IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 676 of 2001(C)
1. STATE OF KERALA
... Petitioner
Vs
1. JACOB
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.K.C.PETER
The Hon'ble MR. Justice V.K.MOHANAN
Dated :01/12/2008
O R D E R
V.K. MOHANAN, J.
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Criminal Appeal No. 676 OF 2007
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Dated this the 01st day of December, 2008
J U D G M E N T
This is an appeal at the instance of the state, challenging
an order of acquittal passed by Court of the Judicial First Class
Magistrate, Ettumanoor in C.C 68/94.
2. The prosecution case is that due to the
previous enmity of the accused towards PW1 and 2, with the
common intention to cause injury to them, they obstructed PW1 and
2 who were traveling in a car at a place near to western gate of
semithery of St. Mary`s church at Kattachira in public road at 8.30
P.M. on 30.08.93. The further allegation is that the accused after
creating obstruction to the movement of the car by putting a jeep in
front of it, A1 and A2 forceably pulled out PW1 and 2 from the car
and wrongly restrained them and caught them on their shirt and
dhoti. It is also the case that A1 stabbed on the face of PW1
causing cut injury on lips; A2 hit with hands causing injury on his left
cheek and right side on neck; A3 hit on his right cheek with stone,
causing cut injury and when PW2 obstructed the same; the
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witnesses were threatened with death by all the accused and hit on
PW2 by A1 to A4 causing injuries on his right cheek and chest and
A5 uttered obscene words towards injured. On the basis of such
allegations crime No. 275/93 was registered in the Ettumannor police
station for the offences u/s 341, 323, 324, 294(b) and 506(i) r/w s.34
of IPC, After completing the investigation a final report was filed, on
the basis of which a formal charge was framed against accused,
which was read over and explained to them and they pleaded not
guilty. During the further trial, PW1 to PW9 were examined and
Ext.P1 to Ext.P7 were marked from the side of the prosecution. The
defence took a stand of total denial. According to them, it is a false
case preferred against them since they sent lawyer notice against
the prosecution witnesses for a case of defamation. Finally, the
court below found that prosecution has not succeeded in proving the
case alleged against the accused beyond shadow of reasonable
doubt and accordingly the accused acquitted of all the charges
levelled against them. It is the above order of acquittal challenged in
this appeal.
3. I have heard the learned Public Prosecutor and also
learned counsel for the respondent / accused. The trial court after
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elaborate consideration of the entire facts and circumstance and
evidence and material on record found that prosecution has
miserably failed to establish the case against accused. According to
the prosecution, the accused attacked PW1 and 2 under the belief
that it was at the instance of PW1, A2 was removed from his political
party and that incident provoked the accused to attack PW2 and
party. On the other hand, case set up by the defence is to the effect
that A2 had issued the lawyer notice to PW1, PW2 and one Thomas
Thazhappally alleging offence of defamation and it was that incident
provoked the prosecution witnesses to prefer this false case. From
the above version of prosecution witnesses and the accused, I am
unable to understand what provoked the state to file this appeal
against the order of acquittal.
4. The prosecution cited PW1 to 6 to prove the
occurrence. PW1 and 2 are the persons injured. PW3, PW5 and
PW6 turned hostile to the prosecution. PW4 is a relative of PW1 and
2 and according to him, he was not in the car. But he was in his
house at the time of the incident. The only remaining evidence is
that of PW1 and 2. The trial court after considering the evidence of
PW1 and 2 found that their evidence contains full of contradictions
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and embellishments and their evidence were not capable to inspire
confidence of the court. It is come out in evidence, the place of
occurrence was near to west gate of Semetheri of St. Mary`s church,
the injured went to the District Hospital after traveling about 17 Km,.
even though, there were Primary Health Centre and also Medical
College Hospital. No explanation was forthcoming from the part of
the prosecution witnesses. The learned counsel for the respondent
also stated that distance between place of occurrence and the
District Hospital is only 17 Km. As per the prosecution record, they
reached in the hospital after taking 4 hours. According to the learned
counsel the above fact itself is sufficient to cast doubt regarding the
veracity of the prosecution case itself. The learned counsel also
pointed out that though the prosecution case is to the effect that
PW1 to PW4 were intercepted when they were traveling in a car by
putting a jeep across the same, the said jeep was not recovered or
seized by the police and there is no explanation for the same. There
is no legal bar in admitting and acting upon the evidence of PW1 and
PW2, though they are interested and injured, if their evidence are
corroborated from independent sources. In the present case,
absolutely there is no independent evidence in support of version
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given by PW1 and 2. It is also brought out on record that
prosecution witnesses and the accused were on enemical terms. In
such a situation, unless and until the evidence of PW1 and 2
corroborated from a independent source no conviction can be
possible on the basis of interested testimony of PW1 and 2
especially their depositions are contradictory in nature on material
points. The court below has also considered the version given by
defence that PW7, doctor who issued Ext.P3 certificate and father
Thomas Thazhampilly are close friends. The other allegation, PW9
the Investigating Officer who laid charge against accused and
Thomas Thazhampilly are native of Ramapuram and they are
acquainted for the last several years. It is also the case of defence,
A2 has filed a complaint against Father Thomas Thazhampilly, PW1
and 2 in the trial court and before filing that complaint A2 issued a
lawyer notice to them. The trial court also found that driver of the
jeep and neighbours were not questioned by the police and the jeep
was also not seized by the Investigating Officer. The court below
also found that there are material contradictions in the evidence of
PW1 and 2 and after considering their evidence and medical
evidence, court found that as per Ext.P2 there is only contusion on
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the right cheek and upper lip of PW1. It is also found that similarly
there is no external injury on the body of PW2, as per Ext.P3 wound
certificate. The only injury noted is complaints of pain on the right
chest and lower abdomen. Thus considering, the above facts and
circumstances involved in this case, especially after evaluation of the
evidence on record in the absence of independent witnesses, the
court below found that the evidence of PW1, PW2, PW4 and PW7 is
unbelievable and accordingly held that prosecution has not
succeeded in proving the case against accused beyond shadow of
reasonable doubt. On appreciation and evaluation of materials on
record, I find no reason to take a different view so as to interfere with
the order of acquittal passed by the court below. Therefore, the
appeal fails.
5. In the result, there is no merit in the appeal and
accordingly the same is dismissed.
(V.K. MOHANAN, JUDGE)
KMD