IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.L.P..No. 372 of 2009()
1. P.SHAHUL HAMEED, 47 YEARS,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. SUBRAMANIAN @ BALAN,
3. ABDUL RIYAS, AGED 37 YEARS,
4. RAMAKRISHNAN, S/O.KANDAN,
For Petitioner :SMT.T.D.RAJALAKSHMI
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :03/06/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.L.P.NO.372 OF 2009
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Dated this the 3rd day of June, 2009
O R D E R
This petition is filed for leave against the order of acquittal
passed by the JFCM, Ottapalam in C.C.No.7/1997. The accused
were charge sheeted for the offences under Sections 323,324
and 326 read with Section 34 of the I.P.C and after the
conclusion of the trial, originally the trial court convicted them
and the matter was taken in appeal and in appeal the
conviction and sentence was set aside and the matter was
remitted for further trial and disposal. Thereafter, the trial
was conducted and it had ended in acquittal of the accused.
It is against that decision, the appeal is preferred. The trump
card or the material document on the basis of which the
prosecution case has gone against the present complainant
is Ext.B1 and the evidence of DW3. It is the case that the
complainant had gone to the Paris lodge at Shornur to
meet Usman and get back an amount of Rs.25,000/= which he
had borrowed. While they were talking, it is alleged that
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Usman received a phone call and while he was conversing
the accused made a hue and cry and disturbed the talk,
which the defaco complainant did not like. Thereafter when
objection was raised he was fisted, taken to a corner and
stabbed with a knife and resulted in sustainment of the
injuries.
2. On the contra, the defence appears to be that there
was a phone call and while the defacto complainant was
talking, there was some disturbance and being annoyed with
the same, he came and attacked one of the accused with a
knife by stabbing him on the chest resulting in injuries to that
person and there was an altercation between the accused and
the complainant for getting the knife and in that process the
complainant had sustained some injuries. The matter has been
very elaborately considered by the learned Magistrate and the
learned Magistrate on the basis of Ext.B1 and also the evidence
available, arrived at a decision that the probability of the
defacto complainant being the aggressor cannot be ruled out
and that the injuries sustained could be on account of the
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subsequent altercation that ensured between the complainant
and the accused. Ext.B1 was the First Information Statement
given by the accused in Crime No.191/1996. It was recorded
by the Head Constable. In that, it has been stated that when
the accused created an unpleasant scene, PW1 himself was
talking over phone was denied. The suggestion of the learned
counsel was that PW1 was irritated by the noise, had abused
the accused and had taken a knife from the hip and stabbed.
The medical evidence also would reveal that the 4th
accused had sustained stab injuries on the chest and it has
been proved by the doctor, who had treated him. The 4th
accused had an incised wound, 2 c.m in length, on the left side
of the chest. According to DW2- the doctor, the said injury
could be inflicted by way of stab with a knife. It was
submitted that several persons were available in front of the
Paris lodge at the time of the incident, but nobody except
the defacto complainant has been examined in this case. So,
the trial court considered the over all evidence in the matter
and came to the conclusion that it cannot be ruled out that
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PW1 might have been the aggressor and further that the
injuries sustained by him should have been caused as a result
of the altercation that ensued thereafter. It is not arrived at
on a misappropriation of evidence but on the materials which
will create a suspicion in the mind of any reasonable man.
Therefore, I do not find any ground to give special leave in
this matter and therefore, Crl.L.P is dismissed.
M.N. KRISHNAN, JUDGE
cl
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