State Of Kerala Represented By The vs Sivanandan on 27 February, 2008

0
224
Kerala High Court
State Of Kerala Represented By The vs Sivanandan on 27 February, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1869 of 2004()


1. STATE OF KERALA REPRESENTED BY THE
                      ...  Petitioner

                        Vs



1. SIVANANDAN, S/O.VASU, VADAKKEPPURAYIL
                       ...       Respondent

2. VASU, S/O.RAMAN,

3. RADHA D/O.PONNAMMA,

4. BHAVANI, D/O.KUNJUPENNU,

                For Petitioner  :PUBLIC PROSECUTOR

                For Respondent  :SRI.S.SANTOSH KUMAR (PERUNAD)

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :27/02/2008

 O R D E R
                   K.P.BALACHANDRAN, J.
                  -------------------------------------------
                      Crl.A.No.1869 of 2004
                 -------------------------------------------
           Dated this the 27th day of February, 2008


                             JUDGMENT

This appeal is filed by the State assailing the acquittal of

respondents 1 to 4, under Section 248(1) Cr.P.C. of offence

punishable under Sections 447, 342, 323, 324 and 354 IPC read

with Section 34 thereof.

2. The prosecution case is that respondents 1 and 2

criminally trespassed into the residential compound wherein

PW1 and others were residing; that A1 threw stones on PW2, the

son of PW1, while PW2 was cutting the leaves of jack tree and

PW2, fell down and there upon A1 caught hold of the neck and

hair of PW1 and A2 caught hold of PW2, who fell down and

dragged him as also PW1 to their courtyard and tied them to the

window bar on the front side of their house by using a rope and

also the saree worn by PW1 and thereafter all accused 1 to 4

attacked both PWs 1 and 2 and caused hurt to them and also

outraged the modesty of PW1. The motive for the incident is

alleged to be the failure of PW1 to sign in the paper for

withdrawing the case against the accused for their having

CRL.A.NO.1869/2004 2

caused hurt to her.

3. On appearance of the respondents in the court below,

the learned Judicial First Class Magistrate, Adoor heard the

prosecution and the counsel for the respondents, perused the

prosecution records and framed charge against the respondents

for offence under Sections 447, 341, 323, 324 and 354 IPC read

with Section 34 thereof, read over and explained it to the

respondents and questioned them. There upon all the

respondents pleaded not guilty. Thereafter, the case was

transferred to the Court of Chief Judicial Magistrate vide order

of the CJM, Pathanamthitta.

4. Prosecution examined PWs 1 to 7 and got marked

Exts. P1 to P6. On the prosecution closing their evidence,

respondents were questioned by the CJM under Section 313

Cr.P.C. There upon they denied all incriminating circumstances

appearing in evidence against them and maintained that they are

innocent. According to A1, the defacto complainant was creating

problems one after another from 1990 onwards raising boundary

dispute and the survey authorities who came there were also

abused and a peaceful life was rendered impossible by the

CRL.A.NO.1869/2004 3

conduct of the defacto complainant and the members of her

family. However, the respondents did not adduce any evidence

in defence.

5. The court below considered the case in the light of the

evidence adduced as aforesaid, found that the evidence adduced

on the side of the prosecution is full of contradictions and

embellishments; that there is no convincing evidence to show

that the occurrence started within the property of PW1; that the

jack tree, from which PW2 is alleged to have been engaged in

cutting down branches and leaves, is not evidenced to be within

the property of PW1; and that the medical evidence does not

tally at all with the oral testimony of PWs 1 and 2 as regards the

injuries sustained to them and consequently disbelieved the case

of the prosecution and acquitted the respondents finding them

not guilty of the offences alleged. Hence this appeal by the State

challenging the acquittal of the respondents.

6. PW1 Sathiamma is the mother of PW2. Going by her

evidence when PW2 was cutting down branches of jack fruit tree

within their residential compound, A1 threw stones at him and

caused him to fall down and hearing the alarm raised by him,

CRL.A.NO.1869/2004 4

PW1 came rushing and then A1 and A2 drew PW2 forcibly

towards their house and in the courtyard, they tied him down

using a rope to the window bar and when PW1 came over, the

saree which was worn by her, was forcibly removed by A1 and

A2 and tied her also to the window bar using the said saree; that

A3 beat them using a stick and A4 beat them using a broom and

that by 10 a.m. on that day the people in the locality assembled

and got them released, but that, prior thereto, PW1 was also

compelled to sign in a paper for withdrawal of a case registered

against the accused, on an earlier occasion in connection with

their having caused bodily harm to PW1. According to PW1,

altogether there are four cases registered against the accused

for having caused bodily harm to her.

7. PW3 is an independent witness and he has

corroborated, to some extent, the testimonies of PWs 1 and 2,

though his evidence was not consistent with his statement given

to the police. PW4 Biju is a hostile witness and nothing could be

brought out from his testimony which would be of any use to the

prosecution. PW5 is the doctor, who examined both PW1 and

PW2 and recorded respectively Exts.P3 and P4 wound

CRL.A.NO.1869/2004 5

certificates in relation to the injuries sustained on the body

respectively of PWs 1 and 2. According to the doctor, as

certified by him in Ext.P3, the only injury found on the body of

PW1 is a contusion of 2×1 cm on lateral aspect of left forearm

and nothing else except that she complained of pain all over the

body and pain on abdomen. He has further given evidence that

on examination of PW2, no external injuries were found, though

he complained of pain on all over the body. The evidence

tendered by PWs 1 and 2 as regards the injuries sustained to

them, do not stand corroborated by the testimony of PW5, the

doctor who has recorded Exts. P3 and P4 wound certificates on

the same day of the occurrence. PW6, the investigating officer,

has admitted in cross examination that he has not noted in the

mahazar the existence of a jack fruit tree, from which, it was

alleged that PW2 was cutting branches. Though he has denied,

when asked as to whether he was not avoiding recording the

existence of jack fruit tree only because it was within the

property of the respondents, there is no convincing evidence that

any jack tree existed in the property of PW1. However, he has

not made any investigation at all as to whether property dispute

CRL.A.NO.1869/2004 6

existed between PWs 1 and 2 on one side and the accused on the

other. However, PW6, the Sub Inspector has admitted that there

are several cases wherein PW1 is the defacto complainant. PW7,

however, has not conducted any investigation in the case, but

has only prepared the final report verifying the case diary and

his evidence is not of any consequence in this case.

8. According to PW1, she was having injuries on her

legs, on her neck and on her elbow. When she was asked as to

whether the certificate issued by the doctor does show such

injuries, she asserted that she was having those injuries.

However, no explanation was forthcoming as to how it does not

find a place in the wound certificate. According to PW1, the

property of the respondents/accused is on the northern side of

her property and A2 is none other than the elder brother of her

late husband Damodaran and A1 is the wife of A2. According to

PW1, as per the partition deed, the respondents got 44 cents and

she got 25= cents and there are only stones which show the

boundary of the property. She further stated that her son (PW2)

climbed for about 18 feet on the jack tree and he was having a

fall there from on being pelted and he sustained several injuries

CRL.A.NO.1869/2004 7

and blood was flowing from his nose and mouth and he was

having injuries on his leg as well which was visible. She has no

explanation, when it was pointed out to her that the medical

records do not show any injury on the body of her son (PW2).

She stated in her testimony that A1 fisted on her lower abdomen

with his knee. But, when it was pointed out that no such

statement is seen made in Ext.P1, her answer was that she was

not aware as to what actually happened. Further, though she

stated in her evidence that the accused threatened her and her

son with dire consequence in case she did not give signed in the

blank paper, such a statement is not there in Ext.P1. She was

also not sure when asked in cross examination as to who drew

her son forcibly. According to her, that might have been done by

all. It is also pertinent to note that PW1 while giving Ext.P1 F.I.

statement had no case that PW3 had witnessed the occurrence.

On the whole, it is a case where there was practically no injury

on the body of PW2 and as regards injury on the body of PW1 it

was only a contusion of 2×1 cm. on the lateral aspect of left

forearm which PW5 has stated is an injury that can be caused by

contact with any hard object. Thus, the medical evidence does

CRL.A.NO.1869/2004 8

not corroborate the prosecution case at all. The testimony of

PWs 1 and 2 itself is not mutually corroborating and does not

support the prosecution case. It was in the above circumstances

that the court below found the respondents not guilty and

acquitted them of offences under Sections 447, 342, 323, 324

and 354 IPC read with Section 34 thereof.

9. The view taken by the court below is a plausible view

on the evidence adduced in the case. I do not see any reason to

take a contrary view in the nature of the evidence tendered by

PW1 and PW2 which are not convincing and their evidence also

does not stand corroborated by any independent evidence, and

even by the medical evidence.

10. In the circumstances, there is no reason to reverse

the order of acquittal passed by the court below and to enter into

a conviction of the accused for the offences with which they are

charged. This appeal has only to be dismissed in the

circumstances.

In the result, I dismiss this criminal appeal.

K.P.BALACHANDRAN, JUDGE
csl

LEAVE A REPLY

Please enter your comment!
Please enter your name here

* Copy This Password *

* Type Or Paste Password Here *