{"id":19625,"date":"2009-03-13T00:00:00","date_gmt":"2009-03-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anilkumar-vs-aswakumar-on-13-march-2009"},"modified":"2017-06-25T18:43:22","modified_gmt":"2017-06-25T13:13:22","slug":"anilkumar-vs-aswakumar-on-13-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anilkumar-vs-aswakumar-on-13-march-2009","title":{"rendered":"Anilkumar vs Aswakumar on 13 March, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Anilkumar vs Aswakumar on 13 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1923 of 2004(A)\n\n\n1. ANILKUMAR, S\/O   K.S.MONY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. ASWAKUMAR, SUB INSPECTOR,\n                       ...       Respondent\n\n2. THAMPI, A.S.I. ANCHAN POLICE STATION,\n\n3. BABU, P.C.ANCHAL POLICE STATION,\n\n4. STATE OF KERALA,\n\n                For Petitioner  :SRI.P.V.GEORGE(PUTHIYIDAM)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :13\/03\/2009\n\n O R D E R\n                          V.K.MOHANAN, J.\n                ---------------------------------------------\n                      Crl.A.No. 1923 of 2004\n                ---------------------------------------------\n              Dated this the 13th day of March, 2009\n\n                           J U D G M E N T\n<\/pre>\n
            This is an appeal filed against the order of acquittal<\/p>\n
passed by the trial court at the instance of the complainant in a<\/p>\n
private complaint under Section 248(1) of the Code of Criminal<\/p>\n
Procedure in favour of respondent 1 to 3.                    The impugned<\/p>\n
judgment is dated 22.9.2004 of the Judicial First Class<\/p>\n
Magistrate Court-I, Punalur in C.C.No.709 of 2000.<\/p>\n
       2.   C.C.No.709 of 2000 was instituted upon a private<\/p>\n
complaint preferred by the appellant\/complainant for the<\/p>\n
offences punishable under Sections 452,323,325,326,294(b)<\/p>\n
read with Section 34 of I.P.C. The accused are Police Personnel<\/p>\n
attached to the Anchal Police Station. The first accused is the<\/p>\n
Sub Inspector of Police, Anchal Police Station and second<\/p>\n
accused is the Assistant Sub Inspector of Police and third<\/p>\n
accused is the Police Constable attached to the above Police<\/p>\n
Station.\n<\/p>\n
       3.   The case of the complainant is that the complainant<\/p>\n
and his wife were living separately for the last ten years and he<\/p>\n
is giving maintenance to her as per the order of the Family Court,<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                                 :-2-:\n<\/p>\n
Kollam. According to him, at the time of the complaint, he was<\/p>\n
residing in his family house named Santha Sadanam. According<\/p>\n
to the complainant, second and third accused came in that house<\/p>\n
on 1.7.1998 and the second accused told that there is a petition<\/p>\n
against him filed by his wife and the first accused wanted to meet<\/p>\n
the complainant. It is the further case that accordingly, accused<\/p>\n
Nos.2 and 3 caught the complainant and dragged him out of the<\/p>\n
house forcibly and put him in a jeep and took to the Police Station<\/p>\n
and pushed him into the room of the first accused. It is the<\/p>\n
further allegation that the first accused used obscene words to<\/p>\n
him and asked him why he is not transferring his right over the<\/p>\n
property to his wife and children and the first accused fisted on<\/p>\n
his lower lip. Thus, tooth on the lower chaps got uprooted and<\/p>\n
fell down. Thereafter, he had beaten the complainant with a lathi<\/p>\n
on his face below nose left side causing injury on the inner<\/p>\n
portion of upper lip uprooting two teeth on the upper jaw left.<\/p>\n
There was bleeding from the mouth and then the second accused<\/p>\n
also used obscene words to him and caught him by the collar of<\/p>\n
his shirt and pushed him out of the room to varandha and thus, all<\/p>\n
the accused committed the offences punishable under Sections<\/p>\n
323,324,326,294(b) read with Section 34 of I.P.C.<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                               :-3-:\n<\/p>\n
       4.    The sworn statement of the complainant and the<\/p>\n
witnesses were recorded. After considering the allegation in the<\/p>\n
complaint, sworn statements and the records produced, the case<\/p>\n
was taken on file and summons were issued to the accused. On<\/p>\n
appearance of the accused, the complainant was asked to<\/p>\n
produce the evidence and he examined PWs.1 to 3. Then, after<\/p>\n
hearing both the complainant and the accused, a formal charge<\/p>\n
was framed under Sections 452,323,325,326, 294(b) read with<\/p>\n
Section 34 I.P.C. and read over and explained the same to the<\/p>\n
accused and they pleaded not guilty. Thereafter, PWs.1 and 3<\/p>\n
were recalled and cross-examined. Ext.P1 wound certificate was<\/p>\n
marked.      After the prosecution evidence, the incriminating<\/p>\n
circumstances      which emerged     during    the   evidence    of<\/p>\n
complainant put to the accused under Section 313 of Cr.P.C. and<\/p>\n
they denied the same. No evidence either oral or documentary<\/p>\n
was produced from the side of the defence. On the basis of the<\/p>\n
rival pleadings and materials on record, the trial court considered<\/p>\n
six points for its consideration and finally found that the<\/p>\n
prosecution failed to prove the case beyond reasonable doubt<\/p>\n
and the accused were found not guilty and accordingly, they were<\/p>\n
acquitted under Section 248(1) of Cr.P.C. It is the above finding<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                                :-4-:\n<\/p>\n
and order of acquittal challenged in this appeal.<\/p>\n
       5.    I have heard learned counsel appearing for the<\/p>\n
appellant, Sri.P.V.George and Sri.Anchal.C.Vijayan, appearing<\/p>\n
for respondents 1 and 2.\n<\/p>\n
       6.    Learned counsel for the appellant submits that the<\/p>\n
order of acquittal passed by the court below is against the facts<\/p>\n
and circumstances involved in the case. According to the learned<\/p>\n
counsel, the order of acquittal was passed without assigning any<\/p>\n
valid reason. It is also argued that the approach of the trial court<\/p>\n
that PWs.1 and 3 are interested witnesses and therefore, their<\/p>\n
evidences cannot be believed is contrary to the accepted<\/p>\n
principles. It is also submitted that the finding of the court below<\/p>\n
regarding the non-examination of independent witnesses is<\/p>\n
without any basis. Therefore, according to the learned counsel,<\/p>\n
the impugned judgment is liable to be set aside and the<\/p>\n
respondents\/accused are liable to be convicted for the offence<\/p>\n
charged against them.\n<\/p>\n
       7.    Per contra, learned counsel appearing for the<\/p>\n
respondents submits that no case is made out to interfere with<\/p>\n
the order of acquittal passed by the trial court. According to the<\/p>\n
learned counsel, going by the impugned judgment, the falsity of<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                                :-5-:\n<\/p>\n
the case of the complainant can be seen. It is also submitted by<\/p>\n
the respondents that except the interested version of PWs.1 and<\/p>\n
3, there is no independent evidence and the evidence of PWs.1<\/p>\n
and 3 are not free from doubt and the same are contradictory in<\/p>\n
nature.    The medical evidence is also not helpful for the<\/p>\n
complainant to substantiate its case.     Thus, according to the<\/p>\n
learned counsel, the trial court has come into a conclusion on the<\/p>\n
basis of the evidence and materials on record and no interference<\/p>\n
is warranted.\n<\/p>\n
       8.    I have carefully considered the contentions advanced<\/p>\n
by both the counsel and also perused the evidence and materials<\/p>\n
on record.     The specific case of the complainant is that on<\/p>\n
1.7.1998 at about 10 a.m., accused Nos.2 and 3 came to the<\/p>\n
residential house of the complainant where he resides along with<\/p>\n
his mother PW3, and entered into the house and forcibly taken<\/p>\n
the complainant and dragged him towards the road and pushed<\/p>\n
him into the jeep by using obscene words. It is the further case of<\/p>\n
PW1\/the complainant that accused Nos.2 and 3 pushed the<\/p>\n
complainant into the room where the first accused was sitting and<\/p>\n
then the first accused, by using obscene words, fisted on his<\/p>\n
lower jaw and his tooth on the lower chaps was uprooted.<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                                :-6-:\n<\/p>\n
According to PW1, the first respondent had beaten him below his<\/p>\n
nose with a lathi and two teeth on the upper jaw were uprooted<\/p>\n
and fell down. Thereafter, accused Nos.2 and 3 pushed him out<\/p>\n
of the room to the verandah as was asked by the first accused. It<\/p>\n
was the further case of PW1 that thereafter, his mother and<\/p>\n
others took him to the hospital where he was undergone<\/p>\n
treatment for 14 days.\n<\/p>\n
       9.    It has come out in evidence that his wife filed a<\/p>\n
petition before the Family Court claiming maintenance which was<\/p>\n
allowed ordering to pay Rs.500\/- per month. According to the<\/p>\n
complainant, the accused inflicted injuries on him under the<\/p>\n
influence of his wife.     The evidence of PW1 and his claim<\/p>\n
regarding the alleged manhandling by A1, A2 and A3 are not free<\/p>\n
from doubt. First of all, the case of the complainant that he was<\/p>\n
residing along with his mother PW3 in the house shown in the<\/p>\n
complaint, is proved as false. It is established that he is residing<\/p>\n
in a separate room and not in the house along with PW3 from<\/p>\n
where he was alleged to have forcibly taken and dragged into the<\/p>\n
jeep.    Regarding the above incident of forcibly      taking and<\/p>\n
dragging into the jeep, there is no independent evidence at all,<\/p>\n
even though it is brought on record that near the house of PW3,<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                                :-7-:\n<\/p>\n
there was a High School and a B.Ed College. The trial court also<\/p>\n
found that even according to PW3, she was in the kitchen at the<\/p>\n
time of the alleged incident. Therefore, there was no cogent<\/p>\n
evidence to show the first part of the alleged incident. Regarding<\/p>\n
the second part of the incident also, there is no convincing and<\/p>\n
cogent evidence. According to PW1, he was forcibly taken and<\/p>\n
dragged into the police jeep, pushed him to the room where the<\/p>\n
first accused was sitting and thereof, the first accused inflicted<\/p>\n
injuries on his body by using lathi and finally, when second and<\/p>\n
third accused pushed him out of the room to the varandha, PW3<\/p>\n
came and took him to the hospital. The learned Magistrate of the<\/p>\n
trial court, who had got the privilege of observing the demeanour<\/p>\n
of the witnesses, came to the conclusion that it is practically<\/p>\n
impossible to take all these atrocities on PW1 before PW3<\/p>\n
reached in the Police Station. The trial court also found that the<\/p>\n
claim of PW3, that she rushed to the Police Station and when she<\/p>\n
reached there, she saw PW1 being pushed to varandha from the<\/p>\n
room of the first accused by accused Nos.2 and 3, cannot be<\/p>\n
believed in the circumstances alleged in the case. PW3 is an<\/p>\n
aged woman and according to her, she was busy in the kitchen<\/p>\n
when accused Nos.2 and 3 took PW1 in a jeep. They took PW1<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                                 :-8-:\n<\/p>\n
directly to the Police Station and produced him before the first<\/p>\n
accused. It is thereafter, according to PW1, the first accused<\/p>\n
committed the atrocities on PW1. According to the trial court, the<\/p>\n
overt act alleged is that the first accused asked PW1 why he is<\/p>\n
not transferring his right over the property to his wife and children,<\/p>\n
and fisted on his face and then the other accused had beaten him<\/p>\n
with a lathi.    The claim of PW1 is that the first accused had<\/p>\n
imparted one fisting and one beating with lathi on his face and<\/p>\n
then the other accused pushed him out, for which, according to<\/p>\n
the trial court, not much time is required for completing the above<\/p>\n
and therefore, the claim of PW3 that she followed PW1 and<\/p>\n
happened to witness PW1 being pushed out of the room of the<\/p>\n
first accused, according to the trial court, cannot be true or<\/p>\n
probable. So, the trial court found that the claim of PW3 that she<\/p>\n
saw PW1 being pushed out of the room of the first accused by<\/p>\n
accused Nos.2 and 3, cannot be taken as circumstance<\/p>\n
corroborating PW1.\n<\/p>\n
       10. In paragraph 15 of the judgment, the trial court has<\/p>\n
considered the overt act alleged       by PW1       against the first<\/p>\n
accused and considered the entire incident. The trial court found<\/p>\n
that the above case of PW1\/complainant cannot be believed. As<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                               :-9-:\n<\/p>\n
per the evidence of PW1, during the chief examination, he has<\/p>\n
stated that the first accused had fisted on his lower jaw uprooting<\/p>\n
one tooth from lower jaw. It is his further case that then, the first<\/p>\n
accused had beaten him below his nose with a lathi causing loss<\/p>\n
of two teeth. But, during the cross examination, he had stated<\/p>\n
that the first accused had beaten him with a lathi on his lower jaw<\/p>\n
and he lost two teeth from the lower jaw. It is also his case that<\/p>\n
he had not lost any tooth from his upper jaw though he was<\/p>\n
beaten with lathi and the statement to that effect given in the<\/p>\n
complaint is not true. So regarding the incident, the number of<\/p>\n
alleged blows and the loss of teeth, there is full of contradiction in<\/p>\n
the evidence of PW1. In this juncture, it is relevant to note the<\/p>\n
defence set up by the accused. According to the defence, the<\/p>\n
complainant was under treatment for cancer in his mouth and the<\/p>\n
loss of teeth occurred, as a result of that disease and its<\/p>\n
treatment. PW2, the Doctor admitted that loss of teeth can be<\/p>\n
caused due to cancer on mouth.          Going by the evidence of<\/p>\n
PW2, it can be seen that he examined PW1\/the complainant on<\/p>\n
the very same day at 11 a.m., but PW2 did not note any bleeding<\/p>\n
from the mouth or bleeding injury. According to PW2, he had just<\/p>\n
noted the avulsion fracture of three teeth and small multiple<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                                  :-10-:\n<\/p>\n
abrasion on front of neck. Thus, the trial court observed that if<\/p>\n
one was beaten with a lathi on his face below nose with force,<\/p>\n
sufficient to uproot two teeth, definitely some external injury would<\/p>\n
be caused and there was possibility of injury inside the lips, as<\/p>\n
that portion comes into contact with the tooth uprooted. But, in<\/p>\n
the present case, no such injury was noted. From the above<\/p>\n
discussion, it is crystal clear that the allegation of the complainant<\/p>\n
that he was manhandled in the Police station by the first accused,<\/p>\n
as a result of which, he sustained injuries, is false. In the light of<\/p>\n
the above facts and circumstances, the trial court has correctly<\/p>\n
assessed the entire evidence and appreciated the evidence in its<\/p>\n
true perspective and I find no reason to interfere with such<\/p>\n
finding.\n<\/p>\n
       11.    Going by the entire materials and evidence on<\/p>\n
record, the falsity of the case of the complainant is seen from the<\/p>\n
very face of records.       After an elaborate discussion of the<\/p>\n
materials and evidence on record, the trial court found that the<\/p>\n
complainant failed to prove his case beyond reasonable doubt.<\/p>\n
On the basis of the said conclusion, the accused were found not<\/p>\n
guilty and no ground was made out to interfere with such finding<\/p>\n
of the court below.\n<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                                 :-11-:\n<\/p>\n
       12.   In the decision reported in Ghurey Lal v. State of<\/p>\n
U.P.<\/a> [2008(4) KLT SN 17 (C.No.17), the Apex Court has laid<\/p>\n
down certain circumstances under which the appellate court can<\/p>\n
interfere with the order of acquittal.        It was also held that<\/p>\n
presumption of innocence of accused is reinforced by order of<\/p>\n
acquittal and therefore, unless there are substantial and<\/p>\n
compelling reasons, the appellate court, while exercising the<\/p>\n
appellate jurisdiction, shall not interfere with the order of acquittal.<\/p>\n
Reiterating the same position, the Apex Court has held in Batcu<\/p>\n
Venkateshwarlu and Ors. v. Public Prosecutor, High Court of<\/p>\n
A.P.<\/a> [2009(1) Supreme 67] that in the case of acquittal, there is a<\/p>\n
double presumption in favour of the accused and there must be<\/p>\n
substantial and compelling reasons for holding that the trial court<\/p>\n
was wrong and then only, the appellate court can, while<\/p>\n
exercising the appellate jurisdiction, interfere with the order of<\/p>\n
acquittal passed by the trial court. On a perusal of the trial court<\/p>\n
judgment and in the light of the facts and circumstances indicated<\/p>\n
above, I find no reason to hold that the finding of the trial court<\/p>\n
was wrong.\n<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                               :-12-:\n<\/p>\n
               In the result, there is no merit in the appeal.<\/p>\n
Accordingly, the appeal is dismissed.\n<\/p>\n<\/p>\n
                                        V.K.Mohanan,
\n                                           Judge<\/p>\n
MBS\/<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                          :-13-:\n<\/p>\n<\/p>\n
                                         V.K.MOHANAN, JJ.\n<\/p>\n
                          ——————————————–<\/p>\n
                                  Crl.A.NO. OF 200<\/span>\n<\/p>\n
                         ——————————————–<\/p>\n
                                      J U D G M E N T<\/p>\n
                                  DATED: -1-2009<\/p>\n
Crl.A.No. 1923 of 2004<\/p>\n
                          :-14-:<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Anilkumar vs Aswakumar on 13 March, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1923 of 2004(A) 1. ANILKUMAR, S\/O K.S.MONY, … Petitioner Vs 1. ASWAKUMAR, SUB INSPECTOR, … Respondent 2. THAMPI, A.S.I. ANCHAN POLICE STATION, 3. BABU, P.C.ANCHAL POLICE STATION, 4. STATE OF KERALA, For Petitioner :SRI.P.V.GEORGE(PUTHIYIDAM) For Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-19625","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAnilkumar vs Aswakumar on 13 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/anilkumar-vs-aswakumar-on-13-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anilkumar vs Aswakumar on 13 March, 2009 - 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