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
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