IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 3054 of 2003(C) ------------------------------- CC.388/95 OF JFCM-I, PERAMBRA CRL.APPEAL 233/2000 OF ADDL. DISTRICT AND SESSIONS JUDGE (FAST TRACK ADHOC-II) KOZHIKODE REVN. PETITIONER(S): --------------------- 1. MOHAN S/O.KRISHNAN POTTAKKATTE HOUSE MAVATTAM, POOZHITHODU PO KOZHIKODE DISTRICT 2. BABY, KUNNATH HOUSE POOZHITHODU PO KOZHIKODE DISTRICT 3. JOSE, KUMBALAKKATTIL HOUSE POOZHITHODU PO, KOZHIKODE DISTRICT BY ADV. SRI.M.ASOKAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. KUNNOTH SAROJINI W/O.KUNHIRAMAN, ATHIYODI AMSOM DESOM KOYILANDY TALUK KOZHIKODE DISTRICT ADV. SRI.P.V.KUNHIKRISHNAN FOR R2 PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ``````````````````````````````````````````````````````` Crl.R.P. No. 3054 of 2003 C ``````````````````````````````````````````````````````` Dated this the 4th day of August, 2010 O R D E R Petitioners are accused 2 to 4 in C.C.No.388/1995 on the file of Judicial First Class Magistrate-I, Perambra taken cognizance by the learned Magistrate on a private complaint filed by the second respondent. Petitioners were convicted for offences under Sections 324 and 458 read with Section 34 of Indian Penal Code. Though petitioners challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.Appeal No.233/2000, learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioners and second respondent were heard. 3. Second respondent, who was examined as PW1, lodged the private complaint on 11-09-1995 before Judicial First Class Magistrate, Perambra alleging that on 21-11-1994 at about 11.30 PM while PW1, PW3 her husband and her brother Ravi and PW2 his wife and son Manoj were sleeping in their house, the four Crl.R.P.3054/2003 : 2 : accused knocked at the door asking PW1, who woke up, to open the door and when she did not open, they forcibly broke opened the door and entered the house. They asked Manoj, son of PW1, to accompany them to marry Radha, the daughter of the first accused, who is now no more, and when Manoj refused, all the accused tried to forcibly take him out of the house along with them. Finding it, second respondent tried to obstruct them and then she was attacked using a torch and a knife and voluntarily caused hurt to her. When PW3, her husband, also rushed to her help, he was also beaten and voluntarily hurt was caused to him. It is the allegation in the complaint that petitioners along with the first accused forcibly took Manoj along with them and also destroyed the articles of the house and thereby committed loss to the second respondent. It is the allegation in the complaint that PWs 1 and 3 were taken to primary health centre, Perambra from where PW4, the Doctor, examined them and prepared Exts.P1 and P2 wound certificates and admitted them in the hospital. It is alleged that police came there and recorded the statements of the second respondent and her husband but no case was registered. Crl.R.P.3054/2003 : 3 : In such circumstances, alleging that petitioners and the first accused committed offences under Sections 427, 324, 447, 458 and 506(i) read with Section 34 of Indian Penal Code, the complaint was lodged. The learned Magistrate, after recording the sworn statements of the second respondent and her witnesses, took cognizance of offences under Sections 324, 427 and 458 read with Section 34 of Indian Penal Code. The accused pleaded not guilty. First respondent, thereafter, examined herself as PW1, her sister-in-law as PW2 and her husband as PW3 and the Doctor as PW4. Exts.P1 and P2 wound certificates were also marked. Accused did not adduce any evidence. Based on the evidence, learned Magistrate convicted and sentenced the petitioners for offences under Sections 324 and 458 read with Section 34 of Indian Penal Code. The offence as against the first accused abated as he died pending trial. Though petitioners challenged the conviction and sentence, learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction. It is challenged in the revision. 4. The argument of the learned counsel appearing for Crl.R.P.3054/2003 : 4 : petitioners is that the courts below did not properly appreciate the evidence and grossly erred in ignoring the delay of 9 months in the absence of any proper explanation. It is argued that in the complaint itself it is stated that the statement of PWs 1 and 3 were recorded by the police and those statements which should reflect the actual allegations of PWs 1 and 3, immediate to the incident, were suppressed from the court and in such circumstances, courts below should have found that the delay is fatal. It was also argued that evidence of PWs 1 to 3 establish that Manoj, the son of PW1, married Radha, the daughter of the first accused on 23- 11-1994 and it was a registered marriage which was not liked by PW1 and her husband and subsequently, proceedings were initiated before the Family Court as well as before Judicial First Class Magistrate regarding the marriage dispute and the case has been foisted because of the said marriage. It is argued that evidence of PWs 1 to 3 should not have been believed by the courts below and in such circumstances, the conviction is illegal. 5. Learned counsel appearing for the second respondent argued that both the learned Magistrate and the learned Sessions Crl.R.P.3054/2003 : 5 : Judge appreciated the evidence in the proper respective and there is no reason to re-appreciate the evidence and interfere with the findings. It was argued that the fact that PWs 1 and 3 sustained injuries on the night of 21-11-1994 is proved by the evidence of PW4 and Exts.P1 and P2 wound certificates and the evidence of PW1 is fully corroborated by the evidence of PWs 2 and 3 and in such circumstances, there is no reason to interfere with the conviction as the conviction and sentence is perfectly legal. 6. The evidence of PW4 that Exts.P1 and P2 wound certificates show that PWs 1 and 3 were examined by PW4, the doctor, on the night of 21-11-1994. PW1 was examined at 2.45 AM and Ext.P1 wound certificate was prepared. The injuries recorded are a swelling nearly 4 x 3 Cm below left eye and complaint of pain on lower abdomen. PW3 was examined at 2.40 AM and Ext.P2 wound certificate was prepared. The injuries recorded are lenior abrasion nearly 1 Cm on the little finger of the right hand and a lenior abrasion nearly 1 Cm on the right of ring finger and complaint of pain on the chest and left shoulder. The alleged case of injury disclosed to PW4 by PWs 1 and 3 was that Crl.R.P.3054/2003 : 6 : the injuries were inflicted when they were attacked with a torch and knife by first accused and a group. The nature of the injuries recorded in Exts.P1 and P2 in the ordinary course does not warrant a medical assistance at 2.45 AM as they were not bleeding injuries. Therefore, PWs 1 and 3 had gone to the hospital at that time of the night, evidently, to get records regarding the treatment evidently in support of a case to be lodged later. The entire case is to be appreciated in this background. 7. Though in the complaint it is alleged that while they were in the hospital on that night, police had come there and recorded their statement and no case was registered, neither in the complaint nor in the course of the examination of PWs 1 to 3, it was revealed when the second respondent or her husband became aware that police has not registered a case. We could appreciate a case if police had recorded the statement and thereafter under the impression that police is investigating the case, the injured or the complainant keeping quite for some months and later, finding that police had not registered a case or not properly investigated the case, lodging a complaint. There is Crl.R.P.3054/2003 : 7 : no case in the complaint or in the evidence of PW1 or PW3 her husband that they waited under a bona fide belief that the police is investigating the case and they came to note that no case was registered only just before the filing of the complaint and, therefore, delay in filing the complaint occurred. In the absence of any explanation whatsoever for the inordinate delay of 9 months is fatal. 8. It is the definite case of the accused when PWs 1 to 3 were examined that Manoj, the son of PW1, had entered into a registered marriage with Radha, the daughter of the first accused and the case was foisted because of the enemity. Eventhough PWs 1 to 3 were cross-examined with regard to the factum of the registered marriage, the subsequent dispute between the family, institution of proceedings before the Family Court claiming restoration of conjugal rights, the witnesses did not deny those suggestions and instead expressed only ignorance. Even when they were asked about the proceedings before the Family Court, suggesting that Manoj is absconding, PWs 1 to 3 only expressed ignorance and did not deny the facts. Even the incident had Crl.R.P.3054/2003 : 8 : occurred as alleged by PWs 1 to 3, it could not be believed that they will not file a complaint immediately, especially when the case is that the first accused and her family has a case that Manoj had married the daughter of the first accused on 23-11-1994. When the evidence of PWs 1 to 3 is appreciated in this background, it is difficult to believe the prosecution case. If the four accused committed house trespass armed with weapons like knife and crow bar and broke opened the front door of the house and Manoj, the son, was wrongfully taken away from the house on that night, second respondent or her husband would file a complaint at least on the next day. The evidence of PW1 is that Manoj returned to her house on the next day and still she did not enquire where he was taken and what the petitioners did to him. It is highly improbable. From a proper appreciation of evidence, it is probable that PWs 1 and 3 sustained the injuries noted in Exts.P1 and P2 by some other means and it was made use of for the purpose of foisting a case, when there was proceedings before the Family Court and the Magistrate court with regard to the marriage of Manoj and Radha. In any case, if the incident spoken to PWs 1 Crl.R.P.3054/2003 : 9 : and 3 is true, the injuries sustained by PWs 1 and 3 could not have been those we seen in Exts.P1 and P2. Therefore, on appreciation of the entire evidence, it can only be found that the incident as alleged by the prosecution is not true. The learned Magistrate and the learned Sessions Judge did not properly appreciate the evidence and consequently illegally convicted the petitioners. Conviction is not sustainable. It can only be set aside. Revision is allowed. Conviction of the petitioners for offences under Sections 324 and 458 read with Section 34 of Indian Penal Code is set aside. They are found not guilty of the offences. Petitioners are acquitted. (M.SASIDHARAN NAMBIAR, JUDGE) aks