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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