Kerala High Court
Biju vs P.K. Ayyappan on 19 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.1026/2012
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2025:KER:43956
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.REV.PET NO. 1026 OF 2012
AGAINST THE JUDGMENT DATED 16.03.2012 IN Crl.A
NO.371 OF 2010 OF ADDITIONAL DISTRICT AND SESSIONS COURT
(ADHOC-III),NORTH PARAVUR ARISING OUT OF THE JUDGMENT
DATED 16.6.2010 IN CC NO.1160 OF 2005 OF JUDICIAL
MAGISTRATE OF FIRST CLASS I ,PERUMBAVOOR
REVISION PETITIONER/APPELLANT/ACCUSED NO.1:
BIJU, S/O. VAREETH, ACHANDI VEEDU, BLOCK NO.14,
F.DIVISION, KALADY PLANTATION, KALLALA KARA,
AYYAMPUZHA VILLAGE. PIN-682026.
BY ADVS. SRI.P.VIJAYA BHANU (SR.)
SRI.V.C.SARATH
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 P.K. AYYAPPAN, S/O. KANNAN, PADATHY HOUSE, BLOCK
NO.14, F. DIVISION, KALADY PLANTATION, KALLALA
KARA, AYYAMPUZHA VILLAGE.
2 STATE OF KERALA, REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
BY ADVS. SRI.ANANDAN PILLAI
SRI.P.A.CHANDRAN
SRI.E.C.BINEESH-SR.PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 19.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.1026/2012
2
2025:KER:43956
"CR"
ORDER
The revision petitioner, who was the 1 st accused in C.C.No.1160 of 2005 on the files of the Judicial First Class Magistrate Court, Perumbavoor (for short, 'the trial court'), challenges his conviction and sentence under Sections 323,324 and 326 of the IPC.
2. The above calendar case arose from a private complaint preferred by the 1st respondent herein before the trial court against the petitioner and four others. The incident pertaining to the private complaint took place on 4.2.1988 at 6.30 p.m. in front of the courtyard of the building where the complainant and the accused were residing. Initially the Ayyampuzha police registered crime in respect of the said incident against five persons including the petitioner herein alleging offences punishable under Sections 323, 324, 326 and 307 read with Section 34 I.P.C. After investigation, final report was filed against three persons, the petitioner herein and two others for the offences under Sections 323, 324, 326 and 307 read with Section 34 I.P.C. Later on the trial court took cognizance of the offences under Sections 323, 324 and 326 read with Section 34 I.P.C and numbered the case as C.C.No. Crl.R.P.No.1026/2012 3 2025:KER:43956 1161/05.
3. The 1st respondent also preferred a private complaint in respect of the very same incident before the trial court against the petitioners and four others against whom the police initially registered the FIR alleging the offences punishable under Sections 323, 324, 326 and 307 read with Section 34 I.P.C. The allegations in the private complaint against the petitioner/1 st accused and the remaining four accused are as follows:
The complainant is residing with his family, consisting of his wife and four children in the labour line F division, 4th block, Kallala estate. The line building has eight rooms. The complainant is occupying the room at the extreme north. The accused and the members of his family are residing in the extreme south room. The intervening rooms are lying vacant. For access to the room which the complainant has occupied, he has to pass through the front side of the room in which the accused are residing. On 4.2.1988 at 6.30 p.m., while the complainant was passing through the front courtyard of the building, the accused 1 to 3 suddenly came Crl.R.P.No.1026/2012 4 2025:KER:43956 from behind the 4th room, which they were occupying and saying that he would not be spared, the first accused struck him with a stick on the front side of his head. The accused 2 and 3, in the meantime, kicked repeatedly, causing him to fall. While he was trying to get up, the 2nd accused got the stick from the 1 st accused and struck him again on his head. He screamed aloud, hearing which his wife rushed to his rescue, which enraged the 2nd accused, and he struck her repeatedly on her right hand, causing a bone fracture and also kicked her in different parts of her body. The other accused also fisted and kicked him. The 4th accused caught hold of her hair and kicked her. Hearing the cry of the complainant and his wife, those who were working nearby rushed to the spot, seeing which the accused left the place.
4. After recording the sworn statement of the complainant and the witnesses, the trial court took cognizance of the aforesaid offences against the accused Nos. 1 to 5, and the case was taken to file as C.P. No. 3/2003. Since the offence punishable under Section 307 I.P.C was triable exclusively by the Court of Sessions, the case was committed to the Court of Crl.R.P.No.1026/2012 5 2025:KER:43956 Sessions, Ernakulam in compliance with all legal requirements where the case was taken as S.C. No. 384/2003 and was later made over to the Additional Sessions Court (Ad hoc-II), Ernakulam for trial.
5. The accused entered appearance pursuant to the summons issued from that Court. After hearing both sides and perusing the final report and the connected records, the learned Sessions Judge found that there was no reason to presume that the accused had committed the offence punishable under Section 307 I.P.C. The case was then transferred to the learned Chief Judicial Magistrate, Ernakulam, as provided under Section 228(1)(a) Cr.P.C., from where it was made over to the trial court. The trial court took the case on file as C.C. No.1160/2005 under Sections 323, 324 and 326 read with Section 34 I.P.C.
6. On the appearance of the accused, the trial court recorded the evidence of the complainant as provided under Section 244 Cr.P.C., after complying with the requirements under Section 207 Cr.P.C. During that stage, PW1 to PW3 were examined in chief; their cross-examination was deferred. After going through the evidence adduced as above, the trial court Crl.R.P.No.1026/2012 6 2025:KER:43956 framed charge for the offences under Sections 323, 324 and 326 read with Section 34 of I.P.C., as provided under Section 246(1) Cr.P.C. The charge was read over and explained to them. They pleaded not guilty.
7. On the request of the defence. PW1 to PW3 were recalled and cross-examined, and then PW4 and PW5 were examined, and Exhibits P1 to P8 were marked. When evidence for the complainant was over, the accused were examined under Section 313 (1)(b) Cr. P.C. They denied all the circumstances that appeared in evidence against them. No defence evidence was adduced.
8. After evaluation of the oral and documentary evidence as above, the trial court found the 1 st accused guilty of the offences punishable under Sections 323, 324 and 326 of I.P.C., and convicted him thereunder. He was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for two months for the offence punishable under Section 326 IPC. No separate sentence was awarded for the other offences. The accused 2 to 5 were found not guilty of all the offences charged against them, and they were acquitted of the said offences as Crl.R.P.No.1026/2012 7 2025:KER:43956 provided under Section 248(1) Cr. P.C. The petitioner herein preferred an appeal as Crl. Appeal No. 371/2010 at the Court of the Additional District and Sessions Judge (Adhoc III), North Paravur (for short, the appellate court), which confirmed the judgment of the trial court vide judgment dated 16.03.2012. Being aggrieved by the findings of conviction and sentence as above, the 1st accused has filed this revision.
9. I have heard Smt.Nanditha S., the learned counsel for the revision petitioner, Sri.Anandan Pillai, the learned counsel for the 1st respondent and Sri.E.C.Bineesh, the learned Senior Public Prosecutor.
10. The learned counsel appearing for the petitioner impeached the finding of the trial court as well as the appellate court on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that there was a total violation of Section 210 of Cr.P.C., inasmuch as the trial court failed to club the police case as well as the complaint case, both arising out of same incident, and try them together as contemplated under sub section (2) of Section 210 of Cr.P.C. According to the counsel, non-compliance of the said provision has caused prejudice to the petitioner. The learned counsel Crl.R.P.No.1026/2012 8 2025:KER:43956 further submitted that the conviction was based solely on the interested testimony of PW1, that too, contradictory in nature, even according to the findings of the trial court. The learned counsel further submitted that non recovery of the material objects used for the commission of offence is fatal to the case considering the facts and circumstances involved. The learned counsel also stated that there was an undue delay of 383 days in filing the private complaint, which has not been satisfactorily explained. On the other hand, the learned counsel for the 1 st respondent as well as the learned Public Prosecutor supported the findings and verdict handed down by the trial court and the appellate court and argued that necessary ingredients of Section 326 of IPC had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. It was further submitted that re-appreciation of evidence is impermissible.
11. I will first deal with the challenge on the ground of non compliance with Section 210 of Cr.P.C. Section 210 of the Cr.P.C (Section 233 of BNSS) outlines the procedure to be followed when there is a complaint case and a police investigation in respect of the same offence. This procedure ensures that both processes do not run in parallel, avoiding Crl.R.P.No.1026/2012 9 2025:KER:43956 duplication and potential conflicting decisions. It also obviates anomalies which might arise from taking cognizance of the same offence more than once. The Section reads thus:
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3)If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
12. As per the provisions extracted above, when in a case instituted otherwise than on a police report, i.e in a Crl.R.P.No.1026/2012 10 2025:KER:43956 complaint case, during the inquiry or trial held by the Magistrate, it appears to the Magistrate that the investigation by the police is in progress concerning the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It further provides that, if a report is made by the investigating police officer under Section 173 of Cr.P.C (Section 193 of BNSS) and on such report cognizance of any offence is taken by the Magistrate against "any person who is an accused in the complaint case", the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. It also provides that if the police report does not relate to "any accused" in the complaint case or if the Magistrate does not take cognizance of "any offence" on the police report, he shall proceed with the inquiry or trial which was stayed by him, following the provisions of this Cr.P.C/BNSS. Thus, it is incumbent upon the Magistrate under Section 210(2) of Cr.P.C (Section 233(2) of BNSS) to try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police Crl.R.P.No.1026/2012 11 2025:KER:43956 report if a report is made by the investigating police officer under Section 173 of Cr.P.C (Section 193 of BNSS) and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case. To be more precise, if a police report has been submitted and a complaint has been filed in respect of the same offence, then, under sub-section (2) of Section 210 of the Cr.P.C., (Section 233 (2) of BNSS) the Magistrate is under an obligation to try both cases together. It is settled that, though the expression used in sub-section (1) of Section 210 of Cr.P.C (Section 233 (1) of BNSS) is "offence", the same has to be understood as the occurrence or transaction in which the offence has been committed and not the very same offence. (See. Joseph Freeman Motha (Dr.) & Another v. Sudha Vijayan & Another, 2020 (5) KHC 169).
13. Coming to the facts of the case, it is not in dispute that in respect of the very same incident/occurrence in the complaint case (which is the subject-matter of this revision petition), the police registered a case as Crime No.8/1998 and it was tried by the very same trial court as C.C.No.1161/2005. There were three accused in the said case, and all of them were Crl.R.P.No.1026/2012 12 2025:KER:43956 acquitted after trial. In the complaint case, there are two more accused, accused Nos. 2 and 5. In fact, in the initial crime registered by the police, all five accused were there. Section 307 of IPC was also incorporated. However, when the final report was filed, accused Nos. 2 and 5 in the complaint case were deleted from the party array and Section 307 of the IPC was omitted. Thus, the incident, the offences and the three accused in both cases are the same.
14. The learned counsel for the 1 st respondent submitted that since two or more accused are involved in the complaint case, the provisions of Section 210 of Cr.P.C (Section 233 of BNSS) are not attracted. I cannot subscribe to the said argument. One of the ingredients of sub-section (1) of Section 210 of Cr. P.C (Section 233 (1) of BNSS) is that incident/occurrence inquired into or tried by the Magistrate in the complaint case should also be under police investigation. Here, the incident in both cases is one and the same. The offences involved in both cases are under Sections 324 and 326, read with Section 34 of the IPC. Once the criteria laid down in sub-section (1) of Section 210 of Cr.P.C (Section 233 (1) of BNSS) is satisfied, then if the Magistrate takes Crl.R.P.No.1026/2012 13 2025:KER:43956 cognizance of "any offence" against "any person who is accused in the complaint case", based on the police report, it is the duty of the Magistrate under sub-section (2) to try the two cases together as if they were instituted on a police report. This would be satisfied even if cognizance of the offence is taken against only one of the persons accused in the complaint case. If both ingredients are satisfied, the procedure to be followed is as if both cases were instituted on a police report. In short, for clubbing the two cases for trial it is enough that congnizance is taken by the Magistrate of any offence against any accused in the complaint case in the report of the police who investigated the occurrence which led to the complaint case. It is not necessary that all the offences and all the accused in the complaint case and the police case should be the same. The ingredients of sub-section (3) are couched in the negative. The expression "the police report does not relate to any accused in the complaint case' used in sub-section (3) means that none of the accused in the complaint case is the subject-matter of the police report. Similarly, the expression "does not take cognizance of any offence on the police report" means that cognizance of no offence is taken. It is only when the conditions laid down in sub-section (3) are satisfied that the Crl.R.P.No.1026/2012 14 2025:KER:43956 two cases have to be tried according to the separate procedure laid down for each of them. Sub-section (3) also shows that as long as the police report relates to one of the accused mentioned in the complaint case and the Magistrate takes cognizance of an offence based on the police report, the case will fall under sub-section (2) and the procedure mentioned therein will have to be strictly followed.
15. Here, the offences involved in the complaint case and the police case are under Sections 324 and 326, read with Section 34 of the IPC. The incident in both cases is also one and the same. All three accused in the police case are also accused in the complaint case. Hence, Section 210 of Cr. P.C (Section 233 of BNSS) is squarely attracted, and the trial court ought to have tried the two cases together as if they were instituted on a police report as contemplated under sub-section (2). The provisions of Section 210 of Cr.P.C (Section 233 of BNSS) are mandatory. But the non compliance thereof would not ipso facto vitiate the conviction in view of the provisions of Section 465 of Cr.P.C (Section 511 of BNSS). However, if the non compliance with the provisions of Section 210 of Cr.P.C (Section 233 of BNSS) has caused prejudice to the accused and a failure Crl.R.P.No.1026/2012 15 2025:KER:43956 of justice has been occasioned thereby, the entire trial and conviction would be vitiated [see Dilawar Singh v. State of Delhi, (2008) 3 Supreme Court Cases (Cri) 330]. Taking into account the entire facts and circumstances of the case, it appears to me that serious prejudice has been caused to the petitioner, resulting in failure of justice on account of the failure on the part of the trial court to follow the procedure laid down in sub-section (2) of Section 210 of Cr.P.C (Section 233 (2) of BNSS)
16. To prove the incident and fix the culpability on the accused, the prosecution examined PW1 to PW5. PW1 is the defacto complainant/injured. PW2 is the wife of PW1 and another injured. PW3 is an independent occurrence witness. PW4 and PW5 are the doctors who examined PW1 and PW2. It has come out in evidence that all the accused and PW1 and PW2 are neighbours. The incident took place in front of the house of the accused persons. The overt act alleged, as per the testimony of PW1, is that the petitioner beat on his head with a wooden stick, attacked PW2 on her right hand, the accused No.3 stamped on her chest and the accused No.4 hit on the body of PW1 with a stone. PW2 deposed that on hearing the Crl.R.P.No.1026/2012 16 2025:KER:43956 cry of PW1, she came to the scene of the occurrence, and then the accused attacked her. It has come out in evidence that PW1 and PW2 have sustained injuries. It is evident from the evidence of PW4 and PW5 and Exts.P3 and P4. PW3, an independent witness, deposed that he reached the spot after ten minutes of the incident.
17. The trial court in the impugned judgment found that there was no chance for PW3 to witness the incident and therefore, his testimony was disbelieved. So far as the evidence of PW1 and PW2 was concerned, the trial court found that their testimony could not be believed in toto. There is a specific finding in paragraph 11 of the judgment that the sequence of the events narrated by PW1 and PW2 varies. In paragraph 12, there is a finding that there are material contradictions in the testimony of PW1, PW2 and PW3. The specific overt act alleged by PW1 that accused Nos. 2, 3 and 4 assaulted him on various parts of his body was also disbelieved by the trial court. However, the trial court found that there was no contradiction in the evidence of PW1 and PW2 regarding the fact that the 1st accused/petitioner struck PW1 on the right side of PW1's head. While arriving at such a finding, it was Crl.R.P.No.1026/2012 17 2025:KER:43956 observed that apart from this, the other facts deposed by PW1 and PW2 were considerably varying. Based on this finding alone, the trial court convicted the petitioner. The relevant portion of the said finding is reproduced for clarity: "So only consistent version coming from PW1 and PW2 is that A1 beat on the right side of the head of PW1. Regarding the other facts, there is considerable contradiction which cuts very root of the allegations against A2 to A5."
18. It is settled that a witness's evidence should be considered as a whole, not in isolated parts. When evaluating a witness's testimony, the court should look for the general tenor of the evidence and whether it appears truthful when considered as a whole. In other words, the court should assess the entire testimony of a witness, considering its overall consistency and coherence, rather than focusing on isolated statements. This approach helps in determining the witnesses' credibility and overall truthfulness of his/her account. What the trial court did was it relied on the isolated statement of PW1 and PW2 that the 1st accused hit on the head of PW1 with a weapon, totally discarding the remaining part of their testimony, which are mutually contradictory. Admittedly, there Crl.R.P.No.1026/2012 18 2025:KER:43956 existed long-standing feud between the petitioner and PW1 and PW2.
19. As already stated, initially, the police registered a case and counter case in respect of the same incident. The case registered by the police against the petitioner and others was tried by the trial court as C.C.No.1161/2005. The counter case was registered against PW1 and PW2, which was also tried by the trial court as C.C.No.1159/2005. Both cases ended in acquittal. The learned counsel for the petitioner made available a copy of the judgment in C.C.No.1161/2005. It shows that after a full-fledged trial, the accused therein, who are accused Nos.1, 3 and 4 in the complaint case, were acquitted. The incident and offences involved in the police case and the complaint case are the same. PW1 and PW2 in the police case are PW1 and PW2 in the complaint case. The evidence tendered by PW1 and PW2 in the police case was disbelieved. There is a specific finding in the judgment in C.C.No.1161/2005 that, going through the allegations and evidence adduced, there is considerable contradictions in the testimony of the witnesses and prosecution case. PW1 and PW2 gave contradictory versions in the trial in the police case and in the complaint case. Crl.R.P.No.1026/2012 19
2025:KER:43956 For all these reasons, I hold that PW1 and PW2 are not trustworthy, and their evidence that the petitioner struck on the head of PW1 could not have been relied on by the trial court to convict him.
20. There is yet another aspect. The weapon used for the commission of the offence has not been recovered. Indeed, mere non-recovery of the weapon used for the commission of the offence does not affect the case of the prosecution where clinching and direct evidence is available. However non-recovery of a weapon can be fatal to the prosecution case if the eyewitnesses examined by the prosecution were found to be not reliable or trustworthy.
21. It is true that the power of this Court in revision is severely restricted, and it cannot embark upon reappreciation of evidence. This Court is not supposed to reappreciate the evidence in revision. But this is not a case of reappreciation of evidence. This is a case where the trial court as well as the appellate court misread the evidence and totally failed to appreciate the evidence in the correct perspective. The powers vested with this Court under Section 397 read with Section 401 of Cr.P.C (Sections 438 and 442 of the BNSS) are Crl.R.P.No.1026/2012 20 2025:KER:43956 inherent in nature to correct the judgments of the trial court as well as the appellate court if it suffers from gross illegality. The findings in the judgment of the trial court as well as the appellate court, have been arrived at by ignoring the relevant materials and evidence on record. The entire approach of both the courts in dealing with the evidence and law on the point is patently wrong. Hence, I hold that this is a fit case where the powers vested with this Court under Section 397 read with Section 401 of Cr.P.C (Sections 438 and 442 of the BNSS). could be exercised.
In the result, this Crl.R.P is allowed. The judgments of conviction and sentence impugned are hereby set aside. The petitioner/1st accused is found not guilty of the offences charged against him and he is acquitted.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE AS/kp