4.2011, PW9, while working as Assistant Professor of Forensic Medicine, Medical College Hospital, Thiruvananthapuram, conducted postmortem examination on the body of the deceased and issued Ext.P6 Postmortem Certificate noting 11 ante mortem injuries. PW9 stated that all injuries except injury No.7 is possible by MOs.3 and 4 and injury No.7 is possible by MOs.1 and 2 series in its single force. The details of ante mortem injuries are as follows:-
"1. Multiple superficial lacerated wounds of sizes varying from 0.7x0.3cm to 1.3x0.5cm over an area 4x2.5cm on right side of forehead and adjoining areas of upper eyelid, its upper extent was 7cm outer to midline and 1cm above eyebrow with an area of contusion 1.5x1x0.5cm on upper eyelid just inner to lacerated wounds.
2. Superficial lacerated wounds of sizes varying from 2x0.3cm to 3x0.5cm obliquely placed over an area 6x1cm on right lower eyelid and adjoining areas of face.
3. Multiple abrasions of sizes varying from 0.3x0.2 cm to 2x0.3cm obliquely placed over an area 4.5x1 cm on middle of forehead, its lower inner end was just above Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-15-:
root of nose.
4. Multiple abrasions of sizes varying from 0.3x0.3cm to 0.7x0.3cm obliquely placed over an area 1.5 x0.5 cm on bridge and right side of nose, its upper inner end was just below root of nose.
5. Multiple abrasions of sizes varying from 0.4x0.2cm to 2.5x0.2 cm over an area 3.5x2cm on left side of forehead 6cm above eyebrow and 1.5 cm to left of midline.
6. Lacerated wound 0.7x0.3x0.1 cm on left side of face 2cm outer to ala of nose.
7. Abrasions 5.5x4cm on left side of top of head 1cm outer to midline and 12cm above the level of occiput.
Contusion 19x12x0.7cm on top, back and sides of head, its front extent was 12cm above root of nose. Skull showed(1) fissured fracture 14cm long coronally placed on left tempero parietal area extending to left side of middle cranial fossa with another fissured fracture (7cm long) seen extending forwards from the upper third of the above fracture. (2) sutural separation of lambdoid suture on right side (11cm long) with separation of sagittal suture 4cm long forwards and fissured fracture 3cm long forwards and to the left from its upper end. Brain showed contusions with superficial lacerations on (1) under surface (3.5x3x0.4cm) and tip(3x2.5x0.5cm) of right temporal lobe and superficial contusions on undersurface of frontal lobes (3.5x3cm), tip and adjoining areas of right occipital lobe(6x3.5cm) and tip of left occipital lobe (4x2cm). Subdural and subarachnoid haemorrhage present bilaterally, more on right side. Sulci narrowed and gyri flattened.
8. Superficial contusion 4x2.5cm on left side of back of trunk 8cm below top of shoulder and 10cm outer to midline.
9. Multiple linear abrasion of sizes varying from 8.5cm to 15cm in varying dispositions over an area 15x2cm, on outer aspect of right thigh 15cm below top of hip bone.
10. Multiple small abrasions over an area 4x1.5cm on outer aspect of left arm 7cm above wrist.
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-16-:
11. Abrasion 4x3cm on inner aspect and back of left forearm 7cm above wrist."
21. Ext.P2 Accident Register-cum-Wound certificate issued would show that PW1 was admitted as an inpatient [IP NO.1112/01442] at Benziger Hospital, Kollam. PW14 took over the investigation in this case on 24.4.2011 and prepared Ext.P3 inquest report. Column No.11 in Ext.P3 is pertaining to the apparent cause of death. In column No.11, it is stated that the deceased died on account of the injuries inflicted on his head and with wooden pieces. As stated earlier, the inquest was conducted at Sanker's Hospital, Kollam. PW14 visited the scene of occurrence and prepared Ext.P4 mahazar. In Ext.P4 mahazar, it is stated that PW1 was present to show the scene of occurrence to PW14 on 24.4.2011 at 12.30 hrs. No explanation was forthcoming on the part of PW14 as to how PW1 was present at the place of occurrence though he was admitted at the Benziger Hospital on 23.4.2011 at 4.45 pm in connection with the injuries sustained to him. Discharge certificate of PW1 was also not produced to clear the doubt. Ext.P1 is silent, touching the discharge of PW1 from the Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-17-:
Benziger Hospital, Kollam. PW14 conducted investigation in this case and filed final report before this Court. During investigation, PW14 prepared Ext.P8 inventory relating to the judgments in O.S.No.1221/99 of the Principal Munsiff's Court, Kollam and A.S.No.113/2007 of the 3rd Addtitional District Judge, Kollam.
22. PW15 was the Circle Inspector of Police, Kollam West Police Station from 1.9.2011 to 5.3.2014. He obtained the plan prepared by the Village Officer and produced it before the court.
According to him, Crime No.384/2011 pertaining to S.C.1213/2014 was between the same parties. The said case was pending trial before the Sessions Court, Kollam. He further stated that the scene of occurrence in this case and the above named case is one and the same. After conducting investigation, the Police filed Ext.P24 final report. On committal, the case was numbered as S.C. No.1213/2014. He also produced the copy of the wound certificates of A1 to A3 in the said case as Ext.P25 series.
23. On cross-examination, he stated that he was the respondent No.4 in Ext.D3 case filed by the accused. Ext.D3 was Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-18-:
filed by A3 and A6 against the State and PW1 seeking police protection. The writ petition was closed with a direction to investigate the crime registered against the petitioners therein for the offence punishable under Section 302 of IPC.
24. Learned counsel for the appellant Sri.P.Sanjay submitted the following points for consideration by this Court.
i. PWs.1 to 3 adduced evidence to show that PWs.1,2 and Sampath sustained injuries on 23.4.2011 at 3.45 pm. ii. Exts.P1 and P2 wound certificates would show that PWs.1 and 2 sustained injuries in the very same occurrence. PW5 the Casualty Medical Officer, Benziger Hospital adduced evidence in support of the fact that PWs.1 and 2 sustained injuries and they underwent treatment as inpatient at the very same hospital.
iii. PW9, the Doctor who conducted autopsy on the body of the deceased stated that the injured sustained 11 injuries and the cause of death was due to head injury. iv. It has come out in evidence that the death of Sampath is homicidal in nature. It is undisputed.
v. Merely because Pws.1 to 3 are related to the deceased, the court below went wrong in discarding their evidence, [(Duli Chand v. State of Haryana and another [1999 KHC 1552] and Gangadhar Behera and others v. State of Orissa[(2002)8 SCC 381].
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-19-:
vi. The difference in number of beats given by the second accused to Sampath in the FI statement and in the evidence during trial is not a proper ground to declare those witnesses as tutored.
vii. All the accused were armed with deadly weapons. viii. PW9 stated before court that all the injuries to Sampath happened by Mos.1 to 4 which were brought by the accused for committing the crime.
ix. PW2 stated that when he reached the spot, he found Sampath lying unconscious and Pws1 and 2 there with injuries.
x.The court below appreciated minor contradictions, inconsistencies, exaggerations and embellishments erroneously.
25. The learned counsel for the appellant in Crl.A.594/2015 submitted the following decisions in support of the above points.
1.Gangadhar Behera and others v. State of Orissa [(2002)8 SCC 381],
2.State of Punjab v. Karnail Singh [(2003)11 SCC 271],
3.Dharnidhar v. State of U.P and others [(2010)7 SCC 759],
4. K.G.Raveendran v. State of Kerala [2012 SCC OnLine Ker 15499],
5. Rajan v. State of Kerala [2018 SCC OnLine Ker 20313] and
6.Juman and another v. State of Bihar [(2017)11 SCC 85]
26. In support of the defence, the accused examined DWs.1 and 2. DW.1 was the Assistant Superintendent of District Jail, Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-20-:
Kollam. He stated that on 27.4.2011, the third accused - Mennecious @ Binoy was admitted in the jail as UT 670. According to him on 28.4.2011, as per the Jailor's report, while he was undergoing treatment at the District Hospital, Kollam, he was referred to the Medical College Hospital, Thiruvanathapuram for better management on 30.4.2011. According to him, he underwent treatment in the Medical College Hospital till 2.5.2011. He brought the original of the Jailor's report and marked Ext.D4 copy of the same. He also identified Ext.D5 Discharge card issued to the third accused-Mennecious. As per Ext.D5, the patient was admitted on 30.4.2011 and discharged on 2.5.2011.
27. To prove that there was an earlier case between the parties, DW2, the S.H.O of Sakthikulangara Police Station was examined. On a perusal of Ext.D6, DW2 stated that PW1 Albert, his son Sampath and one of their close relatives were arrayed as accused in Crime No.330/98 of Sakthikulangara Police Station for the offences punishable under Sections 447,323,326 read with 34 of IPC. Ext.D7 is the FIR in CrimeNo.330/98. As per Ext.D7, Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-21-:
according to DW2, the time of occurrence is on 30.12.1998 at 10 pm.
28. On a perusal of the entire evidence, it is clear that the long pending civil litigations between the parties were instrumental in committing the above crime.
29. When PW14 was examined before this Court, he stated that he had conducted inquest as per Ext.P3. PWs.1 and 2 stated that they were taken to the Benziger Hospital, Kollam for treatment. The deceased Sampath was also taken to the very same hospital for treatment and he passed away there. However, PW6- one of the witnesses in Ext.P3 inquest report stated that the inquest was conducted at Sanker's Hospital, Kollam. The circumstances warranting to conduct the inquest at the Sanker's Hospital, Kollam was explained by PW6 when he was examined in chief before the Sessions Court. According to him, no mortuary was attached to the Benziger Hospital, Kollam and hence, the deadbody was taken to the Sanker's Hospital, Kollam and conducted the inquest as per Ext.P3. On a perusal of Ext.P3, we find that the deposition of PW6 Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-22-:
is incorrect. Column No.3 in Ext.P3 is with reference to by whom first found dead when and where. The answer is that on 23.4.2011 at about 4.30 p.m., the dead body was seen by PW14 as identified by Prasad, 44 years, residing at Sarasadanam, Meenath Cheriyil, Sakthikulangara Village at Benziger Hospital, Kollam. It is the case of the prosecution that Sampath was taken to the Benziger Hospital, Kollam for treatment immediately after the occurrence. The Doctor, who attended Sampath at the hospital, declared him as brought dead. As per Ext.P3, PW14 conducted inquest at the Benziger Hospital. There is no evidence adduced by the prosecution to show the circumstances under which the deadbody was shifted to the Sanker's Hospital, Kollam for conducting the postmortem examination. The details of the person, who had given such an instruction to the hospital authorities at Benziger Hospital, Kollam to shift the dead body to Sanker's Hospital, Kollam had not been proved before the trial court.
30. PW1 Albert Fernandez was examined by the Casualty Medical Officer of the Benziger Hospital at 4.45 p.m. Ext.P2 Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-23-:
wound certificate dated 17.3.2012 would show that he was admitted as an inpatient No.1112/01442 on the same date. Similarly, PW2 was also taken to the same hospital on 23.4.2011 at 4.45 pm. She was admitted as an inpatient on the same day as IP.No.0309/16932. Evidencing the same, Ext.P1 certificate dated 26.4.2011 was issued.
31. Exts.P1 and P2 are Accident Register-cum-Wound Certificates issued by the Doctor attached to the Bishop Benziger Hospital, Kollam. Kerala Medico Legal Code prescribes the procedures to be followed in the conduct of each and every medico legal examinations. As per the Code, Accident Register cum Wound Certificate in a book form with Original (perforated to make detachable) for issuing to the Police/Judicial authorities, duplicate (perforated to make detachable) for issuing to the injured person or to person nominated by the injured person and triplicate to be retained as Office copy. As per the Code, the Doctor working in any institution and who attends the injured person first, should write the wound certificate, at the time he examines the person. Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-24-:
The duplicate copy should be issued to the injured person or to those authorized by him or to those, who are lawfully entitled to receive on his behalf up on a written requisition for the same. In Medico Legal Cases, Police intimation should be given immediately after recording the wound certificate. Treatment/discharge certificate is issued in continuation to Wound Certificate. In the case on hand, no discharge certificate was produced by the prosecution. Going by Exts.P1 and P2, there is nothing on record to show that the same were issued as original to the Police Authorities. It is also not clear as to whether Exts.P1 and P2 were issued to PWs.1 and 2 as per their request. Ext.P1 was issued on 26.4.2011 whereas Ext.P2 was issued on 17.3.2012. In Exts.P1 and P2, serial numbers are absent.
32. As per Ext.P2, PW1 was an inpatient at the Benziger Hospital, Kollam since 23.4.2011. His discharge certificate was not produced by the prosecution. PW1 is a witness to Ext.P4 mahazar prepared by PW14 on 24.4.2011 at 12.30 hrs. PW14 stated in black and white that PW1, who is none other than the Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-25-:
father of the deceased Sampath, pointed out the place of occurrence to him. PW14 further stated in Ext.P4 that at the time of preparing Ext.P4, PW1, who sustained injuries in the very same occurrence, was present. Under the above circumstances, it is the duty of the prosecution to produce discharge certificate from the competent authority.
33. Learned counsel for the appellant in Crl.A(V) No.594/2015, during the course of his argument, submitted that in respect of the same incident, the first accused has also launched Ext.D1 FIS against PW1 and deceased Sampath, which is registered as Crime No.384/2011 for the offence punishable under Section 324 read with Section 34 of IPC by Ext.D2 FIR.
34. In Ext.P24 copy of the final report in Crime No.384/2011, PWs.1 and 2 and deceased Sampath were accused for the offences punishable under Section 324 read with 34 of IPC. In the said case, Ext.D1 First Information Statement was laid by Sri.Joshi Menecious, who is the first accused in Crime No.384/2011. Consequently, the Police registered Ext.D2 FIR for the aforesaid offences. The occurrence date was on 23.4.2011 at 15.45 hours. Ext.P25 series are wound certificates issued to the injured Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-26-:
pertaining to the said case.
35. It is contended by the learned counsel that they are innocent in this case and not involved in committing the offences alleged against them. As there was a case and counter case, as stated earlier, it is argued that the court was bound to ascertain, who was the aggressor, which could be done based on the evidence on record. PW15 in his evidence stated that the occurrence place in this case and the counter case is one and the same. The counter case was tried as S.C.No.1213/2014. The accused were acquitted in the said counter case. The date and time of occurrence as per Ext.D2 and as per Ext.P10 are one and the same.
36. On an anxious consideration of the evidence on record and the broad probabilities of both the cases, we are of the view that the prosecution has not placed before the court a true picture of the incident. The defense of the accused appears to be substantially true and probable and that in any event, the accused should be given the benefit of doubt. We are satisfied that on the prosecution evidence itself, a counter case was registered by the Police against Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-27-:
PW2 and others including deceased Sampath, in respect of an occurrence on 23.4.2011 at 15.45 hours as per Ext.D2. Intimation was received at the police station on 25.4.2011 at 11.30 hours. On the other hand, Ext.P10 FIR would show that the occurrence in this case was on 23.4.2011 at 15.45 hours and the intimation was received at the Police Station on 23.4.2011 at 9 hours. Before we proceed further, it may be relevant to point out that the learned Sessions Judge in several portions of his judgment has disbelieved the prosecution case mainly for the reason that the material objects produced before the court are broken pieces. Even though the accused squarely raised the plea of counter case and had also cross- examined the witnesses making suggestions about the version of the accused and how the fatal injury was caused to the accused, the learned Sessions Judge in his judgment has not discussed the above aspects in detail. It is a fact that the counter case ended in an acquittal. No appeal was preferred by the State or the de facto complainant therein challenging the acquittal. Hence, the acquittal in the counter case has become final.
Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-28-:
37. Regarding the facts of the case as we observed earlier, the prosecution has not given true picture of the occurrence. Serious discrepancies have been brought out when PW14 conducted the inquest on the body of the deceased Sampath. When cross- examined, PW14 admitted that he did not examine the case records of the Benziger Hospital, Kollam in respect of the injury sustained to PW1 and the circumstances warranting the deceased to be taken to the Sanker's Hospital, Kollam for conducting postmortem examination.
38. Unless and until positive evidence is adduced to show that the accused in this case are the aggressors, it may not be able for this Court to arrive at a probable conclusion that the accused are really the aggressors. When the plea of right of self-defense is taken, it is the duty of the prosecution to establish its case beyond reasonable doubt. It is often said, the law does not require a citizen to behave like a rank coward on any occasion and if he is attacked with dangerous weapons, he would be perfectly justified in the eye of law if he holds his ground and delivers a counter attack, Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-29-:
although in doing so, he may inflict an injury which may prove to be fatal.
39. Thus we are of the view that the accused, who sustained injuries in the very same occurrence at the hands of PW2 and others are legally entitled to set up their defence that they have been acting in exercise of their right of self-defence.
40. It is true that under Section 105 of the Evidence Act, the burden is on the accused to prove the existence of circumstances bringing the case within Section 100 of the Indian Penal Code is upon the accused. However, the accused are entitled to claim the benefit of every reasonable doubt when the accused offers a reasonable excuse on their conduct even though they cannot prove their assertions of self-defense. We are of the further view that when the prosecution has not come forward with the true versions, but has suppressed a material and integral portion of the incident, giving rise to a plausible plea of self-defense, the accused are certainly entitled to get the benefit of doubt. The injury sustained to the accused was not properly explained by the prosecution in this case.
41. In Umedbhai Jadavbhai v. The State of Gujarat Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-30-:
[(1978)1 SCC 228], in paragraph 6 of the judgment, the Apex Court observed thus:-
"In an appeal against acquittal, the High Court would not ordinarily interfere with the trial court's conclusion unless' there are compelling reasons to do so,inter alia, on account of manifest errors of law or of fact resulting in miscarriage of justice. We are satisfied in this case that the High Court was justified in intervening in the matter for the reasons to follow."
42. In K.Gopal Reddy v. State of Andhra Pradesh [(1979)1 SCC 355], the Apex Court observed as follows:-
"............It stems out of the fundamental principle, of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason".
43. In Tota Singh and another v. State of Punjab [(1987)2 Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-31-:
SCC 529], the Apex Court reiterated the very same principles in the following words:-
"..........This Court has repeatedly pointed out that the mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous."
44. In Madan Lal v. State of Jammu and Kashmir [(1997)7 SCC 677] , the Apex Court observed as under:
".....................that there must be "sufficient and compelling reasons" or "good and sufficiently cogent reasons" for the appellate court to alter an order of acquittal to one of conviction ............"
45. In Sambasivan and others v. State of Kerala [(1998)5 SCC 412], the Apex Court observed thus:
"The principles with regard to the scope of the powers of Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-32-:
the Appellate Court in an appeal against acquittal, are well- settled. The powers of the Appellate Court in an appeal against acquittal are no less than in an appeal against conviction. but where on the basis of evidence on record two views are reasonably possible the Appellate Court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the Appellate Court can interfere with the order of acquittal......"
46. In State of Karnataka v. K.Gopalakirshna [(2005) 9 SCC 291] while dealing with an appeal against acquittal, the Apex Court observed as follows:-
".....................In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal............."
47. Judged by the above standards, we are of the view that due and proper weight must be given to the trial court decision. This is especially true when credibility of the prosecution witnesses is at issue. The prosecution has suppressed the material facts in this case. Under the circumstances, it is not proper to rely on the Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-33-:
oral evidence of Pws.1 to 3 and convict the accused. We do not find substantial and compelling reasons to hold that the trial court was wrong. The trial court acquitted the accused both in this case and counter case. The trial court's conclusion with regard to the facts is not palpably wrong or patently illegal though the entire evidence is not discussed in detail. It is also difficult to hold that the trial court's judgment was manifestly unjust and unreasonable. On a re-appreciation of the evidence in this case, two reasonable views are possible- one that leads to acquittal, the other to conviction. In the circumstances, it is a settled position of law that the appellate court must rule in favour of the accused.
48. Bearing in mind the aforesaid principles of law laid down by various decisions of the Apex Court, we are of the further view that the findings of the trial court are not perverse. Therefore, interference in appeal is not possible where the other view is possible. In view of the aforesaid discussion, we do not find any compelling circumstance to interfere with the order of acquittal. Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-34-:
Resultantly, we find no merit in these appeals and the appeals are dismissed accordingly.
Sd/-
A.HARIPRASAD, JUDGE sd/-
N.ANIL KUMAR, JUDGE MBS/ Crl.A.(V) No.594/2015 & Crl.A.No.246/2017 :-35-: