Kerala High Court
Unknown vs Devassy (Air 1962 Kerala 258) This Court on 9 February, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 9TH DAY OF FEBRUARY 2012/20TH MAGHA 1933
CRL.A.No. 1413 of 2003 ( )
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SC.NO.149/2003 of ADDITIONAL DISTRICT COURT (ADHOC-1), ERNAKULAM
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APPELLANT(S)/ACCUSED 1 TO 3
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1. MANOJ NARAYANAN,S/O.NARAYANAN,
VATTAKAITHAYILVEEDU,. KAKKATTUKARA,
VARAPPETTY VILLAGE.
2. HOCHUMIN,S/O.HANEEFA,
PADAMOOTTILVEEDU,VARIKALIKARA,MUNDAKAYAM.
3. CHEGWERA,S/O.HANEEFA,
PADAMOOTTILVEEDU, VARIKALIKARA,
MUNDAKAYAM.
BY ADVS.SRI.T.D.ROBIN
SRI.PHILIP T.VARGHESE
RESPONDENT
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1. STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM. REPRESENTING THE ADDITIONAL
S.I. OF POLICE, TRIPUNITHURA.
BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 09-02-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
V.K.MOHANAN, J.
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Crl.A.No.1413 of 2003
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Dated this the 9th day of February, 2012.
J U D G M E N T
The appellants are accused nos.1, 3 and 16 in crime No.211 of 1996 of Hill Palace police station, who faced the trial in S.C.No.149 of 2003 of the court of the Additional Sessions Judge (Ad hoc-I), Ernakulam. This appeal is filed against the judgment dated 26.7.2003 in the above case, challenging their conviction for the offence punishable under sections 143, 147, 341, 353, 332, 225(B) r/w section 149 of IPC, and the order under sections 4(1) and 5 of the Probation of Offenders Act.
2. The prosecution case is that, at about 1.30 p.m on 5.12.1996, the accused, 18 in numbers formed themselves into an unlawful assembly at Thrippunithura and in furtherance of their common object, the accused persons wrongfully restrained the passenger buses and started 2 Crl.A.No.1413 of 2003 writing on the buses as 'RLV Students on strike'. On getting information about the commission of the offence, the Sub Inspector of Police, Hill Palace police station, rushed to the place of incident and restrained three persons who were writing on the buses and the above three persons were arrested and taken into custody and put them in the police jeep. It is the further case of the police that the accused Nos.1 to 15 assaulted the Sub Inspector of Police, causing grievous hurt to him and thus he was intimidated. According to the Police, the above act of the accused persons caused obstructions to the discharge of official duty of the public officer and the accused persons have also released the three arrested persons from the legal custody of the Police and thus the accused have committed the above mentioned offences. On the basis of the above allegation, PW8 preferred a suo motu report based upon which Ext.P6 FIR was registered for the said offences, and finally, on completing the investigation, report was filed in 3 Crl.A.No.1413 of 2003 the court of Additional Chief Judicial Magistrate, Ernakulam, where the same was received as C.P.No.9 of 2000 and the learned Magistrate committed the case against all the accused except A18, as he was absconding. Therefore, the case against A18 was refiled as C.P.No.41/2000. But subsequently, A18 appeared before the committal court and his case was also subsequently committed to the Sessions Court. On receiving the committal proceedings, the Principal Sessions Court took cognizance of the offence and made over the case to the court of Additional Sessions Judge (Ad hoc-1), Ernakulam, for trial and disposal. Though the case with respect to the seventeen accused was committed and S.C.No.149 of 2003 was instituted, only A2, A5 to A15 and A17 appeared before the trial court and therefore, the case against A1, A3, A4 and A16 was split up and the case against A18 is subsequently committed, upon which S.C.No.362/2001 was instituted.
4 Crl.A.No.1413 of 2003
3. Thus the case against these appellants who were allegedly absconding is re-numbered as S.C.No.149 of 2003. As the accused/PW4 was absconding, the case against A4 was split up and the case against A1, A3 and A16 are proceeded and thus a formal charge was framed against these appellants for the offence punishable under section 143, 147, 341, 333, 353, 225(B) r/w section 149 of IPC, after hearing the prosecution and the defence. When the said charge was read over and explained to the accused, they denied the same and thus the trial was further proceeded, during which the prosecution adduced its evidence consists of the deposition of Pws.1 to 11 and Exts.P1 to P10 and M.Os.I to III were also produced and marked. No evidence either oral or documentary adduced from the side of the defence.
4. Finally, after considering the evidence and materials on record, the trial court has found that the prosecution has succeeded in proving the offence under 5 Crl.A.No.1413 of 2003 section 143, 147, 341, 353, 332, 225(B) r/w section 149 of IPC, against the accused. Accordingly, the appellants A1 to A3 are found not guilty under section 333 of IPC and acquitted them for that offence under section 235 of Cr.P.C. But they are found guilty under section 143, 147, 341, 353, 332, 225(B) r/w section 149 of IPC and they are convicted thereunder.
5. On such conviction, after stating the circumstances under which the alleged incident has taken place, the learned Judge was of the opinion that, it is a fit case wherein accused nos.1 to 3 can be released on probation of good conduct. Thus, the learned Judge of the trial court released accused nos.1 to 3 on probation of good conduct under section 4(1) of the Probation of Offenders Act for a period of two years on condition, executing a bond for Rs.5,000/- with two solvent sureties each for the like sum. Accused 1 to 3 shall report before the District Probation Officer within 15 days of execution of bond under section 4 6 Crl.A.No.1413 of 2003 (3) of Probation of Offenders Act and continue to do so every three months. The District Probation Officer shall send a report to this court during every quarter till the expiry of probation period. In case of violation of the bond executed by the accused, they shall appear and receive sentence when called upon during the probation period. Accused 1 to 3 are directed to pay compensation of Rs.500/- each to PW8 under section 5 of Probation of Offenders Act. The amount ordered to be paid as compensation is liable to be recovered as fine. In default of payment of compensation the accused 1 to 3 are liable to undergo simple imprisonment for 15 days each. It is the above finding, conviction and orders that are challenged in this appeal.
6. I have heard Adv.T.D.Robin learned counsel for the appellants and Smt.Laliza T.Y. learned Public Prosecutor and I have also perused the judgment impugned in this appeal and the materials and evidence available on record.
7. Let us first examine the evidence adduced by the 7 Crl.A.No.1413 of 2003 prosecution in this case. The first witness examined in this case, ie., PW1, was the driver of the Blue Star bus, which allegedly involved in this case, at the relevant time and at the time of examination, he was working as driver of KSRTC but he was declared as hostile and Ext.P1 is the contradiction of his 161 statement. PW1 was cited and examined to prove the incident and particularly the origin of the occurrence and also the object of the alleged unlawful assembly. PW2 was the then Probation Sub Inspector attached to Hill Palace police station. According to PW2, while himself and the Sub Inspector of police of Hill palace police station, who is examined as PW8, were attending a crime conference at the office of the Assistant Commissioner of police, Thrikkakara, at about 1 p.m., they received a message to the effect that students of RLV college, Thrippunithura, who were on strike, blocked the buses infront of Palace Girls High School, Thrippunithura, and causing problems to the traffic as well as to the general 8 Crl.A.No.1413 of 2003 public. Thus according to PW2, as per the direction of the Assistant Commissioner, he alongwith PW8 came to the spot in a police jeep driven by PW4. According to PW2, at that time the students blocked the vehicles and three students were writing on the wind screen of Blue Star bus that, "RLV students on strike". According to PW2, the students caused inconvenience to the passengers by beating the body of the bus. It is the further deposition of PW2 that, on seeing this incident, PW8 took three students into custody, who were engaged in the above mentioned activities and PW8 put them inside the police jeep. According to PW2, in the meantime, about 15 students forcefully resisted himself and 8 and the first accused pushed the hand of PW8 and his hand hit on the iron bar of the police jeep and as a result of that, PW8 sustained fracture injury on the right ring finger. According to PW2, in the meanwhile, the other students released the three students who were in the police jeep and accordingly that three students escaped. According to 9 Crl.A.No.1413 of 2003 PW2, in the meanwhile, flying squad arrived at the spot and with their assistance, 15 students were arrested and removed to the police station. According to PW2, the above conduct of the accused persons caused obstruction to the discharge of the official duty of PW8 and party. PW3, another independent witness, also turned hostile, who was examined to prove the incident and who was working as conductor of the above said private bus, at the material point of time. Exts.P2 and P2(a) are the contradiction of 161 statement of PW3. PW4 is an another witness examined by the prosecution, who was working as the police jeep driver, but PW4 also turned hostile. Ext.P3 jeep mahazar, under which the identity card-M.O.1 seized, was marked through PW4. The court below has held that it is not safe to rely upon the evidence of PW4 totally, as he is not consistent and constant in his evidence and he had claimed that his memory was faded. The prosecution cited and examined PW4 to prove the incident and also to 10 Crl.A.No.1413 of 2003 corroborate the evidence of Pws.2 and 8 but he did not support the entire prosecution case. Though PW4 was declared hostile, it is relevant to note that during his chief examination, he had deposed that when PW8 had attempted to apprehend one person, there was a scuffle, during which PW8 sustained injury. Though a leading question was put to PW4, he had deposed that on arriving at the police station, PW8 told him that there was a pain. PW5 is also a private bus driver, who is an attestor to Ext.P4 scene mahazar. PW6 is the Head Constable attached to the flying squad and the learned Judge of the trial court was of the opinion that, PW6 has no occasion to see the manner in which PW8 sustained injury. But PW6 was not declared as hostile. In the deposition of PW6, he had stated that at about 1.30 p.m., he received a message from the control room about the so called incident and immediately they reached at the spot. PW6 further stated categorically that, when they reached at the spot, Pws.2 and 8 were engaged 11 Crl.A.No.1413 of 2003 in a scuffle with the students of RLV college. According to PW6, he assisted PW8 to arrest the 15 persons from the spot. Though PW6 claimed, while he was in the box, that he can identify A1, he pointed out the 2nd accused, Hochumin as Manoj Narayanan. So as rightly held by the learned Judge of the trial court, the evidence of PW6 is not helpful to prove the incident as claimed by the prosecution. PW7 is another police Constable attached to Hill palace police station, who identified the currency notes and M.O.1 identity card.
8. PW8 is the so called injured in this case. As PW8 is the then Sub Inspector of police, Hill palace police station, himself and PW2 were attending the crime conference convened by the Assistant Commissioner of police, Thrikkakara, on the date of the incident and while they were attending the conference, they received a message about the incident and according to him, as directed by the Assistant Commissioner, himself and PW2 proceed to the 12 Crl.A.No.1413 of 2003 spot in a jeep driven by PW4 and they reached at the spot by 1.30 p.m. According to him, when they arrived at the spot, they have witnessed that an unlawful assembly of students blocked the vehicles and three students were writing on the wind screen of Blue Star bus as "RLV students on strike". According to PW8, the students had also caused inconvenience to the passengers by beating on the body of the bus. It is the specific case of PW8 that, on seeing the same, he took the three students into custody who engaged in the above mentioned activities and put them inside the police jeep. According to PW8, at that time, about 15 persons forcefully resisted Pws.2 and 8 and the first accused pushed his hands and thus his hand hit on the back of the jeep and as a result of that he had sustained injury. According to PW8, in the meanwhile, the students who were put in the jeep were escaped. PW8 has further deposed that in the meanwhile, the police flying squad arrived at the spot and with their assistance, 15 students 13 Crl.A.No.1413 of 2003 were arrested from the spot and taken to Hill palace police station. He had also deposed that as a result of the conduct of the accused and because of their obstruction, he could not discharge his official duty. PW8 has further deposed that because of the injury sustained by him in the said incident, he had approached PW11 Dr.A.Rajakumari, Taluk Head Quarters Hospital, Thrippunithura and his injury was got examined by that doctor who issued Ext.P10 wound certificate dated 5.12.1996. It is the further case of PW8 that as he had pain connected with the injury, he met PW9 Dr.J.P.Kammath who is attached to Vijayakumara Menon Hospital, Thrippunithura, and he issued Ext.P7 wound certificate dated 7.12.1996. PW8 has claimed that as deposed by the doctors, he had taken x-ray of the injured finger of his right hand. When PW8 was examined, the prosecution has got marked Ext.P5 occurrence report and Ext.P6 FIR prepared by PW8. It is relevant to note that when PW8 was examined, his attempt to identify the 14 Crl.A.No.1413 of 2003 accused was failed firstly since he pointed out the second accused as the person who struck on his hand but subsequently he pointed out the first accused saying that, "It appears that it is the said person who struck his hand".
9. When Pws.9 and 11 were examined, they deposed that they have examined PW8 and issued wound certificates, ie., Ext.P7 dated 7.12.1996 and Ext.P10 dated 5.12.1996, respectively. PW11 has deposed that, without taking the x-ray of the alleged injured part of the finger, where PW8 claimed to have sustained injury, it was impossible to make any opinion as to whether there was a fracture. When PW9 was examined, he had deposed that PW8 sustained a fracture injury. PW10 is the then Additional Sub Inspector of police, Hill palace police station, who undertook the investigation. During his examination, Ext.P8 mahazar for the Blue Star bus and Ext.P9, the report incorporating Section 333 of IPC are marked and it was 15 Crl.A.No.1413 of 2003 PW10 who laid the charge on completing the investigation. These are the evidences and materials referred to and relied on by the leading Judge of the trial court in support of his findings and convicting the appellants.
10. Sri.T.D.Robin, learned counsel for the appellants submitted that the entire prosecution case is under shadow of doubt and the very initiation of the proceedings as spoken by the prosecution witnesses, are unbelievable. In support of the above submission, the learned counsel has pointed out that the prosecution witnesses themselves have admitted that the distance from the place of occurrence to the Hill palace police station will come only 1 km. and there is every possibility to reach the information firstly in the Hill palace police station. According to the counsel, though Pws.2 and 8 claimed that they have received wireless message, the evidence of Pws.2 and 8 are silent as to from which source they received the message.
11. It is the further submission of the learned counsel 16 Crl.A.No.1413 of 2003 that the very basis of the prosecution allegation is that, on getting a message in connection with the law and order situation, especially regarding the alleged obstruction created by the students of RLC college, who allegedly blocked the buses and created nuisance to the general public, the prosecution, during the trial, has given up such case and no evidence is adduced to prove any of such incident. According to the learned counsel, during the trial of the case, the main attempt of the prosecution was to prove that PW8 sustained injury at the instance of accused no.1, since PW8 resisted the accused from forceful release of the three students arrested by PW8. According to the learned counsel, absolutely there is no evidence to prove the origin of the incident, except the interested version of Pws.2 and 8, particularly when the trial court is not prepared to act upon the evidence of Pws.4 and 6. It is also the submission of the learned counsel that though Pws.2 and 8 claimed that they have arrested three persons, who 17 Crl.A.No.1413 of 2003 are allegedly seen writing on the wind glass of the bus, no document is produced by the prosecution to show that they were lawfully and legally arrested and the deposition of Pws.2 and 8 are not sufficient to hold that those three persons were legally arrested. Thus according to the learned counsel, the prosecution has miserably failed to prove the very genesis of the prosecution case.
12. The learned counsel further submitted that Pws.2 and 8 made substantive improvements when they were examined in the court. It is also the submission of the learned counsel that the prosecution witnesses, particularly Pws.2 and 8 miserably failed to properly identify the accused who is allegedly responsible for the injury sustained by PW8. It is also the submission of the learned counsel that the prosecution has miserably failed to prove that PW8 sustained any fracture injury. In support of the above submission, the learned counsel invited my attention to Ext.P10 wound certificate issued by PW11, wherein 18 Crl.A.No.1413 of 2003 though the time was initially written as 2.45 p.m. the same was scored off and re-written as 1.45 p.m. After taking me through the evidence of PW11, the learned counsel submitted that PW11 never said that, though she had occasion to examine the injury allegedly sustained by PW8, PW8 sustained any fracture injury. It is also pointed out that, though PW11 was available, PW8 has chosen to consult PW9, Dr.Kammath attached to a private hospital, on the third day of the incident and got Ext.P7 wound certificate. According to the learned counsel, the above approach and conduct of PW8 is doubtful, when PW11 is available and x-ray facilities are also available in the Taluk Head Quarters Hospital, Thrippunithura. After taking me through the evidence of PW9, the learned counsel further submitted that there is no positive evidence to show that PW9 opined that, PW8 sustained fracture injury after examining any x-ray. Therefore, according to the learned counsel, the medical evidence available on record is not 19 Crl.A.No.1413 of 2003 sufficient to prove that PW8 sustained fracture injury as alleged by the prosecution. The learned counsel has also submitted that there is glaring defect in identifying the accused, as the person who responsible for the injury sustained by PW8, particularly in the evidence of Pws.2 and 8, there is serious contradiction in their evidence as to how PW8 sustained injury. According to the learned counsel, when PW2 says that PW8's hand hit on the iron bar of the jeep, PW8 has deposed that as the first accused pushed the hands of PW8, his hand hit on the back door of the police jeep. Thus according to the learned counsel, regarding the person responsible for inflicting the injury and the manner under which PW8 sustained injury, there is no conclusive and reliable evidence. Thus according to the learned counsel, the findings of the court below is absolutely incorrect and illegal and contrary to the evidence and materials on record. Therefore, the accused/ appellants are entitled to get a clear acquittal.
20 Crl.A.No.1413 of 2003
13. On the other hand Laliza T.Y., the learned Public Prosecutor strenuously submitted that the evidence of Pws.2 and 8 are intact with respect to the incident under which PW8 sustained injury and the evidence of PW8-the injured is further corroborated by the medical evidence consists of the deposition of Pws.9 and 11 and the documentary evidence such as Exts.P7 and P10 wound certificates. It is also the submission of the learned counsel that the non production of the x-ray with respect to the injury sustained by PW8 is not a ground to disbelieve the evidence of PW8 and PW9 to the effect that PW8 sustained fracture injury. Thus the learned Public Prosecutor submitted that the findings of the court below is supported by evidence both ocular and documentary and no interference is warranted.
14. I have carefully considered the arguments advanced by the learned counsel for the appellants and the learned Public prosecutor. I have also perused the 21 Crl.A.No.1413 of 2003 judgment of the trial court very carefully and scrutinised the deposition of the prosecution witnesses and other materials.
15. At the outset, it is to be noted that this Court by judgment dated 8.2.2012 has already disposed another two appeals preferred by accused nos.2 and 5 to 15 and accused no.17 connected with the very same crime. This appeal is filed challenging the judgment dated 26.7.2003 in S.C.No.149 of 2003 of the court of the Additional Sessions Judge (Ad hoc-I), Ernakulam, which is also instituted on the basis of the report filed in the very same crime, of crime no.211 of 1996 of the Hill palace police station. As these appellants were not available for trial when the other sessions cases in the very same crime was disposed of, separate sessions case is instituted and in this appeal altogether there are four accused out of which only three of them faced the trial and the 4th accused in the above sessions case was absconding. The appellants herein are 22 Crl.A.No.1413 of 2003 accused nos.1, 3 and 16 in the above crime. The absconded 4th accused in this sessions case subsequently appeared and he faced the trial in S.C.No.265 of 2003 and he was acquitted by judgment dated 31.1.2004.
16. Going by the allegation in the present case, it can be seen that there is no specific overtact alleged against A2 and A4. According to the prosecution, it is A1-the first appellant herein, who is responsible for the injury sustained by PW8. The specific prosecution case is that on 5.12.1996 at 1.30 p.m. the accused in the above crime formed themselves into an unlawful assembly in front of Palace Girls High school at Thrippunithura, and in furtherance of their common object, they wrongfully resisted the passenger's buses and started writing on the wind screen of the bus and they have caused inconvenience to the passengers in the buses and on getting information about the incident, the police party rushed to the place of incident and restrained three persons who were writing on the wind 23 Crl.A.No.1413 of 2003 screen of the bus and taken into custody and put them in the police jeep but the accused persons assaulted the Sub Inspector of police, causing grievous hurt to right ring finger of the Sub Inspector and the accused have caused obstruction to the passengers and also to the official duty of the public officials by intimidating them and the accused persons have also released the three persons from the custody of the police and thus the accused have committed offences punishable under sections 143, 147, 341, 325(B), 333 r/w 149 of IPC. The trial court after considering the evidence and materials found that accused nos.1 to 3 the appellants herein, are found not guilty under section 333 of IPC and the appellants were acquitted for that offence. But the learned Judge has found that the appellants are guilty under sections 143, 147, 341, 325(B), 333 r/w 149 of IPC. In the light of the rival arguments advanced by the counsel for the appellants and the learned Public Prosecutor and in the light of the evidence available on record, the question to 24 Crl.A.No.1413 of 2003 be considered is whether the trial court is justified in its finding, approving the prosecution case and convicting the appellants for the offence under section 143, 147, 341, 353, 332, 225(B) r/w 149 of IPC. According to the prosecution, when Pws.8 and 2 were attending the crime conference at Thrikkakkara at 1 p.m. on 5.12.1996, they received an information and accordingly, they proceeded to the place of occurrence and on arrival, they have witnessed that three persons after blocking a private bus, named Blue Star, seen writting on the wind glass of the bus, an advertisement that "RLV students on strike". It is the further case of the prosecution that, on seeing the same, PW8 apprehended the three students who were engaged in the said activities and put them in the police jeep, in which they arrived from Thrikkakara to Thrippunithura which was driven by PW4. The further case of the prosecution is that, PW8 sustained injury after the alleged incident and the arrest or apprehension of the above three students. In this case, 25 Crl.A.No.1413 of 2003 absolutely there is no evidence to prove the above incident, except the interested version of Pws.2 and 8. No passenger of the bus were examined to prove the incident. The driver and conductor of the said private vehicle when examined, were turned hostile. Evenif it is admitted for the sake of argument that the vehicles were blocked by the three students, who were taken into custody and they wrote on the wind glass of the bus, the prosecution has no case that these persons were legally arrested and taken into lawful custody. No documents are produced during the trial of the case to prove the factum of arrest of the said students. In the decision cited by the learned counsel in State of Kerala Vs. Devassy (AIR 1962 KERALA 258) this Court has held that, "In order that an offence under section 225-B is made out the apprehension and detention must be lawful, that is to say the warrant on which the arrest is made and detention is ordered must satisfy all due formalities of law." In the present case, though 26 Crl.A.No.1413 of 2003 prosecution has raised such a case, the same is not proved positively and especially in the absence of any materials or evidence to the effect that Pws.2 and 8 has arrested the students and put them in the police jeep under legal custody, it cannot be said that the prosecution has succeeded in establishing the first part of its allegations. Therefore, it can be seen that the main plank of the prosecution case is broken.
17. The next question to be considered is, whether the prosecution has succeeded in proving that PW8 sustained injury in the incident, ie., allegedly taken place on 5.12.1996. After having considered the entire prosecution evidence and materials, the trial court particularly in para 13 of its judgment has held that, "One of the main offences alleged against the accused is under section 333 IPC. To attract the above section the accused persons must voluntarily cause grievous hurt to PW8. It is proved that PW8 sustained grievous hurt in the incident. As per section 321 of IPC "there must be intention of causing hurt to any person or with the knowledge that he is likely to cause 27 Crl.A.No.1413 of 2003 hurt to any person." The accused may have knowledge that their act of scuffle with PW8 may cause hurt to him. From the evidence it is not possible to arrive at a conclusion that the accused had intention to cause or knows himself to be likely to cause grievous hurt. At this point it has to be noted that all the accused were unarmed. They were agitating for a cause. The totality of the evidence shows that there was scuffle between the students and PW8 and in that scuffle PW8 sustained injuries. From the evidence and circumstances it is not possible to arrive at a conclusion that the accused persons have intentionally caused hurt to PW8. There is no evidence that they know that their act would be likely to cause grievous hurt to PW8. Therefore section 333 of IPC will not be attracted to the facts of this case."
Thus from the findings of the court below it is crystal clear that, PW8 sustained injury in a scuffle and therefore the only inevitable conclusion that can be arrived is that the prosecution has miserably failed to prove the essential ingredient, namely the mens rea on the part of the accused to inflict such an injury. Therefore, it cannot be said that the prosecution has succeeded in proving the allegation against the accused that they have inflicted injury on PW8. In the present case, out of the three appellants, as I 28 Crl.A.No.1413 of 2003 indicated earlier, the prosecution has not alleged any specific overtact against the appellants 2 and 3. The identity of 2nd and 3rd appellants are also not properly established. According to the prosecution case, it was A1 who pushed the hands of PW8, as a result of which PW8 sustained injury. But as rightly pointed out by the learned counsel for the appellants, both Pws.2 and 8 have miserably failed to identify A1 properly, while they were in the box. It is also relevant to note that, as to how PW8 sustained injury, the evidence of Pws.2 and 8 were contradicting each other. When PW8 says that the first accused pushed the hand and the same hit on the back door of the police jeep, PW2 says that PW8's hand hit on the iron bar of the police jeep. So with respect to the fact as to how PW8 sustained injury and the accused who inflicted the injury, there is no consistent and acceptable evidence. In this case it is to be noted that PW8 is the injured and PW2 is a police officer who accompanied PW8 to the place of occurrence and it is quite 29 Crl.A.No.1413 of 2003 natural on their part to see that the accused are convicted and therefore they are interested. There is no rule that the evidence of official witnesses cannot be accepted or acted upon, unless their evidence are corroborated by independent evidence. In the decision relied on by the court below reported in U.P. Vs. Ballabh Das (AIR 1985 S.C. 1384) the Honourable Apex Court has held that, "where the witnesses are interested the court should approach their evidence with care and caution in order to exclude the possibility of false implication." It is also a settled proposition of law that the evidences of official witnesses requires corroboration when their evidences are doubted or where there are infirmities or contradictions in their evidences. In the present case, I have already pointed out the infirmities and contradictions that occurred in the evidence of Pws.2 and 8. Therefore, independent evidence to corroborate the evidence of Pws.2 and 8 are absolutely necessary but in the present case, even the official 30 Crl.A.No.1413 of 2003 witnesses did not support the evidence of Pws.2 and 8. Therefore, regarding the incident, as to how PW8 sustained injury and who is responsible for inflicting such an injury, absolutely there is no clinching and acceptable evidence.
18. The court below in support of its finding, gave much importance and weightage to the evidence of Pws.9 and 11 and the wound certificates issued by those doctors ie., Exts.P7 and P10 respectively. But the court below miserably failed to appreciate the evidence of those expert witnesses and the documents. As pointed out by the learned counsel, in Ext.P10 wound certificate though the time is originally shown as 2.45 p.m., the same was struck off and corrected as 1.45 p.m. No explanation is forth coming from the prosecution for such correction. It is also relevant to note that PW11 has stated that if there was a fracture there would be pain and if the same is not properly treated the pain would be aggravated. It is also a fact that when PW8 allegedly met PW11, the x-ray system in the 31 Crl.A.No.1413 of 2003 Taluk Head Quarters Hospital at Thrippunithura was not functioning and therefore no x-ray was taken. But PW11 has categorically stated that unless x-ray screening it cannot be said that whether PW8 has sustained any fracture injury. But PW8 neither chosen to meet PW11 on the next day nor tried to get x-ray material of the injured finger on the next date by making use of the x-ray facilities available in the Government Hospital where PW11 was working. But PW8 consulted PW9 on the third date of the incident ie., on 7.12.1996 and obtained Ext.P7 wound certificate dated 7.12.1996. The above approach of PW8, according to me, cannot be accepted unless a proper explanation is given as to why he being a public servant chosen to consult PW9-a doctor attached to a private hospital, especially when x-ray facilities are available in the Government hospital where PW11 is working. In this juncture it is also relevant to note that, when PW8 was examined as PW1 in S.C.No.149 of 2003, he has no case that he had pain on 5.12.1996 or any 32 Crl.A.No.1413 of 2003 date till he consulted PW9. But during his deposition in the present case as PW8, he had deposed that he had pain. The above change of version or deposition itself shows his interest both in the case and for a conviction of the accused. It is also relevant to note that in the deposition of PW9, he has no case that he had seen the x-ray with respect to the injured finger of PW8. So the opinion expressed by PW9 that PW8 sustained fracture injury is unsupported by any documentary or scientific evidence. Thus, according to me, the prosecution has miserably failed to prove that PW8 sustained any fracture injury on the date of the alleged incident.
19. In the light of the above discussion and the materials and evidence referred to above, I am of the firm opinion that the trial court is not justified in its finding and convicting the appellants for the offence under section 143, 147, 341, 353, 332, 225(B) r/w 149 of IPC and accordingly the conviction recorded by the trial court against the 33 Crl.A.No.1413 of 2003 appellants is set aside.
In the result, this appeal is allowed setting aside the judgment dated 26.7.2003 in S.C.No.149 of 2003 of the court of the Additional Sessions Judge (Ad hoc-I), Ernakulam, and the appellants/accused are acquitted of all the charges levelled against them and the bail bond if any executed by them is stand cancelled and they are set at liberty. The fine amount if any deposited by the appellants shall be returned to them.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A.to Judge