IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 390 of 1999(C)
1. STATE OF KERALA
... Petitioner
Vs
1. N.ANEESH
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.P.V.SURENDRANATH
The Hon'ble MR. Justice J.B.KOSHY
Dated :31/01/2007
O R D E R
J.B.KOSHY, J.
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Criminal Appeal.No.390 OF 1999 ()
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Dated this the 2nd day of February, 2007
JUDGMENT
This appeal is filed by the State against the order of
acquittal in S.C.No.194/1995 on the file of the Additional
Assistant Sessions Judge, Thalassery. The case was registered
as Crime No.39/1994 of Maloor Police Station under Sections
143, 147, 148, 452, 427, 324, 326 and 307 read with Section
149 of the Indian Penal Code. The prosecution case is that in
furtherance of their common object to commit murder of PW2
Balakrishnan due to their animosity towards him that on
information furnished by him the Asst.Superintendent of Police,
Thalassery has conducted a raid and utensils and other
apparatus used for illicit distillation belonging to the 1st accused
were seized and destroyed, the six accused with deadly
weapons like chopper on 21.6.1994 at 8.15 p.m. committed
trespass into the shoproom No.MP.VIII/228 belonged to PW3
Sahadevan at Thrikaderipoyil Tholambra amsom desom and
inflicted injuries on PWs.2 and 3 by accused Nos.1 and 2 and
CRL.APPEAL.390/1999 2
the other four accused committed mischief by damaging the
jeep KL 3879 which was parked in front of the said shop. The
accused left the place and the injured were taken to
Govt.Hospital, Thalassery. After first aid they were taken to
Medical College Hospital, Kozhikode for treatment. PW1
Gangadharan went to Maloor Police station and gave the first
information statement and an FIR was registered and
consequently all the six respondents were charge sheeted.
Trial court convicted them for offences punishable under
Section 143, 148, 452, 427, 324 and 307 read with Section 149
of I.P.C. On reappreciation of the evidence, appellate court
found that the charges levelled against them were not proved
and they were acquitted and the order of acquittal is
challenged in this appeal.
2. For convicting the accused, prosecution mainly relied
on the evidence of PWs.1 to 7, out of which PWs.2 and 3 were
injured. PWs.6 and 7 were the neighboring shop owners. PW3
is the owner of the grocery shop in which the alleged attack on
PW2 was committed. In his first information statement, case
of PW1 was that Nelleri Aneesh, Panikken Pavithran, Kottai
CRL.APPEAL.390/1999 3
Babu, Kottai Sukumaran, Natancheri Sivaraman and Kotten
Raju formed themselves into an unlawful assembly with
choppers chased PW2 and when PW2 Balakrishnan ran into the
shop of PW3 Sahadevan, uttering that you cannot be permitted
to leave, assaulted him and Aneesh inflicted cut injuries with
chopper on the head, both the hands and stomach of
Balakrishnan and Balakrishnan fell down in between the articles
kept for sale in the shop. Natancheri Pavithran with the
chopper in his hand uttered that you will also be murdered and
inflicted a cut injury on the face and head of Sahadevan PW3,
the shop owner. The others Kottai Babu, Pavithran, Sivaraman,
Kotten Raju were committing damage on the jeep KLL 3879
parked in front of the shop with the choppers in their hand.
After inflicting injuries and damaging the jeep all the accused
ran towards the tea shop of one Raman. When this first
informant was examined before the court as PW1 his case is
that Aneesh, Pavithran, Babu, Mukundan, Sivaraman and
Reghu seen chasing Balakrishnan who entered into the shop of
PW3. The names of Kottai Sukumaran and Kotten Raju
mentioned in his first statement were not mentioned in the
witness box and instead of these two, the names of the 2nd
CRL.APPEAL.390/1999 4
accused Pavithran and 4th accused Kotten Raghu @
Reghuthaman were mentioned and according to him two other
names were mentioned by members. The motive alleged by
PW1 is that two days prior to the incident, the Assistant
Superintendent of Police, Thalassery conducted a raid at the
shop of Aneesh and Pavithran and they were under the belief
that the information was given to the police by PW2
Balakrishnan and thus PW2 was attacked. He also stated in
the cross examination that some of the facts mentioned in
Ext.P1 statement are not correct. He admitted that he himself
and PW3 are residing in the same house and Balakrishnan is a
close friend of him.
3. PW2, injured witness deposed regarding the injuries.
According to him, Aneesh inflicted cut injuries on his head,
hand and shoulder and below the chest and he felt in between
the gunny bags and A2 Pavithran inflicted cut injury on his face
and other four accused damaged his jeep parked in front of the
shop. He was taken to Thalassery Govt.Hospital and after first
aid he was admitted in Medical college hospital, Calicut where
he was treated for 42 days. PW3 was also injured in the
CRL.APPEAL.390/1999 5
incident. Both the injured witnesses narrated the incident in
different ways. Lot of discrepancies between 161 statement of
PW3 and his deposition were also brought out in cross
examination. According to PW3, police incorrectly recorded his
statement. The evidence of other defense was correctly
analysed by the appellate court and appellate court found as
follows:
“Now I may point out that the main argument put
forward by the appellants’ counsel before me are
that first of all except PW2, the others are close
relatives. Though an incident has happened at a
time when all the nearby shops were kept opened,
only PWs.6 and 7 who are shop owners, far away
from the shop of PW3, have been cited as witnesses.
The witnesses admitted that on the opposite side of
the road of the shop of PW3 there is a shop of
Sekharan and standing at the Sekharan’s shop, the
shop of PW3 is visible. But neither Sekharan or
anybody who were present in the shop were cited as
witness or examined. Only the close relatives were
cited as eye witnesses to the incident. It may be
noted that the case of PW3 and PW5 is that while
PW2 came running into the shop of PW3, PW3 was
packing some materials to be sold. But nobody has
got a case that any stranger was present there to
purchase any material. None of the witnesses have
got a case that they came to the shop for
purchasing any material from the shop. This cannot
be believed. According to the appellants to support
a false case, the near relatives alone were made eye
witnesses and a false case has been foisted against
these accused.”
CRL.APPEAL.390/1999 6
The appellate court also found that motive was not proved.
There was no evidence in this case that a raid was conducted
by the police in a distillation centre of A1 and A2. If that be so,
police could have made some evidence regarding the same.
There was also no evidence either documentary or oral that
there was sufficient light in the shop of PW3 so that witness
could have seen the incident. The incident occurred at 8.15
p.m. When PWs.1 to 5 were examined before the court on the
prosecution side not even a single question was put to them
regarding the presence of light, for that matter to bring out any
evidence that there was sufficient light inside the shop so that
the witnesses could see the incident to identify the assailants
properly. So also in the scene mahazar prepared, though it is
stated that wiring is seen inside the shop there is no mention of
the presence of even any electric bulbs or that electricity
supply is available in the shop. There was also no electric light
inside the shop and court below found that the burden of the
prosecution is to prove that there was sufficient light to see the
incident. The material witnesses have wrongly named in the
previous statement. PWs.2 and 3 gave wrong names as
accused to the Doctor who issued the wound certificate, apart
CRL.APPEAL.390/1999 7
form the fact that names of A4 and A6 were not mentioned in
the F.I.Statement. With regard to Ext.P4 wound certificate,
regarding the wound of PW2 it was stated by PW2 himself to
Doctor that Nelleri Aneesh, Kottai Sukumaran, Kottai Babu,
Kotten Raju, Sivaraman and Mukundan inflicted injury with
chopper. But it has deposed that it is A2, Pavithran who
inflicted several injuries on him. There was also correction in
the wound certificate, ‘Kotten Reghu’ was corrected as ‘Kotten
Raju’. In any way, Kottai Sukumaran and Kotten Raju were not
accused in this case. According to Ext.P5 wound certificate
with regard to PW3, his definite case was that Pavithran had
inflicted cut injury on his face and head. PWs.1 to 5 are
definite that accused 1 and 2 are the persons who ran behind
PW2, entered into the shop and 1st accused inflicted injuries on
PW2. But before the court PW3 has no case that 2nd accused
Pavithran was present and he is the assailant who inflicted
injuries on him. There is no case that 2nd accused Pavithran
was present at the time of incident and one Katten Reghu was
present at the time of incident. Thereafter court found as
follows:
CRL.APPEAL.390/1999 8
“Both PWs.2 and 3 the injured in their deposition also
admitted that they have given the history of alleged
injuries to the doctor. Therefore it is very clear that
at the time of incident PWs.1 to 3 have mistaken
identity regarding the persons who have attacked on
them. Immediately after the incident they were
under the impression that Kottai Sukumaran and
Katten Raju were present and they have not identified
the 2nd accused Pavithran or the 4th accused Reghu
among them. Here the inconsistent aspect is that the
definite case in the witness box by the occurrence
witnesses is that 2nd accused Pavithran inflicted cut
injury on the face and head of PW3 Sahadevan. So
there is very clinching and clear evidence that so far
as the person who inflicted injury on the face of
Sahadevan PW3, the occurrence witnesses have
mistaken identity. This further proves the fact that
there was no sufficient light in the shop room to
identify the persons who have made the attack. They
have mistakenly identified two persons as Kottai
Sukumaran and Katten Raju and after thought they
have deleted these two persons and implicated 2nd
accused Pavithran and Katten Reghu. Therefore as
has been rightly pointed out by the learned counsel
for the appellants, I am to held that there is no
convincing evidence available on record to show that
there is sufficient light in the shop room for the
witnesses to see the incident and to identify the
persons who have made the attack. This cuts the
room of the prosecution case.
On reappreciation of evidence, appellate court clearly
found that prosecution was not able to prove the case beyond
reasonable doubt. It cannot be stated that view of the court
below is not a possible one. Against the order of acquittal
CRL.APPEAL.390/1999 9
appellate court will not interfere unless it is satisfied by this
Court that view of the court below is perverse or patently
illegal. In the above circumstances, I see no ground to interfere
in the order of acquittal and hence this appeal is dismissed.
J.B.KOSHY, JUDGE
prp
J.B.KOSHY
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Criminal.Appeal.390 OF 1999
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JUDGMENT
31st January, 2007