{"id":28515,"date":"2008-02-27T00:00:00","date_gmt":"2008-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-represented-by-the-vs-sivanandan-on-27-february-2008"},"modified":"2017-12-08T10:44:19","modified_gmt":"2017-12-08T05:14:19","slug":"state-of-kerala-represented-by-the-vs-sivanandan-on-27-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-represented-by-the-vs-sivanandan-on-27-february-2008","title":{"rendered":"State Of Kerala Represented By The vs Sivanandan on 27 February, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
State Of Kerala Represented By The vs Sivanandan on 27 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 1869 of 2004()\n\n\n1. STATE OF KERALA REPRESENTED BY THE\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SIVANANDAN, S\/O.VASU, VADAKKEPPURAYIL\n                       ...       Respondent\n\n2. VASU, S\/O.RAMAN,\n\n3. RADHA D\/O.PONNAMMA,\n\n4. BHAVANI, D\/O.KUNJUPENNU,\n\n                For Petitioner  :PUBLIC PROSECUTOR\n\n                For Respondent  :SRI.S.SANTOSH KUMAR (PERUNAD)\n\nThe Hon'ble MR. Justice K.P.BALACHANDRAN\n\n Dated :27\/02\/2008\n\n O R D E R\n                   K.P.BALACHANDRAN, J.\n                  -------------------------------------------\n                      Crl.A.No.1869 of 2004\n                 -------------------------------------------\n           Dated this the 27th day of February, 2008\n\n\n                             JUDGMENT\n<\/pre>\n
     This appeal is filed by the State assailing the acquittal of<\/p>\n
respondents 1 to 4, under Section 248(1) Cr.P.C. of offence<\/p>\n
punishable under Sections 447, 342, 323, 324 and 354 IPC read<\/p>\n
with Section 34 thereof.\n<\/p>\n
     2.   The prosecution case is that respondents 1 and 2<\/p>\n
criminally trespassed into the residential compound wherein<\/p>\n
PW1 and others were residing; that A1 threw stones on PW2, the<\/p>\n
son of PW1, while PW2 was cutting the leaves of jack tree and<\/p>\n
PW2, fell down and there upon A1 caught hold of the neck and<\/p>\n
hair of PW1 and A2 caught hold of PW2, who fell down and<\/p>\n
dragged him as also PW1 to their courtyard and tied them to the<\/p>\n
window bar on the front side of their house by using a rope and<\/p>\n
also the saree worn by PW1 and thereafter all accused 1 to 4<\/p>\n
attacked both PWs 1 and 2 and caused hurt to them and also<\/p>\n
outraged the modesty of PW1. The motive for the incident is<\/p>\n
alleged to be the failure of PW1 to sign in the paper for<\/p>\n
withdrawing the case against the accused for their having<\/p>\n
CRL.A.NO.1869\/2004             2<\/span><\/p>\n
caused hurt to her.\n<\/p>\n
     3.    On appearance of the respondents in the court below,<\/p>\n
the learned Judicial First Class Magistrate, Adoor heard the<\/p>\n
prosecution and the counsel for the respondents, perused the<\/p>\n
prosecution records and framed charge against the respondents<\/p>\n
for offence under Sections 447, 341, 323, 324 and 354 IPC read<\/p>\n
with Section 34 thereof, read over and explained it to the<\/p>\n
respondents and questioned them. There upon all the<\/p>\n
respondents pleaded not guilty.     Thereafter, the case was<\/p>\n
transferred to the Court of Chief Judicial Magistrate vide order<\/p>\n
of the CJM, Pathanamthitta.\n<\/p>\n
     4.    Prosecution examined PWs 1 to 7 and got marked<\/p>\n
Exts. P1 to P6.    On the prosecution closing their evidence,<\/p>\n
respondents were questioned by the CJM under Section 313<\/p>\n
Cr.P.C. There upon they denied all incriminating circumstances<\/p>\n
appearing in evidence against them and maintained that they are<\/p>\n
innocent. According to A1, the defacto complainant was creating<\/p>\n
problems one after another from 1990 onwards raising boundary<\/p>\n
dispute and the survey authorities who came there were also<\/p>\n
abused and a peaceful life was rendered impossible by the<\/p>\n
CRL.A.NO.1869\/2004                3<\/span><\/p>\n
conduct of the defacto complainant and the members of her<\/p>\n
family. However, the respondents did not adduce any evidence<\/p>\n
in defence.\n<\/p>\n
      5.    The court below considered the case in the light of the<\/p>\n
evidence adduced as aforesaid, found that the evidence adduced<\/p>\n
on the side of the prosecution is full of contradictions and<\/p>\n
embellishments; that there is no convincing evidence to show<\/p>\n
that the occurrence started within the property of PW1; that the<\/p>\n
jack tree, from which PW2 is alleged to have been engaged in<\/p>\n
cutting down branches and leaves, is not evidenced to be within<\/p>\n
the property of PW1; and that the medical evidence does not<\/p>\n
tally at all with the oral testimony of PWs 1 and 2 as regards the<\/p>\n
injuries sustained to them and consequently disbelieved the case<\/p>\n
of the prosecution and acquitted the respondents finding them<\/p>\n
not guilty of the offences alleged. Hence this appeal by the State<\/p>\n
challenging the acquittal of the respondents.<\/p>\n
      6.    PW1 Sathiamma is the mother of PW2. Going by her<\/p>\n
evidence when PW2 was cutting down branches of jack fruit tree<\/p>\n
within their residential compound, A1 threw stones at him and<\/p>\n
caused him to fall down and hearing the alarm raised by him,<\/p>\n
CRL.A.NO.1869\/2004              4<\/span><\/p>\n
PW1 came rushing and then A1 and A2 drew PW2 forcibly<\/p>\n
towards their house and in the courtyard, they tied him down<\/p>\n
using a rope to the window bar and when PW1 came over, the<\/p>\n
saree which was worn by her, was forcibly removed by A1 and<\/p>\n
A2 and tied her also to the window bar using the said saree; that<\/p>\n
A3 beat them using a stick and A4 beat them using a broom and<\/p>\n
that by 10 a.m. on that day the people in the locality assembled<\/p>\n
and got them released, but that, prior thereto, PW1 was also<\/p>\n
compelled to sign in a paper for withdrawal of a case registered<\/p>\n
against the accused, on an earlier occasion in connection with<\/p>\n
their having caused bodily harm to PW1. According to PW1,<\/p>\n
altogether there are four cases registered against the accused<\/p>\n
for having caused bodily harm to her.\n<\/p>\n
     7.    PW3 is an independent witness and he has<\/p>\n
corroborated, to some extent, the testimonies of PWs 1 and 2,<\/p>\n
though his evidence was not consistent with his statement given<\/p>\n
to the police. PW4 Biju is a hostile witness and nothing could be<\/p>\n
brought out from his testimony which would be of any use to the<\/p>\n
prosecution. PW5 is the doctor, who examined both PW1 and<\/p>\n
PW2 and recorded respectively Exts.P3 and P4 wound<\/p>\n
CRL.A.NO.1869\/2004              5<\/span><\/p>\n
certificates in relation to the injuries sustained on the body<\/p>\n
respectively of PWs 1 and 2.      According to the doctor, as<\/p>\n
certified by him in Ext.P3, the only injury found on the body of<\/p>\n
PW1 is a contusion of 2×1 cm on lateral aspect of left forearm<\/p>\n
and nothing else except that she complained of pain all over the<\/p>\n
body and pain on abdomen. He has further given evidence that<\/p>\n
on examination of PW2, no external injuries were found, though<\/p>\n
he complained of pain on all over the body.        The evidence<\/p>\n
tendered by PWs 1 and 2 as regards the injuries sustained to<\/p>\n
them, do not stand corroborated by the testimony of PW5, the<\/p>\n
doctor who has recorded Exts. P3 and P4 wound certificates on<\/p>\n
the same day of the occurrence. PW6, the investigating officer,<\/p>\n
has admitted in cross examination that he has not noted in the<\/p>\n
mahazar the existence of a jack fruit tree, from which, it was<\/p>\n
alleged that PW2 was cutting branches. Though he has denied,<\/p>\n
when asked as to whether he was not avoiding recording the<\/p>\n
existence of jack fruit tree only because it was within the<\/p>\n
property of the respondents, there is no convincing evidence that<\/p>\n
any jack tree existed in the property of PW1. However, he has<\/p>\n
not made any investigation at all as to whether property dispute<\/p>\n
CRL.A.NO.1869\/2004              6<\/span><\/p>\n
existed between PWs 1 and 2 on one side and the accused on the<\/p>\n
other. However, PW6, the Sub Inspector has admitted that there<\/p>\n
are several cases wherein PW1 is the defacto complainant. PW7,<\/p>\n
however, has not conducted any investigation in the case, but<\/p>\n
has only prepared the final report verifying the case diary and<\/p>\n
his evidence is not of any consequence in this case.<\/p>\n
      8.    According to PW1, she was having injuries on her<\/p>\n
legs, on her neck and on her elbow. When she was asked as to<\/p>\n
whether the certificate issued by the doctor does show such<\/p>\n
injuries, she asserted that she was having those injuries.<\/p>\n
However, no explanation was forthcoming as to how it does not<\/p>\n
find a place in the wound certificate. According to PW1, the<\/p>\n
property of the respondents\/accused is on the northern side of<\/p>\n
her property and A2 is none other than the elder brother of her<\/p>\n
late husband Damodaran and A1 is the wife of A2. According to<\/p>\n
PW1, as per the partition deed, the respondents got 44 cents and<\/p>\n
she got 25= cents and there are only stones which show the<\/p>\n
boundary of the property. She further stated that her son (PW2)<\/p>\n
climbed for about 18 feet on the jack tree and he was having a<\/p>\n
fall there from on being pelted and he sustained several injuries<\/p>\n
CRL.A.NO.1869\/2004                7<\/span><\/p>\n
and blood was flowing from his nose and mouth and he was<\/p>\n
having injuries on his leg as well which was visible. She has no<\/p>\n
explanation, when it was pointed out to her that the medical<\/p>\n
records do not show any injury on the body of her son (PW2).<\/p>\n
She stated in her testimony that A1 fisted on her lower abdomen<\/p>\n
with his knee.      But, when it was pointed out that no such<\/p>\n
statement is seen made in Ext.P1, her answer was that she was<\/p>\n
not aware as to what actually happened. Further, though she<\/p>\n
stated in her evidence that the accused threatened her and her<\/p>\n
son with dire consequence in case she did not give signed in the<\/p>\n
blank paper, such a statement is not there in Ext.P1. She was<\/p>\n
also not sure when asked in cross examination as to who drew<\/p>\n
her son forcibly. According to her, that might have been done by<\/p>\n
all. It is also pertinent to note that PW1 while giving Ext.P1 F.I.<\/p>\n
statement had no case that PW3 had witnessed the occurrence.<\/p>\n
On the whole, it is a case where there was practically no injury<\/p>\n
on the body of PW2 and as regards injury on the body of PW1 it<\/p>\n
was only a contusion of 2×1 cm. on the lateral aspect of left<\/p>\n
forearm which PW5 has stated is an injury that can be caused by<\/p>\n
contact with any hard object. Thus, the medical evidence does<\/p>\n
CRL.A.NO.1869\/2004                8<\/span><\/p>\n
not corroborate the prosecution case at all. The testimony of<\/p>\n
PWs 1 and 2 itself is not mutually corroborating and does not<\/p>\n
support the prosecution case. It was in the above circumstances<\/p>\n
that the court below found the respondents not guilty and<\/p>\n
acquitted them of offences under Sections 447, 342, 323, 324<\/p>\n
and 354 IPC read with Section 34 thereof.\n<\/p>\n
     9.    The view taken by the court below is a plausible view<\/p>\n
on the evidence adduced in the case. I do not see any reason to<\/p>\n
take a contrary view in the nature of the evidence tendered by<\/p>\n
PW1 and PW2 which are not convincing and their evidence also<\/p>\n
does not stand corroborated by any independent evidence, and<\/p>\n
even by the medical evidence.\n<\/p>\n
     10. In the circumstances, there is no reason to reverse<\/p>\n
the order of acquittal passed by the court below and to enter into<\/p>\n
a conviction of the accused for the offences with which they are<\/p>\n
charged.     This appeal has only to be dismissed in the<\/p>\n
circumstances.\n<\/p>\n
     In the result, I dismiss this criminal appeal.<\/p>\n
                                  K.P.BALACHANDRAN, JUDGE
\ncsl<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/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-28515","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nState Of Kerala Represented By The vs Sivanandan on 27 February, 2008 - 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\/state-of-kerala-represented-by-the-vs-sivanandan-on-27-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Kerala Represented By The vs Sivanandan on 27 February, 2008 - 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