High Court Kerala High Court

State Of Kerala vs Thomas on 27 January, 2009

Kerala High Court
State Of Kerala vs Thomas on 27 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 153 of 2005()


1. STATE OF KERALA, REP. BY THE
                      ...  Petitioner

                        Vs



1. THOMAS, S/O. PADMADAN ANTHONY,
                       ...       Respondent

2. DAVIS, S/O. PADAMADAN ANTHONY,

3. OUSEPHKUTTY, S/O. KOCHAPUTTI,

4. FRANCIS, S/O. KOCHAPUTTY, PARIYARAM

5. DAVIS, S/O. KOCHAPUTTY, PARIYARAM

6. SHAJI, S/O. GEORGE, MADANI HOUSE,

7. PAULSON, S/O. AMMANAM LONAPPAN,

8. VARGHESE, S/O. ANTHONY,

9. WILSON, S/O. VARKEY THOMAS,

10. SHAJU, S/O. DEVASSY, CHAKKALAKKAL HOUSE,

                For Petitioner  :PUBLIC PROSECUTOR

                For Respondent  :SRI.G.JANARDHANA KURUP (SR.)

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :27/01/2009

 O R D E R
          A.K.BASHEER & THOMAS P. JOSEPH, JJ.
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                          Crl.A.No.153 OF 2005
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            Dated this the 27th day of January, 2009

                                 JUDGMENT

Basheer, J:

State is the appellant in this appeal against acquittal.

By the impugned judgment, learned Third Additional Sessions

Judge (Adhoc), Fast Track Court No.1, Trichur held that the

prosecution had not been able to prove the charge levelled

against the respondents/accused in the case. Accordingly, they

were found not guilty and acquitted of the charge under

Sections 143,147,148 and 302 read with Section 149 of the

Indian Penal Code.

2. The prosecution case in brief was that on January 11,

1997 at about 11.15 p.m the accused, ten in number, had

formed themselves into an unlawful assembly in prosecution of

their common object to cause death of one Padamadan

Varghese by inflicting injuries on him with weapons like

chopper, knife, sword etc. According to the prosecution, the

motive behind the crime was the animosity between the

deceased and accused No.1 in connection with a dispute over a

water channel that was being used for agricultural

operations. The police had charge sheeted the

respondents/accused after completing the investigation for the

offences referred to above.

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3. The prosecution examined Pws 1 to 5 and marked

Exts.P1 to P28 and Mos1 to 15. Exts.D1 and D2 contradictions

were marked on the side of the defence.

4. Learned sessions judge, after a careful evaluation of

the oral and documentary evidence available on record, took

the view that it was not safe to rely on the solitary testimony

of Pw8, brother of the deceased, who alone supported the

prosecution case to some extent. Further, the learned

sessions judge noticed that the version given by Pw8 before

the court was inconsistent and contradictory to the version

given before the police.

5. Learned Public Prosecutor, while assailing the above

judgment of acquittal, contends that the learned sessions

judge was not justified in disbelieving Pw8 whose presence at

the scene of occurrence was never in dispute. He was walking

along with the procession, at a short distance behind the

deceased. The assailants and the deceased were also

participating in the procession as stated in Ext.P5 First

Information Statement given by Pw6. The learned sessions

judge, according to the Public Prosecutor, discarded the

evidence of Pw8 without any valid or justifiable reason.

6. It is also pointed out by the learned Public Prosecutor

that barring a few contradictions here and there, the

evidence of Pw8, if read along with other pieces of evidence,

will undoubtedly show that the accused had, in furtherance of

their common object, inflicted the fatal injuries on the

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deceased.

7. We have carefully perused the entire materials

available on record. In our view it may not be necessary to deal

with the deposition of all the witnesses or the documents

marked in this case. As mentioned earlier, the only witness,

who supported the prosecution case was Pw8, the younger

brother of the deceased. The prosecution had examined Pws7

and 10 also as eye witnesses to the incident. But these two

witnesses did not support the prosecution case and they were

declared hostile. But, Pw8 made an attempt to support the

prosecution case. In his evidence, he deposed that he had

gone to participate in the Ambu festival, that was being held

in the nearby church, after taking his food at about 9 p.m.

Pws 6, 7, 10 and three other named persons had also

accompanied him. These persons who were friends of the

deceased had come to his residence as invited by the

deceased.

8. The deceased had also started off from the residence

in order to join the Ambu procession. The deceased and his

friends were moving along with Nadaswaram contingent in the

procession while Pw8 was a little behind moving along with

Band contingent . At about 11 p.m, while the procession was

moving on, accused No.2 came near the deceased and asked

him not to perform twist dance. The other accused were

also along with accused No.2. After identifying all the

accused in the court, Pw8 stated that in response to the

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demand made by Accused No.2 not to perform twist dance, the

deceased asked him what was wrong with twist dance. At

that time accused No.2 pushed at the neck of the deceased.

A push and pull ensued between Accused No.2 and the

deceased. Somebody pulled away the deceased. At that time,

Accused No.1 took out a sword from behind and cut at the

neck of the deceased. Accused No.8 inflicted a cut injury with

a chopper on the thigh of the deceased who tried to avert the

the assault with his hand. There was a scuffle between the

deceased and the accused to get hold of the weapon. The

deceased managed to get the chopper in his hand and he

slashed it at the accused. In that process, accused Nos.2 and 8

sustained some injuries. While accused No.2 sustained injury

on the hand, accused No.8 suffered an injury on his thigh.

Accused No.8 snatched away the chopper from the hand of

the deceased and inflicted an injury on his back. The deceased

ran from the scene towards the gate of the residential

building of Kunjuvareed Master. The accused followed him

with the weapons and sticks. The deceased ran further ahead

from the gate of Kunjuvareed Master and reached the

residential compound of Ittira. The accused followed him,

stabbed and beat him. The deceased went inside the gate and

fell down. Accused Nos.1 and 8 inflicted injuries on the

deceased with a sword and chopper. Accused Nos.4 and 5

beat the deceased with sticks. Accused No.9 beat the

deceased on his head with a torch. Accused No.10 stabbed on

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the left side of the chest of the deceased with a knife. All

others stood around the deceased and kicked. Pw8 stated that

seeing all this, he ran away to his house to report the matter.

He saw the incident in the tube light. He further stated that

Accused Nos.1 and 2 were closely related to him and the

deceased.

9. In cross examination, Pw8 admitted that he had not

told the police about the assault with chopper and sword.

Further he stated that the weapons involved in the crime

were two sticks, one sword and one chopper. He further

conceded that out of the ten accused, only four were

carrying weapons; but the others did not. He further

admitted that the alleged motive namely the dispute with

regard to the irrigation channel had occurred about 18 years

ago and that there was no further incident or altercation

between the two families in respect of the said dispute.

10. We do not propose to refer to the various

inconsistent and contradictory statements with regard to the

manner in which the alleged incident took place. Further

those inconsistent and contradictory versions which came out

in evidence will not only create confusion in the mind of the

court as rightly noticed by the learned sessions judge, but they

will also cut at the root of the prosecution case itself.

11. It may be true that Pw8 had spoken about the

first part of the incident. But in this context, it has to be

noticed that according to the prosecution, the first part of the

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incident took place while the procession was proceeding. The

specific case of the prosecution was that accused No.2 had

asked the deceased to stop his twist dance. Thereupon

accused No.2 is alleged to have pushed at the neck of the

deceased. At that time accused No.1 is alleged to have cut

at the neck of the deceased with a sword and accused No.2

had inflicted a wound on the thigh of the deceased.

Further, the deceased had caused two injuries on accused

Nos.2 and 8 after snatching away the chopper from the

hands of accused No.8. It was the further case of the

prosecution that accused No.8 had thereafter inflicted a stab

on the back of the deceased. At that time accused No.8 also

is alleged to have inflicted another cut injury at the back of

the deceased with the chopper. Thus the deceased had

suffered three injuries while he was participating in the

procession at the hands of A1 and A8. Similarly accused Nos.2

and 8 also had suffered some injuries which were allegedly

inflicted by the deceased himself after snatching away the

chopper from accused No.8.

12. Going by the site plan no incident took place on the

road while the procession was going on. This material

deviation in the prosecution case in our view is enough to

cast shadow of doubt on the entire prosecution version.

13. In this context, we may also refer to the charge

sheet in Crime No.21/1997 which was registered against the

deceased for allegedly causing injuries on accused Nos.2 and

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8. Ext.P3 is stated to be the wound certificate issued by Pw4,

Dr. Antony after examining accused No.2. Ext.P4 is the wound

certificate issued by Pw5, Dr. Ravindran in respect of the injury

suffered by accused No.8. In Ext.P4 the doctor had recorded

that the injured (A8) had informed him that Padamadan

Varghese (deceased) had caused the injury by assaulting him

with a sword stick. We have referred to these two certificates

only to highlight the fact that the deceased had also allegedly

caused injuries on the two accused. But, a perusal of the

records in Crime No.21/1997 indicates that the deceased had

allegedly inflicted the injury on the defacto complainant in that

case with a chopper.

14. As mentioned by us earlier, perusal of the oral

testimony of Pw8 does not inspire any confidence in us. The

trial court in our view, had rightly refused to place any

reliance on the evidence of this witness. The trial court which

had the advantage of watching the demeanur of this

particular witness apart from others, was justified in

disbelieving the prosecution case.

15. We may also notice that Pw8 had not chosen to go

to the police and report the matter, though according to him

he had seen the entire incident. He did not go to the

hospital either. Further he gave his statement before the

police only 3 days after the alleged incident. This conduct of

Pw8 also cast a shadow over the credibility of his version.

16. It is trite that the scope for interference in appeal

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against acquittal is very narrow and limited. Even if two

views are possible, it may not always be permissible to

substitute the view of the trial court with the other possible

or alternate view. In State of Maharashtra v. Sijay M.

Poyarekar [2008 (4) KLT SN.28 (SC)] it has been held by

their Lordships that the appellate court should not disturb

the finding of acquittal recorded by the trial court merely for

the reason that another view is possible. It is also trite that

acquittal by the trial court should not be interfered with

unless it is totally perverse and wholly unsustainable.

17. Having carefully perused the impugned judgment and

the materials available on record, we do not find any

apparent perversity or illegality in the finding entered by the

learned sessions judge. We are satisfied that the learned

Sessions Judge was justified in giving the benefit of doubt to

the accused. Therefore we do not find any reason to

interfere with the judgment of acquittal.

The appeal fails and it is accordingly dismissed.

(A.K.BASHEER, JUDGE)

(THOMAS P. JOSEPH, JUDGE)

cl

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A.K.BASHEER &
THOMAS P. JOSEPH, JJ.

Crl.A.No.153 OF 2005

JUDGMENT

27th January, 2009

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