Kerala High Court
T.J.Shaji vs Antony on 28 October, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940
Crl.Rev.Pet.No. 105 of 2005
AGAINST THE JUDGMENT IN SC 225/2001 of ADDL.SESSIONS COURT, NORTH PARAVUR
DATED 28-10-2004
REVISION PETITIONER(S)/DEFACTO COMPLAINANT(SON OF DECEASED):
T.J.SHAJI, S/O JOSEPH,
THANNIKAPPILLY HOUSE, MANJUMMEL P.O., UDYOGAMANDAL,
ERNAKULAM DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.P.M.RAFIQ
RESPONDENT(S)/ACCUSED AND STATE;:
1. ANTONY, S/O VARGHESE, VELASSERI,
MANJUMMAL, ELOOR.
2. SEBASTIAN, S/O.VARGHESE, VEMBILLY ROAD,
MANJUMMAL, ELOOR.
3. CLEATUS, S/O.VARUTHU, VELASSERY,
MANJUMMAL,ELOOR.
4. TITUS, S/O.JOSEPH, VELASSERY VEEDU,
MANJUMMAL, ELOOR.
5. BIJU, S/O.JOSEPH, VELASSERY VEEDU,
MADAPPATUBHAGAM, MANJUMMAL, ELOOR.
6. JEROME, S/O.JOSEPH, MADATHIPARAMBIL,
MANJUMMAL, ELOOR.
7. ANTONY, S/O.VARGHESE, MADATHIPARAMBU,
MANJUMMAL, ELOOR.
8. SAIMON, S/O.VARGHESE,
MADATHIPARAMBU, MANJUMMAL, ELOOR.
9. STEPHEN, S/O.VARGHESE,
MADATHIPARAMBIL, MANJUMMAL, ELOOR.
10. ANIL @ KUTTAN, S/O.SAHADEVAN,
MALIYIL, MANJUMMAL, ELOOR.
11. BACHAN, S/O.KURIAN,
AMBALATHUPARAMBIL, MANJUMMAL, ELOOR.
CRL.R.P.NO.105/2005 -2-
12. KUNCHAN @ ANOOP, S/O.SAHADEVAN,
MALIYIL, MANJUMMAL, ELOOR.
13. SUNIL, S/O.SANKARAN, MATHENAPARAMBU VEED
MANJUMMAL. ELOOR.
14. SAJU, S/O.OUSEPH, MANAVALA VEEDU,
MANJUMMAL, ELOOR.
15. VINOD, S/O.VELAYUDHAN, THANAPPILLY
VEEDU, MANJUMMAL, ELOOR.
16. SREEKUMAR, S/O.RAVI, X-60, F.A.C.T.
QUARTERS, MANJUMMAL.
17. STATE OF KERALA, REP. BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
R1 TO 10,R12 TO 14 BY ADV. SRI.A.MOHAMMED
R1 TO 10,R12 TO 14 BY ADV. SMT.SOUMINI JAMES
R11,R 15 AND R16 BY ADV. SRI.V.B.UNNIRAJ
R11,R15 BY ADV. SMT.R.S.GEETHA
R11,R15 BY ADV. SMT.P.ANITHA
BY ADV. SR PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-01-
2018,ALONG WITH CRL.APPEAL NO.769/12, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
A.M. SHAFFIQUE & P.SOMARAJAN, JJ.
==========================
Crl.R.P.No.105 of 2005
&
Crl.Appeal No. 769 of 2012
====================
Dated this, the 12th day of April, 2018
JUDGMENT
Shaffique, J.
Crl.R.P. has been filed by the defacto complainant, the son of the deceased challenging the acquittal of the accused in SC No.225/2001 of the Additional Sessions Court, North Paravur. The State has also preferred an appeal against the very same judgment by which the accused was acquitted as Crl.Appeal No.769/12. A petition to condone delay filed by the State happened to be allowed only on 14/6/2012 and thereafter the appeal was admitted on file.
2. The prosecution case was that there was a boundary dispute between the families of CW1 and accused Nos. 4 and 5. The accused 4, 5 and 10 along with the other accused formed themselves into an unlawful assembly and with a common intention of committing murder of Raju @ Shaji and his family members, came near the ground where certain entertainments were going on. Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:2:- This incident occurred on 18/5/1998 at 9.15 p.m. The accused came in a tempo van KEK 8186. All of them were armed with deadly weapons like swords, iron bars, wooden sticks etc. Prosecution alleges that the 5th accused hit CW3 Jaison @ Sebastian on his face with an iron rod. The first accused hit Johnson with an iron steel rod on his head. When accused 4 and 6 approached Shaji with swords, he ran away from the ground towards his house. All the 16 accused chased him and trespassed into the courtyard of the house of Shaji. They could not get Shaji. So they damaged the bullet motorcycle kept in the courtyard. Joseph, father of Shaji came out of the house and tried to prevent the accused from damaging the motor cycle. At the time the first accused inflicted a hit on the head of Joseph with an iron rod and 6th accused hit Joseph on his neck with an 'idikkatta'. On seeing the incident, Joseph's wife Victoria came to the rescue of her husband. She was pushed aside by the accused Jerome and it is alleged that Biju kicked her on her belly. Joseph ran away from the scene and accused Nos.1, 2, 6, 10 and 12 followed him. It is alleged that Joseph was assaulted with the weapons at a place on the eastern bank of Manjummel river. Joseph died on account of Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:3:- the injuries sustained by him.
3. The First Information Statement was given by PW1 Raju @ Shaji at 8 a.m on 19/5/1998. His statement was recorded by Sub Inspector of Police and Crime No.31/1998 was registered. Investigation was undertaken by the Circle Inspector of Police. He conducted inquest of the body. The dress found on the dead body and other material objects were collected from the scene of occurrence. The body was sent for postmortem examination. The District Police Surgeon conducted postmortem and opined that the cause of death was due to the injury sustained by hitting with weapons. The accused were arrested and as per their disclosure statement, material objects were recovered and final report was filed before the Judicial Magistrate of First Class, North Paravur. After completing the committal formalities, the matter was made over the Sessions Court Ernakulam. PWs 1 to 26 were examined and Exts.P1 to P22(a) and (b) were marked. Material objects produced and proved were MOs 1 to 11. Two witnesses were examined on behalf of the defence and they have marked Exts.D1 to D8 of which Exts.D1 to D5 are portions of the case diary statements of prosecution witnesses.
Crl.R.P.No.105 of 2005& Crl.Appeal No. 769 of 2012 -:4:-
4. The learned Public Prosecutor on behalf of the appellant argued that there was sufficient evidence to prove the guilt of the accused and Court below had erroneously acquitted them without considering any evidence in the proper perspective. Same contention is also urged on behalf of the counsel appearing for the revision petitioner.
5. Before proceeding further, it would be useful to understand the manner in which the accused were acquitted by the trial court. After evaluating the evidence adduced on either side, the court below found that though all the accused especially accused 1 to 6 were known to the witnesses, PWs 2, 3 and 4 did not mention to the Doctor as to who were the assailants. They had only stated that injury was caused by persons whom they could identify. It is further found that PW9 an independent witness did not support the prosecution case and hence it has to be held that the prosecution has failed to prove the case against the accused of having assaulted PWs2 to 4. With reference to the incident that had occurred in the courtyard of the deceased, court below found that there was no evidence to prove that the motor cycle was damaged in any manner and that apart, PW1 has not Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:5:- stated anything about an incident that occurred on the previous day in the FI statement Ext.P1. Court below also found that the cause of death of Joseph was injury No.24 which is alleged to have been inflicted by the 6th accused and PW1 did not depose that he saw Joseph being hit by 6th accused with an idikkatta on his neck. That apart, though specific overt acts were attributed to accused 4, 5, 6, 7 ad 10, none of the prosecution witnesses had deposed regarding the incident that took place at the bank of Manjummel river. PW2 alone have deposed to have seen Joseph being hit by neck by Jerome which by itself is not sufficient to hold that Jerome (A6) had committed the overt act. PW21 Doctor had deposed that if a person suffers injury as stated in injury No.24, he would have fell unconscious and would have died instantaneously whereas evidence of PWs 1 and 2 indicates that after being attacked, Joseph ran towards north. Court below therefore held that there was no evidence to show as to how Joseph sustained injury No.24. It is further observed that PW1 reported that his father was missing the next day morning. But, he did not state anything regarding the incident that took place on the previous day. Sub Inspector of Police, PW24 had recorded the FI statement Ext.P1 on Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:6:- 19/5/1998 at 8 am. The FIS reached the learned Magistrate only on 20/5/1998. Court below held that there was no explanation for the delay of more than 24 hours in sending the FIR to court. The explanation offered that it was entrusted to a Constable and he delivered it only next day morning was not satisfactory. None of the prosecution witnesses have supported the recovery of material objects alleged to have been used by the accused. Court below also held that evidence of DWs 1 and 2 proves that the accused also sustained injuries which were serious in nature. Exts.D6 and D7 are the wound certificates which would show that the injuries were very serious and no attempt had been made to explain those injuries. Death of Joseph was on account of the injury sustained by him on his neck. But there is no evidence regarding infliction of injury by any of accused persons. The court below therefore found that accused has to be given the benefit of doubt.
6. In order to overturn the finding regarding absence of guilt by the trial court whereby the trial court had given the benefit of doubt to accused, while considering an appeal and a revision filed by the defacto complainant, necessarily, this Court Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:7:- has to keep in mind that only in exceptional circumstances, an order of acquittal may be set aside. Jurisdiction can be exercised either at the instance of private parties or when the State had preferred the appeal when there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice to the victim. In Ashok Rai v. State of U.P. [(2014) 5 SCC 713, the Apex Court held that in an appeal against acquittal, the appellate court has to be very cautious while reversing the order of acquittal since the order of acquittal strengthens the presumption of innocence of the accused. If the view taken by the trial court is a reasonably possible view, it should not be disturbed simply because the appellate court feels that some other view is possible. Only if the judgment of the trial court is perverse with gross errors of facts and law, it has to be set aside to prevent miscarriage of justice. The reason behind is that the court has to give due weight to the presumption of innocence of the accused and see that an innocent person is not convicted whereas it is equally the duty of the Court to see that the guilty do not escape punishment. In Kanhaiya Lal v. State of Rajasthan [(2013) 5 SCC 655], the Apex Court held that the preponderance of judicial Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:8:- opinion is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal, the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified and if the view adopted by the Trial Court is a reasonable one and the conclusion reached are based on materials on record, the acquittal may not be interfered with.
7. In the case on hand, the arguments on behalf of the Public Prosecutor and the revision petitioner is based on the oral testimony of PW1 and 2. Ext.P1 is recorded at 8 a.m on 19/5/1998 and as per the endorsement, it has reached the learned Magistrate at 10.30 am on 20/5/1998. Ext.P1(a) is the FIR which indicates the aforesaid endorsement. FI statement was given by PW1. It is stated that he is giving the statement with reference to the murder of his father Joseph by Antony and others. The assailants have also inflicted injury on his mother, brother Jaison and father's brother Johnson. According to him, at 8 p.m, when he came back from work and proceeded from his house for the annual day function in connection with a nearby Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:9:- club viz., Roopakala Arts Club, along with him, his elder brother Stephen, younger brother Jaison Nickson and father's brother Johnson were also there. While they were watching the entertainment programmes, at about 9.00 p.m, the aforesaid Antony, Sebastian, Cleetus, Titus, Biju @ Pius, Jerome, Antony, his brothers Simon, Stephen Kuttan, Bechan, Kunjan, Sunil and three other persons whom he could identify came in a tempo van bearing Regn.No.KEK 8186. Most of them had weapons like sword, iron rod, chopper etc. On seeing them, his friend Unni asked them not to create any problem. At that time Biju informed him that they have a previous enmity with them and they have come to have a fight with them. Biju inflicted a blow with the iron rod on Jaison's face and he started bleeding. At that time, Antony inflicted a blow with an iron rod in the head of Johnson. He also started bleeding. Jerome and Titus came towards PW1. Immediately PW1 and his brother ran towards North. PW1 went to his house and his brother went to his uncle's house. At that time, only his father, mother and grand mother were there in the house. When he reached the house, all of them came in the tempo and parked their vehicle on the eastern side. They all came Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:10:- to the courtyard. On seeing them, PW1 went out and hid among the plantain garden on the northern side of the house. They came and immediately started damaging the motorcycle. The headlight and brake light were broken. On hearing the noise, his father came out to the courtyard. At that time, Antony inflicted a blow with an iron rod on the head of his father. On seeing this, mother came and pleaded them not to attack him. Somebody pushed mother aside and after getting the beating, father ran towards north. Behind him ran Sebastian, Antony and Jerome along with their weapons. Mother ran towards the house of uncle. PW1 saw this incident while hiding among the plantain. At that time, Titus saw PW1 and called on the others. On hearing this, PW1 ran towards south to his uncle's house. He informed his uncle about the incident. After midnight, all of them went in search of their father. He was not seen. They thought that his father would have escaped. In the morning also, they could not locate his father. The matter was informed to the police. A Constable came to enquire. The police officer saw father lying dead near the river. He further stated that his family members and the members of Velassery family were having disputes for more than three years. Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:11:- He also mentioned that on the previous day, there was an issue between Jaison and Kuttan. While being examined as PW1, he reiterated the aforesaid facts and stated that when the gang was damaging the motorcycle, his father came out and immediately Antony (first accused) inflicted a blow on the head of his father with an iron rod. When Jerome hit him, mother interfered. Mother was pushed aside. Father ran towards north and behind him ran Antony, Sebastian, Cleetus, Titus, Jerome, Madathiparambil Antony etc. He further deposed that when he had given a man missing case, police came to the site and located the dead body of his father. Thereafter he had given Ext.P1 statement. One of the main reasons for the court below to have acquitted the accused is the absence of explanation as to how injury No.24 was caused to the deceased. Apparently, after PW1's father ran towards north, and some of the assailants ran behind him, his father was not seen. PW1 along with his relatives had conducted a search during night. His father's body was found out only by the police the next day morning. What happened to his father after he ran away is not known. His body was found with several injuries of which the fatal injury was injury No.24. In PW1's Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012 -:12:- evidence, it is stated that Antony had inflicted a blow on his father with an iron rod on his head and Jerome had hit him. No one has seen the overt act of any person inflicting injury No.24 on the deceased. Court below observed that PW1 had not stated in Ext.P1 statement that Jerome had hit his father. PW1 deposed that he had not seen his father being hit by Jerome. In his evidence, he further states that the distance between the river and his house was only 15 ft. If his father was running towards back of the house, he would have searched near the river also. Ext.D1 is a contradiction with reference to a statement given by PW1 on 23/6/1998. The statement was that b