IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2006 of 2003()
1. K.V. THOMAS, S/O. K.P. VARGHESE,
... Petitioner
Vs
1. GEORGE, S/O. DAVID, THENGANAL VEETTIL,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.C.T.JESTIN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :29/10/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.2006 of 2003
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Dated this the 29th day of October, 2009
ORDER
The revision petitioner is the defacto complainant in
S.C.No.512 of 2001 on the file of the Additional Sessions Judge
(Adhoc)-II, Ernakulam. The first respondent is the accused. The
first respondent was prosecuted by the Circle Inspector of
Police, Puthencruz for offence under Sections 452, 341, 506(ii),
324, 326 and 307 r/w.34 I.P.C. After the trial the first
respondent was found not guilty. Consequently, he was
acquitted under Section 235 of the Code of Criminal Procedure.
Assailing the legality, correctness and propriety of the above
judgment of acquittal, this revision petition was preferred.
2. The brief facts of the case are that the revision
petitioner and the respondent are on inimical terms due to
property disputes and civil cases were pending between them.
While so, a civil suit was decreed in favour of the revision
petitioner and that aggravated the enmity. It is alleged that at
11 p.m. on 2/2/2000 the first respondent along with his son Binu
& two other persons, whose identity could not be ascertained,
were armed with deadly weapons like knife, wooden reaper and
handle of spade and they committed criminal trespass to the
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courtyard of the house of the revision petitioner and the revision
petitioner, who had been out of the house for micturating the
child, was stabbed by the first respondent. The son of the first
respondent beat him with the handle of a spade. Two other
persons, who could not be identified also assaulted the revision
petitioner and the child with reaper. Hearing the cry PW.1, the
brother of the revision petitioner, who was residing 100 metres
away, rushed to the house. He alarmed the neighbours. The
revision petitioner and the child were rushed to the Medical
Mission Hospital, Kolanchery. From there the revision petitioner
was referred to the Specialist Hospital, Ernakulam. After
admitting the revision petitioner at the Specialist Hospital, on
the next day PW.1 rushed to the Puthencruz police station and
lodged Ext.P1, First Information Statement before PW.15, the
Head Constable. On the basis of Ext.P1 First Information
Statement, a case as crime No.43/2000 was registered by PW.15
against the 1st respondent, his son Binu and two others. The
investigation was taken over by PW.16 the then Circle Inspector.
He questioned the witnesses, recorded their statements and
arrested the first respondent and on the basis of the so-called
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statement given by the first respondent, recoveries were also
made. While so, PW.16 was succeeded by PW.17. PW.17
completed the investigation and laid the charge sheet against
the first respondent before the Judicial Magistrate of the First
Class, Kolenchery. The learned Magistrate took cognizance and
proceeded as C.P.10/2001. On finding that the offence alleged is
triable by a court of Sessions, after complying the requisite
procedures, the case was committed to the court of Session,
Ernakulam from where it was made over to the Additional
Sessions Judge (Adhoc)-I, Ernakulam.
3. After hearing the prosecution and the first respondent
the learned additional Sessions Judge, framed a charge for the
above said offence. Since the first respondent pleaded not
guilty, he was sent for trial. On the side of the prosecution
PWs.1 to 17 were examined and Exts.P1 to P13 were marked.
During the course of cross-examination PWs.1, 2 and 4, Exts.D1
to D3, certain portions of case diary statements were marked as
contradictions. MOs.1 to 7 were also marked.
4. After closing the evidence for the prosecution the
first respondent was questioned under Section 313 of Code of
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Criminal Procedure. He denied the incriminating evidence and
contented that the revision petitioner and the family members
were on inimical terms and influencing the police, the case was
falsely foisted. Though the first respondent was called upon to
enter his defence, no defence evidence was let in. The learned
Additional Sessions Judge on appraisal of the evidence arrived a
finding against the prosecution. Consequently the first
respondent was acquitted. Now the revision.
5. I heard the learned counsel for the revision petitioner,
first respondent and the public prosecutor.
6. In support of the prosecution case, the evidence of
PWs.1 to 4 were relied upon. PW.1 is the first informant who is
the brother of the revision petitioner. PW.2 is the victim the
revision petitioner. PW.3 is the daughter of PW.2 who is a child
witness. PW.4 is the wife of the revision petitioner. The evidence
of PW.1 would show that he is residing about 100 metres away
from the spot of occurrence. According to him, hearing the cry,
he rushed to the house of PW.2 and found the first respondent,
his son and other two unidentifiable persons running away from
the spot of occurrence with knife, reapers & handle of spade in
hands.
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7. The evidence of PW.2 would show that he had
adduced evidence in support of the prosecution case. According
to him, he was stabbed twice by the first respondent and beaten
by the son of the first respondent. As a result he sustained
fracture of the right arm. The evidence of PW.7 coupled with
Ext.P3 wound certificate would show that PW.2 had penetrating
wound 2x2x3cms right arm about 10 cms above medeal
epicondyle, 5x3x4cm just above lateral epicondyle, 5x5cm
contusion and deformity on extensar aspect middle third of right
fore arm. Closed communated # right ulna, middle third. The
evidence of PW.7 coupled with Ext.P4 wound certificate would
show that PW.3, the daughter of PW.2 had lacereted wound 3×1
cms back of right arm, contusion right lumbar and hypocondyl
region and contusion on scapula both sides. The evidence of
PW.2 coupled with the evidence of PW.7 and Exts.P1 to P4 would
show that in fact PW.2 had sustained injuries as deposed by him.
PW.3 also had sustained injuries.
8. PW.4, the wife of PW.2 had also deposed that hearing
the cry she rushed out of the house and found that the first
respondent stabbing the revision petitioner and son of the first
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respondent and other two unidentifiable persons beating PWs.2
and 3 with reapers.
9. Having gone through the evidence of PWs.1,2,3,4,7
and Exts.P3 and P4, there is evidence on record to conclude that
revision petitioner had sustained injuries. The question which
then arise is whether it was inflicted by the first respondent as
alleged by the prosecution. According to the learned counsel for
the revision petitioner there is absolutely no reason to disbelieve
the evidence of PWs.1,2,3 and 4. Though they are interested
witnesses, their presence at the spot of occurrence is justified
and they are quite natural witnesses. It was further submitted
that the knife which was marked as MO.6, the handle of spade
which was marked as MO.1 and wooden reaper which was
marked as MO.2 were seized from the house of the first
respondent on the basis of the statement given by him and that
the recovery leads to the complicity of the first respondent with
the offence alleged.
10. MOs.1, 2 and 6 were produced by the prosecution as if
those material objects were seized on the basis of the statement
given by the first respondent while he was in custody. It is
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pertinent to note that the so-called statement given by the first
respondent was not brought in evidence. Prosecution case that
MOs.1,2, and 6 were seized on the basis of the statement given
by the first respondent cannot be given reliance for want of
production of the statement. Adding to the above, though it is
stated that the material objects contained blood stains, it was not
sent for analysis and there is no scientific report to the effect
that any of the material objects contained any blood stain. So
the recovery of MOs.1,2 and 6 would not support the prosecution
to prove the complicity of the first respondent.
11. To disbelieve the prosecution case, the learned
Additional Sessions Judge had taken note that there was delay in
launching the first information statement and delay in
forwarding the first information report. It is seen that Ext.P1
was recorded at 1p.m. on 3/2/2000. Since the incident occurred
at 11p.m. on 2/2/2000 and PW.2 was taken from one hospital to
another, the injured was not in a position to go to the police
station and give the statement immediately. The evidence of
PW.1 would show that after he admitting PW.2 at the Specialist
Hospital, Ernakulam he had gone to the police station and give
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the statement. Explanation for the delay in giving first
information is believable. In fact I find there is no delay in
launching the first information statement.
12. A reading of the First Information Statement would
show that the son of the first respondent was implicated for
having the revision petitioner beaten with the handle of a spade.
In the box Pws.1,2,3 and 4 had implicated the son of the 1st
respondent. The evidence of PWs.5 and 11 would show that the
son of the revision petitioner was in fact at Thiruvananthapuram
at the time of occurrence where he was studying in ITI, Chakka.
The evidence of PWs.5 and 11 would show that, the son of the
first respondent was falsely implicated. False implication is
apparent. The very case of the prosecution is that existing
property dispute between the revision petitioner and the first
respondent culminated in the crime. In the above circumstance,
false implication cannot be ruled out. It is very unsafe to rely
upon the interested testimony to arrive a finding of guilty. It is
for that main reason the prosecution case was disbelieved by the
trial court. It cannot be said that the reasoning given by the
lower court is unsustainable. If the evidence of PWs.1, 2 and 4 is
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analysed in this background the possibility of false implication
cannot be ruled out. The evidence of PW.1 would show that
there is a little chance for he seeing the first respondent and his
son running away from the spot of occurrence. From Ext.P5 it is
seen that there is no straight way from the house of the PW.1 to
the house of the revision petitioner. A look at Ext.P5 persuades
to conclude that on the way, PW.1 couldn’t see the persons
standing at the court yard. He could see only after coming to the
court yard. It is revealed that there are other close neighbours.
None of them heard the cry or seen the assailants. In the
circumstance, the evidence of PW.1 that he had seen the first
respondent or son or other persons mentioned running away
from the spot is not believable. So the trial court was justified in
disbelieving PW.1.
13. If the evidence of PW.4 is taken into consideration,
the revision petitioner was stabbed only once. But according to
PW.2 he was stabbed twice. Thus the evidence of P.Ws.2 and 4
did not tally with. It is in the above circumstances and taking
note that there was long standing disputes and civil case
between the revision petitioner and the first respondent, the
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learned Additional Sessions Judge, who had occasion to watch
the demeanour of the witnesses disbelieved the evidence of
P.Ws.1 to 4. While sitting in revision, it is rather unable to find
that the court below went wrong. It didn’t appear to be a glaring
case of injustice or fundamental principles of appreciation of law
and evidence is violated so as to be rectified in exercise of
revisional powers.
14. In Bansilal v. Laxman Singh (1986 S.C.1721) at
paragraph 9 it is held as follows:
“The revisional jurisdiction of the High Court while
dealing with an order of acquittal passed by the trial court is more
narrow in its scope. It is only in glaring cases of injustice
resulting from some violation of fundamental principles of law by
the trial court, that the High Court is empowered to set aside the
order of the acquittal and direct a retiral of the acquitted accused.
From the very nature of this power it should be exercised
sparingly and with great care and caution.”
The position of law regarding the power of exercising a
revisional jurisdiction being the above, I find that there is little
reason to interfere with the appreciation of evidence by the
learned Additional Sessions Judge.
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15. It is true that there is evidence to the effect that the
revision petitioner and her daughter sustained injury. But the
question is regarding the complicity of the revision petitioner.
The evidence of P.Ws.1 to 4 are found not believable. It is a
question of appreciation of evidence. For the reasons stated
earlier, it could not be held, that the trial court committed
serious error in disbelieving the witnesses. Convincing reasons
are given by the trial court to find in favour the defence. There is
little reason to interfere with the finding of acquittal.
In the result, the revision petition fails. Accordingly it is
dismissed.
P.S.GOPINATHAN, JUDGE
skj.