IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 CRL.A.No. 1277 of 2005() ------------------------ SC.397/1998 IN CP.48/98 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA (CRIME NO.40/98 OF CHAVARA THEKKUMBHAGOM POLICE STATION) .................... APPELLANT: COMPLAINANT: ---------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. HIGH COURT OF KERALA, ERNAKULAM. (CHARGE SHEETED BY THE CIRCLE INSPECTOR OF POLICE, CHAVARA). BY GOVERNMENT PLEADER RESPONDENT(S): ACCUSED: ----------------------- 1. VIJAYAN, S/O. RAGHAVAN, VIPIN NIVAS, MALIBHAGOM MURI, THEKKUMBHAGOM VILLAGE. 2. SURENDRAN, S/O. RAGHAVAN, LALITHA BHAVAN, VALIYAPADAM MURI, WEST KALLADA VILLAGE. 3. MOHAN, S/O. PARAMESWARAN, REMA BHAVAN, MALIBHAGOM MURI,THEKKUMBHAGOM VILLAGE ADV. SRI.T.R.ASWAS FOR R1 TO 3 PUBLIC PROSECUTR SRI.S.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1277 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of July, 2009. Judgment Basheer, J: This appeal against acquittal is at the instance of the State. By the impugned judgment the court below held that the prosecution had not succeeded in proving the charge against the three accused under sections 341, 324 and 302 read with Section 34 of the Indian Penal Code beyond reasonable doubt. Accordingly the court below gave respondents/accused the benefit of doubt and acquitted them. Hence this appeal. 2. The prosecution case may be briefly noticed. 3. On March 16, 1998 at about 4.15 PM deceased Santhosh Kumar was standing along with Pws.2 and 3 at Madathil Junction on the public road running east-west. At that time Pw.5 came on a bicycle and stopped in front of them. According to Pw.2 he questioned Pw.5 as to why he stopped the bicycle on the middle of the road. This resulted in some altercation between Pw.2 and Pw.5. At that time accused No.1 came to the scene on a scooter. Pw.6 also came to the scene. Words were exchanged between the deceased and Pw.2 on the one side and accused No.1 and Pw.5 and Pw.6 on the other. Crl.A.1277/05 2 According to the prosecution case, deceased Santhosh Kumar slapped on the face of accused No.1 who immediately left the scene threatening him of dire consequences. Deceased walked towards west along with Pws.2 and 3. Shortly thereafter accused No.1 returned to the junction on his scooter with accused Nos.2 and 3 as his pillion riders. They stopped the scooter at the junction in front of the shop of Krishna Pillai and got out. They ran towards the deceased and Pws.2 and 3. Accused No.3 shouted looking at the deceased “kill him” and on hearing this deceased had started to run. Pws.2 and 3 followed. The three accused chased deceased Santhosh Kumar. While running, he fell down in front of the U.P. school. Accused No.1 lifted Santhosh Kumar from the ground. At that time accused No.2 stabbed Santhosh Kumar on the left arm pit twice with M.O.1 dagger. Accused No.3 inflicted cut injuries on the right hand of deceased Santhosh Kumar with M.O.2 sword. Pws.2 and 3 ran away in fright. 4. According to Pw.1, he saw the entire incident. Deceased Santhosh Kumar fell down in the courtyard after running for a short distance. He rushed to the scene with his autorickshaw along with one Gireesh and Shibu. They took Santhosh Kumar to the Lok Raksha Hospital in the Crl.A.1277/05 3 autorickshaw. The Doctor after examining Santhosh Kumar declared him dead. Pw.1 went to the Police Station and gave Ext.P1 statement which was recorded by Pw.11, Asst. Sub Inspector of Police. On the basis of the said statement Pw.11 registered Ext.P1 (a) FIR. Investigation was conducted by Pw.3 and charge sheet was laid against the three accused after completing investigation, in the course of which the three accused were arrested and M.O.1 dagger and M.O.2 sword were recovered. 5. Pws. 1 to 13 were examined on the side of the prosecution and Exts.P1 to P12 and M.O.1 to 10 were marked. Exts.D1 to D4 were marked on the side of the defence. As mentioned earlier, the court below found that the evidence adduced by the prosecution was not satisfactory or sufficient enough to hold the accused guilty of the charges levelled against them and accordingly acquitted them. 6. Sri.S.U.Nazar, learned Public Prosecutor contends that the court below was not justified in disbelieving the prosecution case without any cogent or plausible reasons. He points out that the evidence of Pws.1 to 4, ocular witnesses, clearly established the prosecution case. Though there were some minor discrepancies in the process of investigation, the Crl.A.1277/05 4 prosecution on the whole had clinchingly established the guilt of the accused. 7. We have carefully perused the impugned judgment and considered the argument advanced by the learned Public Prosecutor and the learned defence counsel. 8. It is trite that the scope of interference by the appellate court with an order of acquittal is very narrow and limited. Undoubtedly the appellate court can examine whether the order of acquittal is legal and proper in a given case. But ordinarily the appellate court will not substitute its view with that of the trial court, unless the reasoning and conclusions of the court below are totally perverse and vitiated. The appellate court must be slow and circumspect to interfere with an order of acquittal under normal circumstances, even if another view is possible. The appellate court will interfere only if the evidence on record is such that no other conclusion than a finding of guilty is possible on the basis of the materials available on record. 9. The short question that arises for our consideration in this appeal is whether this is a fit case in which interference is warranted. Having carefully perused the entire materials available on record, the answer to this question is in the negative. Crl.A.1277/05 5 10. It is true that Pws.1 to 4 claimed that they had witnessed the incident in question. Pw.1 stated that he was an auto rickshaw driver and he used to park his auto at the Madathil Junction. According to this witness, he had been at the junction on the day of the incident right from 3.45 PM. He narrated the prosecution story which we have already extracted above. In cross examination this witness stated that while taking injured Santhosh Kumar in his auto rickshaw his clothes were smeared with blood. Blood had oozed out to the autorickshaw also. According to him, he had gone to the Police Station from the hospital in the taxi car in which deceased Santhosh Kumar was taken to the hospital. Pw.11, the Asst. Sub Inspector who recorded Ext.P1 First Information Statement was categoric when he was examined before the Court that he did not see any bloodstain on the dress of Pw.1 when he came to the Police Station. Pw.1 had further asserted that he had not seen any other incident involving accused No.1 at the junction on that day. He further stated that he had not seen the Police at the junction at about 4 PM on that day. We will refer to the evidence of this witness a little later. 11. Pw.2 and 3 also spoke about the incident in almost identical lines. According to these two witnesses, accused No.1 Crl.A.1277/05 6 was slapped on the face by deceased Santhosh Kumar in the course of an altercation which ensued when accused No.1 picked up a quarrel with them. According to Pws.2 and 3, accused No.1 came back on his scooter along with accused Nos.2 and 3. Accused No.3 who was carrying M.O.2 sword shouted “kill him” when he saw the deceased. Pws.2 and 3 were walking towards west. Both these witnesses also stated that accused No.2 was carrying M.O.1 dagger with him. We do not intend to repeat the prosecution version yet again. The sum and substance of the evidence of these two witnesses is that they were standing at the junction along with the deceased and when they were walking towards west after the minor altercation involving Pws.5 and 6 and accused No.1, the three accused chased them and in the course of the chase the deceased fell down. He was lifted by accused No.1, when accused No.2 stabbed him with M.O.1 dagger, accused No.3 inflicted cut injuries on the right hand of the deceased. Pw.4 also corroborated (if we may say so), the evidence of Pw.1 to a large extent. 12. But in the course of the cross examination of Pw.2 and 3, it came out that both of them had sustained injuries at the same time and place where the alleged incident in this case Crl.A.1277/05 7 took place. Pw.2 conceded that he sustained an injury with M.O.2 sword at the hands of accused No.3. He further admitted that he was in the hospital for about 4 days for treatment of the above injuries. It also came out on record that Pw.2 was questioned by Pw.13 at the hospital. Similarly Pw.3 also admitted that he was in the hospital from Mach 17, 1998 for about 4 days. 13. In this context we may have to refer to Ext.D1 which is a certified copy of the deposition of this witness who was examined as Pw.1 in S.T.Case No.1336 of 1998. Ext.P11 is admittedly the copy of the judgment in the said criminal case which was registered by Chavara Thekkumbhagom Police against accused No.1 on a charge that he had driven a scooter without licence. Accused No.1 was tried for the offence punishable under Sections 181 and 128 read with Section 177 of the Motor Vehicles Act. When Pw.3 was confronted with Ext.D1, he admitted that such an incident had taken place at the same time and place. Pw.2 further admitted that deceased Santhosh Kumar and Pw.3 were along with him at the junction when the alleged incident involving accused No.1 referred to above took place. Thus a perusal of Ext.D1 and Ext.P11 judgment will show that the Police had come to the junction at Crl.A.1277/05 8 about 4 P.M on March 16, 1998 and intercepted the scooter being driven by accused No.1. The evidence of Pw.2 will further reveal that he had sustained injuries on his hand at the hands of accused No.3 with a sword. The evidence of Pw.6 also indicate that he was hospitalised for 4 days along with Pw.2. But according to Pw.3, he got himself admitted in the hospital because he was mentally upset. 14. We have examined the evidence of Pws.2 and 3 in the backdrop of the above materials which have come on record. Pws.1 and 4 of course had stuck to their version that they saw the incident as alleged by the prosecution. But the evidence of Pw.1 will reveal that he had been trying to conceal something from the court. Not only that he was closely related to deceased Santhosh Kumar as admitted by him, it had further come out from his evidence that he had given another signed statement before the Police at about 2.30 PM on the next day. 15. Pw.1 in his evidence stated that Pws.2 and 3 were not present for the cremation of Santhosh,. This probabilises the case of the defence that Pws.2 and 3 had sustained injuries in the melee which took place at the junction on the day of the incident. 16. According to the prosecution, M.O.1 and M.O.2 Crl.A.1277/05 9 weapons were recovered on the basis of the information furnished by accused Nos. 2 and 3. Exts.P9 and P10 respectively are the mahazars for recovery of M.O.1 and M.O.2. But significantly none of the attestors to the two mahazars were examined. Still further, Exts.P9(a) and P10(a) which are stated to be the relevant portions of the statement which led to the recovery, will not reveal the authorship of concealment. Admittedly M.O.1 dagger was sent for chemical examination and going by Ext.P12 it contained some bloodstain though the Examiner stated that the stain found on it was not sufficient enough to find out its origin. But strangely M.O.2 sword was not sent for chemical examination. Still further, admittedly the soil containing bloodstain, both at the place where the deceased allegedly sustained the injuries and where he ultimately collapsed, were taken as M.O.9 and M.O.10. These objects were not sent for chemical examination. The prosecution has not bothered to explain why these three material objects namely M.O.2, M.O.9 and M.O.10 were not sent for chemical examination. Thus having carefully perused the oral and documentary evidence on record, we are satisfied that the court below was justified in disbelieving the prosecution case. In the nature of Crl.A.1277/05 10 the evidence adduced by the prosecution, the only possible conclusion would be to give the benefit of doubt to the accused. The court below had rightly given that benefit to the accused. There is no merit in any of the contentions raised in the appeal. The appeal, therefore, fails and it is accordingly dismissed. A. K. Basheer, Judge. P. S. Gopinathan, Judge an/kvs.