IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 477 of 2004()
1. SOMAN S/O.CHANDRASEKHARAN, MILUYIL
... Petitioner
2. SABU S/O.MATHAI, POOVATHUMOOTTIL HOUSE,
3. KUNJUMON S/O.KAPPI, ERANJAL BHAGOM
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.RAJEEV V.KURUP
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :07/07/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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Crl.R.P.No.477 OF 2004
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Dated this the 7th day of July, 2008
O R D E R
The revision petitioners, three in number and another
were chargesheeted for offences punishable under Sections
452, 323 and the second limb of Section 506 read with Section
34 IPC, on the allegation that on 27.6.2001 at about 5.30 p.m.,
in furtherance of their common intention of voluntarily causing
hurt, they criminally trespassed into the residence of PW1 and
beat him on his face and cheek and fisted on his chest and the
third accused criminally intimidated PW1 by putting a knife on
his neck by stating that he would be killed, whereupon PW1’s
mother PW2, who attempted to intervene, was pushed down to
the ground by the first accused and PWs.3 and 4, who reached
the scene of occurrence were also pushed down by catching hold
of them by the neck. PWs.3 and 4 are not residents of the house
belonging to PWs.1 and 2.
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2. Going by the materials on record, PW2, a 60 year old
widow, deposed that her son PW1 was not employed. She did
not refute that she had stated to the police that PW1 was
employed in the Forest Department and that he was on leave.
The late husband of PW2 was employed in the Forest
Department and PW1’s version before the police that he was
employed in the Forest Department was marked as a
contradiction to discredit him. Even without any such
contradiction being marked, PW2 did not deny that she stated to
the police that PW1 was employed in the Forest Department.
She, however, stated that such statement by her was wrong. I
notice the aforesaid in view of the totality of the evidence on
record to ascertain for myself the credibility of PWs.1 and 2
since two other independent witnesses viz. PWs.3 and 4 were
declared hostile by the court of first instance, at the request of
the prosecution.
3. The alleged intention for committing the alleged crime is
that the accused persons had expressed certain negative
comments about PW3 Omana and it is alleged that PW1 had
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transmitted such information to PW3 and this provoked the
accused persons to commit the act of criminal trespass into the
residence of PWs.1 and 2, cause hurt to PW1 and also criminally
intimidate him with threat to life or grievous hurt. The fact
remains that PW3 Omana turned hostile and PW4, another
woman, was also declared hostile. Her statement that accused
persons were found in the residence of PWs.1 and 2, though
noticed by the court of session to sustain the conviction, does not
by itself inspire confidence because the accused persons are also
those who are available in the vicinity of the residence of PWs.1
and 2 and the deposition of PW4 is that the accused persons
were available in the residence of PWs.1 and 2 for at least half
an hour, while she was also there. It might have been possible to
sustain the conviction by taking the testimony of PW4 regarding
the presence of the accused persons in the residence of PWs.1
and 2 as a corroboration, as has been done by the court of
session, if the deposition of PWs.1 and 2 were so inspiring as to
exclude the chances of having a hostile testimonial animus as
against the accused persons.
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4. As already noticed, one of the cardinal materials that
shakes the confidence of the court in the evidence of PWs.1 and
2 is that both of them appear to give a version before the police
that PW1, the son of a former employee of the Forest
Department, was employed with the Forest Department for
around 4 years and he was on leave and he stays along with the
mother in the house in question while his wife stays away alone
in Painavu. This statement, by itself, may not be of much
relevance in so far as the allegations in relation to the alleged
transactions are concerned. But the fact that such statements
have been proved to be false go a long way against their
reliability and does not inspire the confidence of the court to
treat PWs.1 and 2 as credible. Not only that, treating the
versions of PWs.1 and 2 as the only available and dependable
legal evidence on record, they do not tally in many materials
particulars, particularly regarding the availability of PW2 in the
bed room, where PW1 was relaxing on a sofa and seeing the TV.
Though that is the version of one of them, while the other
appears to suggest that she moved in after seeing PW1 being
intimidated, which she saw as she peeped through the curtain.
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This does not appear to be a case where on the face of the
hostility of PWs.3 and 4, it would be safe to convict relying solely
on PWs.1 and 2, even if it is to be supported by certain portions
of the testimony of PW4.
5. Having regard to the totality of the facts and
circumstances, I am satisfied that the impugned order of
conviction and sentence is unavailable of record. At any rate,
the accused persons 1 to 4 were also entitled to the benefit of
doubt at the hands of the court of first instance or the court of
session.
For the aforesaid reasons, the impugned conviction and
sentence are set aside and the revision petition is allowed.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.8/7.