IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 CRL.A.No. 315 of 2002() -------------------------------- CC.261/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... APPELLANT(S):COMPLAINANT: ------------------------------------ VISWANATHAN, S/O. VAVA, CHANIVELIYIL VEEDU, WARD NO.VIII, MUHAMMA P.O., CHERTHALA. BY ADV. MR.V.L.SHENOY RESPONDENT(S):ACCUSED AND STATE: ---------------------------------- 1. SUGATHAN, S/O. RAJAPPAN VADAKKEVELI VEEDU, WARD NO.VIII, MUHAMMA P.O. 2. SIVADASAN, S/O. RAJAPPAN, VADAKKEVELI VEEDU, WARD NO.VIII, MUHAMMA P.O. 3. PADMAKSHY, W/O. RAJAPPAN, VADAKKEVELI VEEDU, WARD NO.VIII, MUHAMMA P.O. 4. RAJAPPAN, S/O. GOVINDAN, VADAKKEVELI VEEDU, WARD NO.VIII, MUHAMMA P.O. 5. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULA BY MR.C.K.ABDUL RAHIM FOR R1 TO 4 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.315 OF 2002 ------------------------------ Dated this the 29th day of May, 2009 JUDGMENT This appeal is preferred against the order of acquittal in C.C.No.261/1998 of the JFCM-II, Cherthala. The brief facts necessary for the disposal are stated as follows: 2. It is the case of the complainant that on hearing a hue and cry regarding the demolition of a wall in his newly purchased property, he along with his son rushed to the spot at 6.30 a.m on 3.1.1997. At that time he found the accused demolishing the wall and on seeing them, they ran away from the place of incident and the complainant and his son followed them. While so, the first accused with an iron bar hit on the left side of the head of the complainant and the second accused chopped his son with a sword stick and the third accused beat the son with a wooden rafter and the 4th accused threw a wooden stick on the complainant and hit on his toe and as a result of these, both of them sustained injuries and they were admitted in a hospital. The police 2 Crl.A.No.315/02 initiated a case on the basis of the first information given. But after the investigation they exonerated the present third accused from the array of the accused and therefore, the complainant had filed this private complaint making all the four as accused. The case of the defence appears to be that it was the complainant and his son who had attacked them and had made them to sustain the injuries. It is only to escape from the same that they had foisted the false case. In the lower court PWs1 to 6 were examined, Exts.P1 to P4(a) and D1 and D1(a) were marked. On analysis of the materials, the trial court came to the conclusion that the complainant had not succeeded in proving the guilt of the accused and therefore acquitted the accused. It is against that decision, the complainant has come up in appeal after obtaining permission to file appeal. The point that arises for determination is (1) whether there are grounds to interfere with the decision rendered by the court below(2) is the judgment of the trial court liable to be set aside. 3. Points 1 and 2: 3 Crl.A.No.315/02 The unfortunate neighbours had become enmical and large number of litigations are the out product of the enmity. One such product is the present case. It is the case of the complainant that on 3..1.1997 at about 6.30 a.m when the accused were engaged in demolishing the wall of the complainant, hue and cry was made by PWs 3 and 4 which made the complainant and his son proceeding to the spot and on seeing them, the accused ran away from the place and when PWs1 and 2 chased them they were attacked mercilessly, i.e., PW1 was beaten with an iron rod by A1 and was thrown by a stick on the toe by A4 and that PW2 was chopped with a sword stick by A2 and was beaten on the back by A3 with a wooden rafter. According to them, they went to the hospital immediately and thereafter prosecution has been launched. So the crux of the matter depends upon the acceptability of the evidence tendered in this case as by Pws 1 to 4. It has to be stated that PWs 1 to 4 did not turn hostile. Therefore, the question to be considered is how far their evidence is intrinsically reliable or inherently probable in 4 Crl.A.No.315/02 the backdrop of the circumstances brought out in the case. At the outset, it has to be stated that the complainant and his son had rushed to the place of the incident and on seeing them, the accused allegedly had ran away from the place. There is no evidence anywhere tendered by Pws 1 to 4 to the effect that in the process of running, they have collected any weapon to attack these persons. It has to be also remembered that the chasing was done by the complainant and not vice versa. Similarly, the evidence of PWs 3 and 4, according to the accused, are the workers of PWs 1 and 2. The place of incident is a factory or the premises of a factory. It is admitted by Pw2 in evidence that there is a half wall to the factory. When confronted with the difficult situation, PW1 would say that for a distance of 75 meters there is no coverage. But these are all matters which require intrinsic evidence and it is not available. It has also to be remembered that the accused have got a case that Pws 1 and 2 had attacked them on the eventful date and they sustained injuries and a criminal case has been initiated. So an incident as 5 Crl.A.No.315/02 occurred is proved. But who is the aggressor and whose version is more probable is the disputed factor. The evidence of Pw1 when glanced through would show that it is not totally acceptable. According to him, he had run a distance of 100 meters and it was at that time that A1 had turned round and beaten him. According to him, he had not seen the accused running away with any weapon. According to him, he saw the weapons only when he was beaten. It is also deposed by him that the distance between them was only five meters. So, if really there was some weapon with them at the time of running away there is absolutely no difficulty for a person to see the same. It is further stated by him that he has no intention to do anything at the time of running behind the accused. So, this sort of evidence would reveal that the evidence of Pw1 is not very reliable. Then turning to the evidence of PW2, it is stated by him that he had seen the iron rod used by the accused to beat PW1 and it had a length of 2 feet and that the sword stick was having a length of one foot. But they were never able to point out nor the 6 Crl.A.No.315/02 investigating agency had taken the alleged material objects used for inflicting the alleged injuries. According to him, the statement given to the doctor that he had been beaten with a sword stick and a cycle chain, is not proper and the doctor had recorded it incorrectly. This also cannot be true as the doctor does not have a personal knowledge and he has only recorded what has been spoken to by the person. There were 100 persons who were, according to them, assembled there at least immediately after the incident. Non of them had been examined or cited. So, the evidence of Pw2 also does not inspire confidence in me regarding the incident. It is also his version that the incident had taken place in the factory premises. He had spoken about the half wall which would indicate that the vision of the other people certainly might have been obstructed. It is specifically stated by him that he had seen the accused running away and at that time he had not seen any weapons with them and he had further deposed that he had not seen the accused taking any weapons at the time of running. So, when a person is not able to see any 7 Crl.A.No.315/02 weapon at the time of running and not seeing any weapon being collected in the course of running then the story that the persons have attacked with the weapons cannot be accepted as is found by the court below. The evidence of PWs 3 and 4 also would show that all is not well with their evidence and they are interested in the complaint. I am conscious of the fact that the interestedness of a witness is not a ground to discard the evidence of a witness. But when a witness is interested, the evidence of that witness requires material scrutiny to accept it. The material scrutiny would show that their evidence is not acceptable and that in some portions they have even stated that they have seen the weapons used when PWs 1 and 2 does not state about the same. It was PWs 1 and 2 who chased them and who had run to a distance of 100 meters. So even by the version of PW1, there were approximately 330 feet away from the wall which was demolished. So, as correctly held by the court below, the evidence of PWs 3 and 4 also cannot be accepted. Then it has also to be held that the accused had 8 Crl.A.No.315/02 been injured in the incident. It is true that when there is only a very minor injury, it need not be explained. But when the complainant does not have a case of altercation and when it is found that the accused have sustained some injuries and a case has been initiated against the complainant as well, it has to be stated that the story projected by the complainant is not true and correct and therefore in a criminal prosecution it has its own disadvantages. Therefore from this discussion , I hold that the appeal lacks merit and therefore the same is dismissed. M.N. KRISHNAN, JUDGE cl 9 Crl.A.No.315/02 10 Crl.A.No.315/02 beat