IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH MARCH, 2009 / 22ND PHALGUNA, 1930 CRL.A.No. 1923 of 2004 (A) (CC.709/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR) .................... APPELLANT/COMPLAINANT: ----------------------------------------- ANILKUMAR, S/O.K.S.MONY, BUNGLAMKUNNU PUTHEN VEEDU, THAZHAMEL, ANCHAL. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENTS: ---------------------- 1. ASWAKUMAR, SUB INSPECTOR, ANCHAL POLICE STATION, ANCHAL P.O., NOW EMPLOYED AS SUB INSPECTOR, CHAVAKKAD POLICE STATION, TRISSUR DISTRICT. 2. THAMPI, A.S.I. ANCHAN POLICE STATION, NOW EMPLOYED AS ANCHALUMOODU POLICE STATION, KOLLAM DISTRICT. 3. BABU, P.C., ANCHAL POLICE STATION, ANCHAL P.O., NOW EMPLOYED AS POLICE CONSTABLE, KULATHUPUZHA POLICE STATION, KOLLAM DISTRICT. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. BY ADV. SRI.ANCHAL C.VIJAYAN FOR R1 AND R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 1923 of 2004 --------------------------------------------- Dated this the 13th day of March, 2009 J U D G M E N T This is an appeal filed against the order of acquittal passed by the trial court at the instance of the complainant in a private complaint under Section 248(1) of the Code of Criminal Procedure in favour of respondent 1 to 3. The impugned judgment is dated 22.9.2004 of the Judicial First Class Magistrate Court-I, Punalur in C.C.No.709 of 2000. 2. C.C.No.709 of 2000 was instituted upon a private complaint preferred by the appellant/complainant for the offences punishable under Sections 452,323,325,326,294(b) read with Section 34 of I.P.C. The accused are Police Personnel attached to the Anchal Police Station. The first accused is the Sub Inspector of Police, Anchal Police Station and second accused is the Assistant Sub Inspector of Police and third accused is the Police Constable attached to the above Police Station. 3. The case of the complainant is that the complainant and his wife were living separately for the last ten years and he is giving maintenance to her as per the order of the Family Court, Crl.A.No. 1923 of 2004 :-2-: Kollam. According to him, at the time of the complaint, he was residing in his family house named Santha Sadanam. According to the complainant, second and third accused came in that house on 1.7.1998 and the second accused told that there is a petition against him filed by his wife and the first accused wanted to meet the complainant. It is the further case that accordingly, accused Nos.2 and 3 caught the complainant and dragged him out of the house forcibly and put him in a jeep and took to the Police Station and pushed him into the room of the first accused. It is the further allegation that the first accused used obscene words to him and asked him why he is not transferring his right over the property to his wife and children and the first accused fisted on his lower lip. Thus, tooth on the lower chaps got uprooted and fell down. Thereafter, he had beaten the complainant with a lathi on his face below nose left side causing injury on the inner portion of upper lip uprooting two teeth on the upper jaw left. There was bleeding from the mouth and then the second accused also used obscene words to him and caught him by the collar of his shirt and pushed him out of the room to varandha and thus, all the accused committed the offences punishable under Sections 323,324,326,294(b) read with Section 34 of I.P.C. Crl.A.No. 1923 of 2004 :-3-: 4. The sworn statement of the complainant and the witnesses were recorded. After considering the allegation in the complaint, sworn statements and the records produced, the case was taken on file and summons were issued to the accused. On appearance of the accused, the complainant was asked to produce the evidence and he examined PWs.1 to 3. Then, after hearing both the complainant and the accused, a formal charge was framed under Sections 452,323,325,326, 294(b) read with Section 34 I.P.C. and read over and explained the same to the accused and they pleaded not guilty. Thereafter, PWs.1 and 3 were recalled and cross-examined. Ext.P1 wound certificate was marked. After the prosecution evidence, the incriminating circumstances which emerged during the evidence of complainant put to the accused under Section 313 of Cr.P.C. and they denied the same. No evidence either oral or documentary was produced from the side of the defence. On the basis of the rival pleadings and materials on record, the trial court considered six points for its consideration and finally found that the prosecution failed to prove the case beyond reasonable doubt and the accused were found not guilty and accordingly, they were acquitted under Section 248(1) of Cr.P.C. It is the above finding Crl.A.No. 1923 of 2004 :-4-: and order of acquittal challenged in this appeal. 5. I have heard learned counsel appearing for the appellant, Sri.P.V.George and Sri.Anchal.C.Vijayan, appearing for respondents 1 and 2. 6. Learned counsel for the appellant submits that the order of acquittal passed by the court below is against the facts and circumstances involved in the case. According to the learned counsel, the order of acquittal was passed without assigning any valid reason. It is also argued that the approach of the trial court that PWs.1 and 3 are interested witnesses and therefore, their evidences cannot be believed is contrary to the accepted principles. It is also submitted that the finding of the court below regarding the non-examination of independent witnesses is without any basis. Therefore, according to the learned counsel, the impugned judgment is liable to be set aside and the respondents/accused are liable to be convicted for the offence charged against them. 7. Per contra, learned counsel appearing for the respondents submits that no case is made out to interfere with the order of acquittal passed by the trial court. According to the learned counsel, going by the impugned judgment, the falsity of Crl.A.No. 1923 of 2004 :-5-: the case of the complainant can be seen. It is also submitted by the respondents that except the interested version of PWs.1 and 3, there is no independent evidence and the evidence of PWs.1 and 3 are not free from doubt and the same are contradictory in nature. The medical evidence is also not helpful for the complainant to substantiate its case. Thus, according to the learned counsel, the trial court has come into a conclusion on the basis of the evidence and materials on record and no interference is warranted. 8. I have carefully considered the contentions advanced by both the counsel and also perused the evidence and materials on record. The specific case of the complainant is that on 1.7.1998 at about 10 a.m., accused Nos.2 and 3 came to the residential house of the complainant where he resides along with his mother PW3, and entered into the house and forcibly taken the complainant and dragged him towards the road and pushed him into the jeep by using obscene words. It is the further case of PW1/the complainant that accused Nos.2 and 3 pushed the complainant into the room where the first accused was sitting and then the first accused, by using obscene words, fisted on his lower jaw and his tooth on the lower chaps was uprooted. Crl.A.No. 1923 of 2004 :-6-: According to PW1, the first respondent had beaten him below his nose with a lathi and two teeth on the upper jaw were uprooted and fell down. Thereafter, accused Nos.2 and 3 pushed him out of the room to the verandah as was asked by the first accused. It was the further case of PW1 that thereafter, his mother and others took him to the hospital where he was undergone treatment for 14 days. 9. It has come out in evidence that his wife filed a petition before the Family Court claiming maintenance which was allowed ordering to pay Rs.500/- per month. According to the complainant, the accused inflicted injuries on him under the influence of his wife. The evidence of PW1 and his claim regarding the alleged manhandling by A1, A2 and A3 are not free from doubt. First of all, the case of the complainant that he was residing along with his mother PW3 in the house shown in the complaint, is proved as false. It is established that he is residing in a separate room and not in the house along with PW3 from where he was alleged to have forcibly taken and dragged into the jeep. Regarding the above incident of forcibly taking and dragging into the jeep, there is no independent evidence at all, even though it is brought on record that near the house of PW3, Crl.A.No. 1923 of 2004 :-7-: there was a High School and a B.Ed College. The trial court also found that even according to PW3, she was in the kitchen at the time of the alleged incident. Therefore, there was no cogent evidence to show the first part of the alleged incident. Regarding the second part of the incident also, there is no convincing and cogent evidence. According to PW1, he was forcibly taken and dragged into the police jeep, pushed him to the room where the first accused was sitting and thereof, the first accused inflicted injuries on his body by using lathi and finally, when second and third accused pushed him out of the room to the varandha, PW3 came and took him to the hospital. The learned Magistrate of the trial court, who had got the privilege of observing the demeanour of the witnesses, came to the conclusion that it is practically impossible to take all these atrocities on PW1 before PW3 reached in the Police Station. The trial court also found that the claim of PW3, that she rushed to the Police Station and when she reached there, she saw PW1 being pushed to varandha from the room of the first accused by accused Nos.2 and 3, cannot be believed in the circumstances alleged in the case. PW3 is an aged woman and according to her, she was busy in the kitchen when accused Nos.2 and 3 took PW1 in a jeep. They took PW1 Crl.A.No. 1923 of 2004 :-8-: directly to the Police Station and produced him before the first accused. It is thereafter, according to PW1, the first accused committed the atrocities on PW1. According to the trial court, the overt act alleged is that the first accused asked PW1 why he is not transferring his right over the property to his wife and children, and fisted on his face and then the other accused had beaten him with a lathi. The claim of PW1 is that the first accused had imparted one fisting and one beating with lathi on his face and then the other accused pushed him out, for which, according to the trial court, not much time is required for completing the above and therefore, the claim of PW3 that she followed PW1 and happened to witness PW1 being pushed out of the room of the first accused, according to the trial court, cannot be true or probable. So, the trial court found that the claim of PW3 that she saw PW1 being pushed out of the room of the first accused by accused Nos.2 and 3, cannot be taken as circumstance corroborating PW1. 10. In paragraph 15 of the judgment, the trial court has considered the overt act alleged by PW1 against the first accused and considered the entire incident. The trial court found that the above case of PW1/complainant cannot be believed. As Crl.A.No. 1923 of 2004 :-9-: per the evidence of PW1, during the chief examination, he has stated that the first accused had fisted on his lower jaw uprooting one tooth from lower jaw. It is his further case that then, the first accused had beaten him below his nose with a lathi causing loss of two teeth. But, during the cross examination, he had stated that the first accused had beaten him with a lathi on his lower jaw and he lost two teeth from the lower jaw. It is also his case that he had not lost any tooth from his upper jaw though he was beaten with lathi and the statement to that effect given in the complaint is not true. So regarding the incident, the number of alleged blows and the loss of teeth, there is full of contradiction in the evidence of PW1. In this juncture, it is relevant to note the defence set up by the accused. According to the defence, the complainant was under treatment for cancer in his mouth and the loss of teeth occurred, as a result of that disease and its treatment. PW2, the Doctor admitted that loss of teeth can be caused due to cancer on mouth. Going by the evidence of PW2, it can be seen that he examined PW1/the complainant on the very same day at 11 a.m., but PW2 did not note any bleeding from the mouth or bleeding injury. According to PW2, he had just noted the avulsion fracture of three teeth and small multiple Crl.A.No. 1923 of 2004 :-10-: abrasion on front of neck. Thus, the trial court observed that if one was beaten with a lathi on his face below nose with force, sufficient to uproot two teeth, definitely some external injury would be caused and there was possibility of injury inside the lips, as that portion comes into contact with the tooth uprooted. But, in the present case, no such injury was noted. From the above discussion, it is crystal clear that the allegation of the complainant that he was manhandled in the Police station by the first accused, as a result of which, he sustained injuries, is false. In the light of the above facts and circumstances, the trial court has correctly assessed the entire evidence and appreciated the evidence in its true perspective and I find no reason to interfere with such finding. 11. Going by the entire materials and evidence on record, the falsity of the case of the complainant is seen from the very face of records. After an elaborate discussion of the materials and evidence on record, the trial court found that the complainant failed to prove his case beyond reasonable doubt. On the basis of the said conclusion, the accused were found not guilty and no ground was made out to interfere with such finding of the court below. Crl.A.No. 1923 of 2004 :-11-: 12. In the decision reported in Ghurey Lal v. State of U.P. [2008(4) KLT SN 17 (C.No.17), the Apex Court has laid down certain circumstances under which the appellate court can interfere with the order of acquittal. It was also held that presumption of innocence of accused is reinforced by order of acquittal and therefore, unless there are substantial and compelling reasons, the appellate court, while exercising the appellate jurisdiction, shall not interfere with the order of acquittal. Reiterating the same position, the Apex Court has held in Batcu Venkateshwarlu and Ors. v. Public Prosecutor, High Court of A.P. [2009(1) Supreme 67] that in the case of acquittal, there is a double presumption in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong and then only, the appellate court can, while exercising the appellate jurisdiction, interfere with the order of acquittal passed by the trial court. On a perusal of the trial court judgment and in the light of the facts and circumstances indicated above, I find no reason to hold that the finding of the trial court was wrong. Crl.A.No. 1923 of 2004 :-12-: In the result, there is no merit in the appeal. Accordingly, the appeal is dismissed. V.K.Mohanan, Judge MBS/ Crl.A.No. 1923 of 2004 :-13-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N T DATED: -1-2009 Crl.A.No. 1923 of 2004 :-14-: