IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 CRL.A.No. 1869 of 2004() ------------------------ CC.457/2002 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... APPELLANT: COMPLAINANT ---------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU RESPONDENTS: ACCUSED -------------------- 1. SIVANANDAN, S/O.VASU, VADAKKEPPURAYIL HOUSE, PARKKILETH, MANTHUKAMURY, KULANADA VILLAGE. 2. VASU, S/O.RAMAN, PARIKKILETHU VADAKKEPURA HOUSE, MANTHUKA MURY, KULANADA VILLAGE. 3. RADHA D/O.PONNAMMA, PARIKKILETHU VADAKKEPURA HOUSE, MANTHUKA MURI, KULANADA VILLAGE. 4. BHAVANI, D/O.KUNJUPENNU, PARIKKILETHU VADAKKEPURA HOUSE, MANTHUKA MURI, KULANADA VILLAGE. BY ADV. SRI.S.SANTOSH KUMAR (PERUNAD) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------- Crl.A.No.1869 of 2004 ------------------------------------------- Dated this the 27th day of February, 2008 JUDGMENT This appeal is filed by the State assailing the acquittal of respondents 1 to 4, under Section 248(1) Cr.P.C. of offence punishable under Sections 447, 342, 323, 324 and 354 IPC read with Section 34 thereof. 2. The prosecution case is that respondents 1 and 2 criminally trespassed into the residential compound wherein PW1 and others were residing; that A1 threw stones on PW2, the son of PW1, while PW2 was cutting the leaves of jack tree and PW2, fell down and there upon A1 caught hold of the neck and hair of PW1 and A2 caught hold of PW2, who fell down and dragged him as also PW1 to their courtyard and tied them to the window bar on the front side of their house by using a rope and also the saree worn by PW1 and thereafter all accused 1 to 4 attacked both PWs 1 and 2 and caused hurt to them and also outraged the modesty of PW1. The motive for the incident is alleged to be the failure of PW1 to sign in the paper for withdrawing the case against the accused for their having CRL.A.NO.1869/2004 2 caused hurt to her. 3. On appearance of the respondents in the court below, the learned Judicial First Class Magistrate, Adoor heard the prosecution and the counsel for the respondents, perused the prosecution records and framed charge against the respondents for offence under Sections 447, 341, 323, 324 and 354 IPC read with Section 34 thereof, read over and explained it to the respondents and questioned them. There upon all the respondents pleaded not guilty. Thereafter, the case was transferred to the Court of Chief Judicial Magistrate vide order of the CJM, Pathanamthitta. 4. Prosecution examined PWs 1 to 7 and got marked Exts. P1 to P6. On the prosecution closing their evidence, respondents were questioned by the CJM under Section 313 Cr.P.C. There upon they denied all incriminating circumstances appearing in evidence against them and maintained that they are innocent. According to A1, the defacto complainant was creating problems one after another from 1990 onwards raising boundary dispute and the survey authorities who came there were also abused and a peaceful life was rendered impossible by the CRL.A.NO.1869/2004 3 conduct of the defacto complainant and the members of her family. However, the respondents did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid, found that the evidence adduced on the side of the prosecution is full of contradictions and embellishments; that there is no convincing evidence to show that the occurrence started within the property of PW1; that the jack tree, from which PW2 is alleged to have been engaged in cutting down branches and leaves, is not evidenced to be within the property of PW1; and that the medical evidence does not tally at all with the oral testimony of PWs 1 and 2 as regards the injuries sustained to them and consequently disbelieved the case of the prosecution and acquitted the respondents finding them not guilty of the offences alleged. Hence this appeal by the State challenging the acquittal of the respondents. 6. PW1 Sathiamma is the mother of PW2. Going by her evidence when PW2 was cutting down branches of jack fruit tree within their residential compound, A1 threw stones at him and caused him to fall down and hearing the alarm raised by him, CRL.A.NO.1869/2004 4 PW1 came rushing and then A1 and A2 drew PW2 forcibly towards their house and in the courtyard, they tied him down using a rope to the window bar and when PW1 came over, the saree which was worn by her, was forcibly removed by A1 and A2 and tied her also to the window bar using the said saree; that A3 beat them using a stick and A4 beat them using a broom and that by 10 a.m. on that day the people in the locality assembled and got them released, but that, prior thereto, PW1 was also compelled to sign in a paper for withdrawal of a case registered against the accused, on an earlier occasion in connection with their having caused bodily harm to PW1. According to PW1, altogether there are four cases registered against the accused for having caused bodily harm to her. 7. PW3 is an independent witness and he has corroborated, to some extent, the testimonies of PWs 1 and 2, though his evidence was not consistent with his statement given to the police. PW4 Biju is a hostile witness and nothing could be brought out from his testimony which would be of any use to the prosecution. PW5 is the doctor, who examined both PW1 and PW2 and recorded respectively Exts.P3 and P4 wound CRL.A.NO.1869/2004 5 certificates in relation to the injuries sustained on the body respectively of PWs 1 and 2. According to the doctor, as certified by him in Ext.P3, the only injury found on the body of PW1 is a contusion of 2x1 cm on lateral aspect of left forearm and nothing else except that she complained of pain all over the body and pain on abdomen. He has further given evidence that on examination of PW2, no external injuries were found, though he complained of pain on all over the body. The evidence tendered by PWs 1 and 2 as regards the injuries sustained to them, do not stand corroborated by the testimony of PW5, the doctor who has recorded Exts. P3 and P4 wound certificates on the same day of the occurrence. PW6, the investigating officer, has admitted in cross examination that he has not noted in the mahazar the existence of a jack fruit tree, from which, it was alleged that PW2 was cutting branches. Though he has denied, when asked as to whether he was not avoiding recording the existence of jack fruit tree only because it was within the property of the respondents, there is no convincing evidence that any jack tree existed in the property of PW1. However, he has not made any investigation at all as to whether property dispute CRL.A.NO.1869/2004 6 existed between PWs 1 and 2 on one side and the accused on the other. However, PW6, the Sub Inspector has admitted that there are several cases wherein PW1 is the defacto complainant. PW7, however, has not conducted any investigation in the case, but has only prepared the final report verifying the case diary and his evidence is not of any consequence in this case. 8. According to PW1, she was having injuries on her legs, on her neck and on her elbow. When she was asked as to whether the certificate issued by the doctor does show such injuries, she asserted that she was having those injuries. However, no explanation was forthcoming as to how it does not find a place in the wound certificate. According to PW1, the property of the respondents/accused is on the northern side of her property and A2 is none other than the elder brother of her late husband Damodaran and A1 is the wife of A2. According to PW1, as per the partition deed, the respondents got 44 cents and she got 25½ cents and there are only stones which show the boundary of the property. She further stated that her son (PW2) climbed for about 18 feet on the jack tree and he was having a fall there from on being pelted and he sustained several injuries CRL.A.NO.1869/2004 7 and blood was flowing from his nose and mouth and he was having injuries on his leg as well which was visible. She has no explanation, when it was pointed out to her that the medical records do not show any injury on the body of her son (PW2). She stated in her testimony that A1 fisted on her lower abdomen with his knee. But, when it was pointed out that no such statement is seen made in Ext.P1, her answer was that she was not aware as to what actually happened. Further, though she stated in her evidence that the accused threatened her and her son with dire consequence in case she did not give signed in the blank paper, such a statement is not there in Ext.P1. She was also not sure when asked in cross examination as to who drew her son forcibly. According to her, that might have been done by all. It is also pertinent to note that PW1 while giving Ext.P1 F.I. statement had no case that PW3 had witnessed the occurrence. On the whole, it is a case where there was practically no injury on the body of PW2 and as regards injury on the body of PW1 it was only a contusion of 2x1 cm. on the lateral aspect of left forearm which PW5 has stated is an injury that can be caused by contact with any hard object. Thus, the medical evidence does CRL.A.NO.1869/2004 8 not corroborate the prosecution case at all. The testimony of PWs 1 and 2 itself is not mutually corroborating and does not support the prosecution case. It was in the above circumstances that the court below found the respondents not guilty and acquitted them of offences under Sections 447, 342, 323, 324 and 354 IPC read with Section 34 thereof. 9. The view taken by the court below is a plausible view on the evidence adduced in the case. I do not see any reason to take a contrary view in the nature of the evidence tendered by PW1 and PW2 which are not convincing and their evidence also does not stand corroborated by any independent evidence, and even by the medical evidence. 10. In the circumstances, there is no reason to reverse the order of acquittal passed by the court below and to enter into a conviction of the accused for the offences with which they are charged. This appeal has only to be dismissed in the circumstances. In the result, I dismiss this criminal appeal. K.P.BALACHANDRAN, JUDGE csl