Kerala High Court
State Of Kerala Rep. By vs Varghese @ Thampi on 7 December, 1999
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2013/8TH KARTHIKA, 1935
CRL.A.No. 516 of 2003
--------------------------
AGAINST THE ORDER/JUDGMENT IN SC 125/1998 of ASSISTANT SESSIOINS COURT,
PALA DATED 07-12-1999
APPELLANT:
------------------------
STATE OF KERALA REP. BY
THE PUBLIC PROSECUTOR.
BY GOVERNMENT PLEADER SRI.N.SURESH
RESPONDENTS:ACCUSED :
----------------------------------------
1. VARGHESE @ THAMPI, S/O. CHACKO,
NEDUMATTATHIL VEEDU,
KANJIRAMALA BHAGAM, PUTHUVELIKARA, VELIYANNOOR
VILLAGE,
(FORMERLY KALAPPURACKAL VEEDU,
INCHIYOORKARA, VARAPETTY VILLAGE)
2. KARUNAKARAN @ KUNJU,
S/O.APPACHAN, PARYANANICKAL VEEDU,
KIZHAKKUMBU KARA,
KOOTHATTUKULAM VILLAGE.
3. MOHANAN, S/O.AYYAPPAN,
CHAYANANCKAL VEEDU,
THOMPPARAMALA BHAGOM,
KIZHAKKUMBU KARA,
KOOTHATTUKULAM VILLAGE.
4. KUTTAYI @ KUNJUMON, S/O.KUNJAN,
CHAYANANCKAL VEEDU,
CHAMBA MALA BHAGOM,
KIZHAKKUMBU KARA,
KOOTHATTUKULAM VILLAGE.
5. SAJI, S/O.THANKAPPAN,
CHAYANANCKAL VEEDU,
CHAMBA MALA BHAGOM,
KIZHAKKUMBU KARA,
KOOTHATTUKULAM VILLAGE.
R1,3 & 5 BY ADV. SRI.MATHEW JOHN (K)
R1,3 & 5 BY ADV. SRI.AJEESH K.SASI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
------------------------------------------
Crl.A.No.516 of 2003
-------------------------------------------
Dated this the 30th day of October, 2013
JUDGMENT
The above appeal is directed, at the instance of the State, against the judgment dated 07/12/1999 in S.C.No.125 of 1998 of the court of the Assistant Sessions Judge, Pala since the trial court by the above impugned judgment acquitted the accused five in numbers, who faced the prosecution for the offences punishable under Sections 143, 147, 148, 341 & 307 read with Section 149 of IPC.
2. The prosecution case is that at about 9 p.m. on 19/11/1997 at the road near the house of one Arackaparambil Mammachan at Kanjiramala bhagam, Putuveli kara, the accused persons formed themselves into an unlawful assembly armed with deadly weapons and wrongfully restrained PW.1 and accused No.1 uttered to kill him and not to leave him alive and the accused persons with deadly weapons such as cycle chain, axes, hammer and iron rod caused hurt to PW.1 with the intention of killing him and thus according to the Crl.A.No.516 of 2003 :-2-:
prosecution the accused committed the above offences in promoting the common object due to enemity towards PW.1. On the basis of the above allegation Crime No.173 of 1997 was registered in the Ramapuram Police Station for the said offence and on completing the investigation the police preferred a report before the Judicial First Class Magistrate Court, Pala wherein C.P.No.7 of 1998 was instituted and by the order dated 01/09/1998 the learned Magistrate committed the case to the Sessions Court where S.C.No.125 of 1998 was instituted which eventually made over to the present trial court for trial and disposal. Thus when the accused appeared after hearing the prosecution and the defence a formal charge was framed against them for the offences punishable under Sections 143, 147, 148, 341 & 307 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 20 were examined and Exts.P1 to P8 were marked. Besides the above Mos.1 to 5 being the material objects identified and marked. Crl.A.No.516 of 2003
:-3-:
Finally the learned Judge of the trial court holding the view, that it will not be safe to act upon the testimony of PW.1 held that the prosecution against the accused is not free from reasonable doubt and accordingly the accused are found not guilty and consequently they are acquitted under Section 235 of Cr.P.C. It is the above finding and order of acquittal that are challenged by the State in this Appeal.
3. Heard Sri.N.Suresh, the learned Public Prosecutor for the State and Sri.Mathew John, the learned counsel appearing for respondents 1, 3 & 5, who are accused Nos.1, 3 & 5. It appears that the second respondent/second accused is no more and though notice is served on R4/the 4th accused, he did not chosen to resist the appeal either by himself or by engaging a counsel of his choice.
4. As I indicated earlier, according to the prosecution PW.1 was attacked by the accused, while he was going along with PW.2, to visit the house of PW.3, at about 9 P.M. on 19/11/1997, at the road near the house of one Arackaparambil Mammachan at Kanjiramala bhagam, and pursuant to the Crl.A.No.516 of 2003 :-4-:
attack of the accused, PW.1 sustained several injuries, who was removed to Government Hospital, Koothattukulam wherein PW.13 examined him and issued Ext.P3 certificate. According to the prosecution, on the advice of PW.13, PW.1 was referred to Devamatha Hospital, Koothattukulam where PW.14 again examined PW.1 and he issued Ext.P4 certificate. According to the prosecution, subsequently PW.1 was admitted in the Medical Mission Hospital at Kolenchery wherein he had undergone treatment under PW.15, who is a neuro surgeon attached to the above said hospital and he issued Ext.P5 discharge certificate. On getting information about the admission of PW.1 in Deva Matha Hospital, PW.20 Head Constable attached to Ramapuram Police Station went to the said hospital and recorded his statement namely the First Information Statement and thereafter on producing the same in the Station, PW.17 the ASI of Ramapuram Police Station registered Ext.P7 F.I.R. The further investigation was undertaken by PW.18 and the investigation continued by PW.19, and finally he laid the charge. When PW.1 was Crl.A.No.516 of 2003 :-5-:
examined, he had stated that, while himself and PW.2, who is one of the brothers of his father, were riding on a motor cycle to go to the house of PW.3 who is another brother of PW.1's father, at 9 p.m. on 19/11/1997 he was attacked in the road near to the house of one Arackaparambil Mamachan. According to PW.1 when they reached the spot the accused five in numbers, stood in front of the motor cycle and prevented them and among the assailants, accused No.1 is a police man and all of them were armed with MOs.2 to 5 axes, hammer, cycle chain and iron rod. PW.1 deposed before the court that at that time A1 uttered to kill him and A1 beat him with cycle chain and caused injury. According to him the other accused persons also beat him with iron rod, hammer, axes and caused injuries to him. According to PW.1, the accused attacked him with intention to kill him as they are suspecting that he was helping PW.3, connected with pathway dispute between A1 and PW.3. According to him, when the police approached him while he was undergoing treatment in the Deva Matha Hospital, he gave a statement to the police and Crl.A.No.516 of 2003 :-6-:
the said F.I. Statement is marked as Ext.P1.
5. To prove the incident besides PW.1, the prosecution has also examined PWs.2 to 8. Out of which PW.4, PW.6 and PW.8 were given up. Out of the remaining witnesses PWs.2 and 3 are the brothers of PW.1's father and PW.5 who claimed to be a chance witness. The trial court was not inclined to believe PWs.2 and 3 and to believe the version of PW.5. When the learned Public Prosecutor advanced his argument he fairly submitted he is also not stressing upon the evidence of those witnesses. I have carefully gone through the evidence of PWs.2, 3 & 5 who are the remaining witnesses and according to me, on evaluation of their evidences cannot be believed and acted upon, in view of the particular facts and circumstances involved in the case especially when they are enimical to the accused particularly against the first accused. Besides the above they are the close relatives of PW.1 and are highly interested witness as well. According to PW.5, he witnessed the incident when he was going to meet the brother of PW.1, connected with sale deal of an auto rickshaw. During Crl.A.No.516 of 2003 :-7-:
the cross-examination for A1 to A3, PW.5 has admitted that he knows PW.3 for the last 10 to 15 years and he was residing 4 to 5 kms. away from the place of occurrence. Through the cross-examination the defence has succeeded in bringing out certain contradictions and also improvements made by him in his deposition. PW.5 has also stated that he knows PW.1 as well for the last 10 to 15 years. So, PW.5 is a person who got close acquaintance with the prosecution witnesses and with the alleged sale deal was with the brother of PW.1, for which he claimed to have gone on the date of the alleged incident. No explanation is forthcoming from PW.5, why he chosen to meet the prospective vendor at 9'o clock, on the date of the alleged incident. So, according to me, at no stretch of imagination, PW.5 can be treated as a chance witness but he is deliberately brought by the prosecution showing him as an independent and chance witness in support of their case against the accused.
6. PW.7 is an attestor to Ext.P2 scene mahazar. PWs.9 to 12 are attestors to the seizure mahazar, namely, Ext.P8 Crl.A.No.516 of 2003 :-8-:
connected with the seizure of the material objects, but all these witnesses turned hostile to the prosecution. Pws.13 to 15 are the Doctors who examined PW.1 and who respectively issued Exts.P3 to P5 certificates and discharge certificate. PW.16 is the Village Officer through whom Ext.P6 site plan got prepared. These are the evidences and materials referred to by the learned Judge in support of his finding and acquitting the accused.
7. The learned Public Prosecutor vehemently submitted that even if the other witnesses cited and examined by the prosecution are not believable the learned Judge ought to have convicted the accused on the basis of the clinching evidence given by PW.5, who is none other than the injured. According to the learned Public Prosecutor the evidence of PW.1 is free of any doubt and infirmities and the contemporary documents like Ext.P5 and Ext.P7 F.I.R. and the wound certificate referred to above are sufficient materials which render corroboration for the evidence of PW.1. According to the learned Public Prosecutor the reason assigned by the learned Crl.A.No.516 of 2003 :-9-:
Judge to disbelieve the evidence of prosecution about the identity of the accused is unacceptable. It is pointed out that PW.1 the injured has got access to see his assailants since he was brutally attacked by them directly. It is also submitted by the learned Public Prosecutor that it is brought on evidence to the effect that there was sufficient light from the house of one Arackaparambil Mamachan whose house situating near to the place of occurrence about which mentioned in Ext.P2 scene mahazar. So, the learned Public Prosecutor concluded and submitted that the contemporary documents and the evidence of PW.1 and the Doctors show that on 19/11/1997 PW.1 sustained injuries at the hands of the accused and therefore even if the other evidences are not acceptable the trial court is not correct in acquitting the accused ignoring the above evidence of PW.1 and other evidences which are corroborating in nature.
8. Per contra Sri.Mathew John, the learned counsel appearing for respondents 1, 3 and 5 submitted that the reason assigned by the learned Judge in support of his finding Crl.A.No.516 of 2003 :-10-:
is based upon the evidences and materials on record and such a finding cannot be upset in an appeal against the acquittal, as the reasons assigned by the learned Judge in support of his findings are reasonable and possible and no interference is warranted.
9. I have carefully considered the submissions made by the learned Public Prosecutor as well as the learned counsel for the respondents and I have perused the evidences and materials on record and I have gone through the impugned judgment.
10. In the light of the rival contentions and the evidences and materials on record the question to be considered is whether the trial court is justified in its finding and acquitting the accused and the further question to be considered is whether the appellant has succeeded in making out any ground to interfere with the findings of the court below or to show that the impugned judgment is perverse or illegal. In the light of the arguments advanced by the learned Public Prosecutor, according to me, this Court need not consider the Crl.A.No.516 of 2003 :-11-:
evidences of PWs.2, 3 & 5 who are examined to prove the incident. As the learned Public Prosecutor advanced arguments on the basis of the evidences of PW.1 to canvass a conviction against the accused, according to me, this Court need to consider the evidences of PW.1 to find out whether the trial court is correct or any mistake committed by it in acquitting the accused.
11. At the out set it is to be noted that the case of the prosecution is that when PW.1 was going to meet his father's brother along with PW.2, the accused 5 in numbers at about 9 p.m. on 19/11/1997 at the place of occurrence attacked him and inflicted injuries. The prosecution has no case that the accused has got any prior information or they are anticipating arrival of PW.1 at the place of occurrence so as to reach at the place of occurrence with due preparation. In this case according to PW.1 and as per the prosecution, all the accused were holding dangerous weapons like iron rod, cycle chain, axes and hammer. If the case of the prosecution is to the effect that on seeing PW.1 all on a sudden, at the place of Crl.A.No.516 of 2003 :-12-:
occurrence at the relevant time and thus the accused attacked him, the same could have been considered to find out the probability of the prosecution case. But in the present case as I indicated earlier the accused came at the spot with preparation and with deadly weapons and attacked PW.1. In the absence of any evidence to show that the accused were beware of the factum of the arrival of PW.1 at the place of occurrence it cannot be believed for a moment that the accused stationed at the spot with weapons. So, the above fact itself makes the case of the prosecution unbelievable.
12. Another relevant fact is that even according to PW.1 except, accused Nos.4 and 5, with A1 to A3 he has got prior acquaintance and he had occasion to identify the accused on the basis of the light from the house of Arackalparambil Mamachan as well as from the motor cycle itself. But when he was taken before PW.13 the Doctor who firstly examined him and who issued Ext.P3 certificate, he failed to mention the names of at least accused Nos.1 to 3 whose name well within his knowledge as per his own claim. The learned Public Crl.A.No.516 of 2003 :-13-:
Prosecutor submitted that PW.13 has already stated that PW.1 was stating irrelevant fact. But no medical evidence is adduced by the prosecution to show that PW.1 was not in a position to make any effective statement or to remember the names of his aggressors. Strange enough to note that he had mentioned the names of all the accused before PW.20, when he recorded Ext.P1 statements of PW.1 within one hour from the time of the incident. So, the claim of PW.1 that he was attacked by A1 to A5 for the said reason cannot be believed.
13. It is brought on record to the effect that at the time of trial of the above case, he was facing the prosecution at the instance of his wife for the domestic violence and there is another criminal case in which the allegation is that he had trespassed into the house of one Leela and intimidated her. He had also admitted about another criminal case in which the allegation is that he trespassed into the house of one Kuriakose and attacked him. Besides the above he had also admitted that in USA, he had involved in a murder case connected with murder of one lady therein USA though he is acquitted in the Crl.A.No.516 of 2003 :-14-:
said case. So, the above character of PW.1 demand the court to insist for better evidence as well as corroboration of the evidence of PW.1 from independent source, particularly in view of the facts and circumstances involved in the present case.
14. It is also relevant to note that according to PW.1 he had identified the accused on the basis of the light coming from the house of the Arackalparambil Mamachan and on the basis of the head light of the motor cycle. It is quite relevant to note that the said Mamachan is neither cited nor examined as witness to show that there was light at the place at the relevant point of time. It is also relevant to note that no other person residing adjacent to the place of occurrence were also not examined. So, the evidence adduced by the prosecution through PW.1, to implicate the accused in the above crime cannot be believed especially when PW.1 is enemical to A1 and other accused. It is brought on record to the effect that there was a civil dispute between PW.3 the brother of PW.1's father one side and A1 on the other side. According to PW.1 the Crl.A.No.516 of 2003 :-15-:
motive suggested is that the accused were under the impression that it was he who assisting PW.3 in the civil dispute, pending between PW.3 and A1. It is also a fact beyond dispute that PW.1 has already made a complaint against A1. Thus it is crystal clear that there was serious animosity between the accused and the prosecution witness and the animosity is a double edged weapon therefore it was the bounden duty of the prosecution to prove the allegation against the accused, particularly against A1 beyond reasonable doubt by adducing cogent and satisfactory evidence. Due to the above defect in the evidence of PW.1 and the above backdrops of the case it cannot be said that the prosecution has succeeded in proving its case beyond reasonable doubt and the role of the accused in the alleged incident.
15. The Hon'ble Apex Court in a recent decision reported in Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88], has held as follows:-
"8. In a recent decision in Murugesan & Crl.A.No.516 of 2003 :-16-:
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:
............
"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', Crl.A.No.516 of 2003 :-17-:
'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are 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).
Thus, on examination of the facts and circumstances involved in the case, according to me, the reasons given by the learned Judge in support of his finding and acquitting the accused are quite reasonable and possible and it cannot be said that those Crl.A.No.516 of 2003 :-18-:
findings are perverse or unreasonable or illegal so as to interfere with the same while exercising the appellate jurisdiction of this Court. So, also the appellant has miserably failed to make out any compelling circumstances or substantial reason to interfere with the order of acquittal recorded by the court below in favour of the accused and to disturb the double presumption of innocence secured by the accused by the impugned judgment.
In the result, there is no merit in this appeal and accordingly the same is dismissed.
V.K.MOHANAN, JUDGE skj True copy P.A. to Judge