IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1923 of 2004(A)
1. ANILKUMAR, S/O K.S.MONY,
... Petitioner
Vs
1. ASWAKUMAR, SUB INSPECTOR,
... Respondent
2. THAMPI, A.S.I. ANCHAN POLICE STATION,
3. BABU, P.C.ANCHAL POLICE STATION,
4. STATE OF KERALA,
For Petitioner :SRI.P.V.GEORGE(PUTHIYIDAM)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :13/03/2009
O R D E R
V.K.MOHANAN, J.
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Crl.A.No. 1923 of 2004
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Dated this the 13th day of March, 2009
J U D G M E N T
This is an appeal filed against the order of acquittal
passed by the trial court at the instance of the complainant in a
private complaint under Section 248(1) of the Code of Criminal
Procedure in favour of respondent 1 to 3. The impugned
judgment is dated 22.9.2004 of the Judicial First Class
Magistrate Court-I, Punalur in C.C.No.709 of 2000.
2. C.C.No.709 of 2000 was instituted upon a private
complaint preferred by the appellant/complainant for the
offences punishable under Sections 452,323,325,326,294(b)
read with Section 34 of I.P.C. The accused are Police Personnel
attached to the Anchal Police Station. The first accused is the
Sub Inspector of Police, Anchal Police Station and second
accused is the Assistant Sub Inspector of Police and third
accused is the Police Constable attached to the above Police
Station.
3. The case of the complainant is that the complainant
and his wife were living separately for the last ten years and he
is giving maintenance to her as per the order of the Family Court,
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Kollam. According to him, at the time of the complaint, he was
residing in his family house named Santha Sadanam. According
to the complainant, second and third accused came in that house
on 1.7.1998 and the second accused told that there is a petition
against him filed by his wife and the first accused wanted to meet
the complainant. It is the further case that accordingly, accused
Nos.2 and 3 caught the complainant and dragged him out of the
house forcibly and put him in a jeep and took to the Police Station
and pushed him into the room of the first accused. It is the
further allegation that the first accused used obscene words to
him and asked him why he is not transferring his right over the
property to his wife and children and the first accused fisted on
his lower lip. Thus, tooth on the lower chaps got uprooted and
fell down. Thereafter, he had beaten the complainant with a lathi
on his face below nose left side causing injury on the inner
portion of upper lip uprooting two teeth on the upper jaw left.
There was bleeding from the mouth and then the second accused
also used obscene words to him and caught him by the collar of
his shirt and pushed him out of the room to varandha and thus, all
the accused committed the offences punishable under Sections
323,324,326,294(b) read with Section 34 of I.P.C.
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4. The sworn statement of the complainant and the
witnesses were recorded. After considering the allegation in the
complaint, sworn statements and the records produced, the case
was taken on file and summons were issued to the accused. On
appearance of the accused, the complainant was asked to
produce the evidence and he examined PWs.1 to 3. Then, after
hearing both the complainant and the accused, a formal charge
was framed under Sections 452,323,325,326, 294(b) read with
Section 34 I.P.C. and read over and explained the same to the
accused and they pleaded not guilty. Thereafter, PWs.1 and 3
were recalled and cross-examined. Ext.P1 wound certificate was
marked. After the prosecution evidence, the incriminating
circumstances which emerged during the evidence of
complainant put to the accused under Section 313 of Cr.P.C. and
they denied the same. No evidence either oral or documentary
was produced from the side of the defence. On the basis of the
rival pleadings and materials on record, the trial court considered
six points for its consideration and finally found that the
prosecution failed to prove the case beyond reasonable doubt
and the accused were found not guilty and accordingly, they were
acquitted under Section 248(1) of Cr.P.C. It is the above finding
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and order of acquittal challenged in this appeal.
5. I have heard learned counsel appearing for the
appellant, Sri.P.V.George and Sri.Anchal.C.Vijayan, appearing
for respondents 1 and 2.
6. Learned counsel for the appellant submits that the
order of acquittal passed by the court below is against the facts
and circumstances involved in the case. According to the learned
counsel, the order of acquittal was passed without assigning any
valid reason. It is also argued that the approach of the trial court
that PWs.1 and 3 are interested witnesses and therefore, their
evidences cannot be believed is contrary to the accepted
principles. It is also submitted that the finding of the court below
regarding the non-examination of independent witnesses is
without any basis. Therefore, according to the learned counsel,
the impugned judgment is liable to be set aside and the
respondents/accused are liable to be convicted for the offence
charged against them.
7. Per contra, learned counsel appearing for the
respondents submits that no case is made out to interfere with
the order of acquittal passed by the trial court. According to the
learned counsel, going by the impugned judgment, the falsity of
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the case of the complainant can be seen. It is also submitted by
the respondents that except the interested version of PWs.1 and
3, there is no independent evidence and the evidence of PWs.1
and 3 are not free from doubt and the same are contradictory in
nature. The medical evidence is also not helpful for the
complainant to substantiate its case. Thus, according to the
learned counsel, the trial court has come into a conclusion on the
basis of the evidence and materials on record and no interference
is warranted.
8. I have carefully considered the contentions advanced
by both the counsel and also perused the evidence and materials
on record. The specific case of the complainant is that on
1.7.1998 at about 10 a.m., accused Nos.2 and 3 came to the
residential house of the complainant where he resides along with
his mother PW3, and entered into the house and forcibly taken
the complainant and dragged him towards the road and pushed
him into the jeep by using obscene words. It is the further case of
PW1/the complainant that accused Nos.2 and 3 pushed the
complainant into the room where the first accused was sitting and
then the first accused, by using obscene words, fisted on his
lower jaw and his tooth on the lower chaps was uprooted.
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According to PW1, the first respondent had beaten him below his
nose with a lathi and two teeth on the upper jaw were uprooted
and fell down. Thereafter, accused Nos.2 and 3 pushed him out
of the room to the verandah as was asked by the first accused. It
was the further case of PW1 that thereafter, his mother and
others took him to the hospital where he was undergone
treatment for 14 days.
9. It has come out in evidence that his wife filed a
petition before the Family Court claiming maintenance which was
allowed ordering to pay Rs.500/- per month. According to the
complainant, the accused inflicted injuries on him under the
influence of his wife. The evidence of PW1 and his claim
regarding the alleged manhandling by A1, A2 and A3 are not free
from doubt. First of all, the case of the complainant that he was
residing along with his mother PW3 in the house shown in the
complaint, is proved as false. It is established that he is residing
in a separate room and not in the house along with PW3 from
where he was alleged to have forcibly taken and dragged into the
jeep. Regarding the above incident of forcibly taking and
dragging into the jeep, there is no independent evidence at all,
even though it is brought on record that near the house of PW3,
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there was a High School and a B.Ed College. The trial court also
found that even according to PW3, she was in the kitchen at the
time of the alleged incident. Therefore, there was no cogent
evidence to show the first part of the alleged incident. Regarding
the second part of the incident also, there is no convincing and
cogent evidence. According to PW1, he was forcibly taken and
dragged into the police jeep, pushed him to the room where the
first accused was sitting and thereof, the first accused inflicted
injuries on his body by using lathi and finally, when second and
third accused pushed him out of the room to the varandha, PW3
came and took him to the hospital. The learned Magistrate of the
trial court, who had got the privilege of observing the demeanour
of the witnesses, came to the conclusion that it is practically
impossible to take all these atrocities on PW1 before PW3
reached in the Police Station. The trial court also found that the
claim of PW3, that she rushed to the Police Station and when she
reached there, she saw PW1 being pushed to varandha from the
room of the first accused by accused Nos.2 and 3, cannot be
believed in the circumstances alleged in the case. PW3 is an
aged woman and according to her, she was busy in the kitchen
when accused Nos.2 and 3 took PW1 in a jeep. They took PW1
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directly to the Police Station and produced him before the first
accused. It is thereafter, according to PW1, the first accused
committed the atrocities on PW1. According to the trial court, the
overt act alleged is that the first accused asked PW1 why he is
not transferring his right over the property to his wife and children,
and fisted on his face and then the other accused had beaten him
with a lathi. The claim of PW1 is that the first accused had
imparted one fisting and one beating with lathi on his face and
then the other accused pushed him out, for which, according to
the trial court, not much time is required for completing the above
and therefore, the claim of PW3 that she followed PW1 and
happened to witness PW1 being pushed out of the room of the
first accused, according to the trial court, cannot be true or
probable. So, the trial court found that the claim of PW3 that she
saw PW1 being pushed out of the room of the first accused by
accused Nos.2 and 3, cannot be taken as circumstance
corroborating PW1.
10. In paragraph 15 of the judgment, the trial court has
considered the overt act alleged by PW1 against the first
accused and considered the entire incident. The trial court found
that the above case of PW1/complainant cannot be believed. As
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per the evidence of PW1, during the chief examination, he has
stated that the first accused had fisted on his lower jaw uprooting
one tooth from lower jaw. It is his further case that then, the first
accused had beaten him below his nose with a lathi causing loss
of two teeth. But, during the cross examination, he had stated
that the first accused had beaten him with a lathi on his lower jaw
and he lost two teeth from the lower jaw. It is also his case that
he had not lost any tooth from his upper jaw though he was
beaten with lathi and the statement to that effect given in the
complaint is not true. So regarding the incident, the number of
alleged blows and the loss of teeth, there is full of contradiction in
the evidence of PW1. In this juncture, it is relevant to note the
defence set up by the accused. According to the defence, the
complainant was under treatment for cancer in his mouth and the
loss of teeth occurred, as a result of that disease and its
treatment. PW2, the Doctor admitted that loss of teeth can be
caused due to cancer on mouth. Going by the evidence of
PW2, it can be seen that he examined PW1/the complainant on
the very same day at 11 a.m., but PW2 did not note any bleeding
from the mouth or bleeding injury. According to PW2, he had just
noted the avulsion fracture of three teeth and small multiple
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abrasion on front of neck. Thus, the trial court observed that if
one was beaten with a lathi on his face below nose with force,
sufficient to uproot two teeth, definitely some external injury would
be caused and there was possibility of injury inside the lips, as
that portion comes into contact with the tooth uprooted. But, in
the present case, no such injury was noted. From the above
discussion, it is crystal clear that the allegation of the complainant
that he was manhandled in the Police station by the first accused,
as a result of which, he sustained injuries, is false. In the light of
the above facts and circumstances, the trial court has correctly
assessed the entire evidence and appreciated the evidence in its
true perspective and I find no reason to interfere with such
finding.
11. Going by the entire materials and evidence on
record, the falsity of the case of the complainant is seen from the
very face of records. After an elaborate discussion of the
materials and evidence on record, the trial court found that the
complainant failed to prove his case beyond reasonable doubt.
On the basis of the said conclusion, the accused were found not
guilty and no ground was made out to interfere with such finding
of the court below.
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12. In the decision reported in Ghurey Lal v. State of
U.P. [2008(4) KLT SN 17 (C.No.17), the Apex Court has laid
down certain circumstances under which the appellate court can
interfere with the order of acquittal. It was also held that
presumption of innocence of accused is reinforced by order of
acquittal and therefore, unless there are substantial and
compelling reasons, the appellate court, while exercising the
appellate jurisdiction, shall not interfere with the order of acquittal.
Reiterating the same position, the Apex Court has held in Batcu
Venkateshwarlu and Ors. v. Public Prosecutor, High Court of
A.P. [2009(1) Supreme 67] that in the case of acquittal, there is a
double presumption in favour of the accused and there must be
substantial and compelling reasons for holding that the trial court
was wrong and then only, the appellate court can, while
exercising the appellate jurisdiction, interfere with the order of
acquittal passed by the trial court. On a perusal of the trial court
judgment and in the light of the facts and circumstances indicated
above, I find no reason to hold that the finding of the trial court
was wrong.
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In the result, there is no merit in the appeal.
Accordingly, the appeal is dismissed.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, JJ.
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Crl.A.NO. OF 200
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J U D G M E N T
DATED: -1-2009
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