IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 CRL.A.No. 774 of 2002() ----------------------- CC.515/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... APPELLANT(S): COMPLAINANT ------------------------- P.O.THOMAS, S/O. UMMEN, PUTHENPARAMBIL, KADAPRA, NIRANOM P.O., THIRUVALLA. BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE SRI.V.MANOJ KUMAR SRI.VARUGHESE M EASO SRI.VIVEK VARGHESE P.J. RESPONDENT(S): ACCUSED 1 TO 6 AND STATE --------------------------------------- 1. M.N.JAYAPRAKASH, C.I.OF POLICE, THIRUVALLA, (NOW EMPLOYED AS C.I. OF POLICE, VARKALA) 2. LEELA B.MENON, SRIKALASADANAM, NIRANOM P.O., THIRUVALLA (NOW RESIDING AT KRISHNANJALI, CHENNITHALA P.O., MAVELIKKARA, ALAPPUZHA DISTRICT. 3. P.M.UMMERKUTTY, A.S.I. OF POLICE, C.I. OFFFICE, THIRUVALLA (NOW RETIRED FROM SERVICE AND RESIDING AT THARAYIL PALLIPPADY JUNCTION, MULAKKAZHA P.O., CHENGANNUR, ALAPPUZHA DISTRICT. CRL.A.NO.774/02 :-2-: 4. P.K.VIJAYAN, HEAD CONSTABLE, C.I. OF POLICE OFFICE, THIRUVALLA, (NOW EMPLOYED AS S.I. OF POLICE, NEMOM POLICE STATION, THIRUVANANTHAPRUAM). 5. SATYAN, POLICE CONSTABLE, C.I.OFFICE, THIRUVALLA (NOW EMPLOYED AS POLICE CONSTABLE, RANNI POLICE STATION, RANNI). 6. JOHNSON, POLICE CONSTABLE, C.I.OFFICE, THIRUVALLA (NOW EMPLOYED AS POLICE CONSTABLE, PULUKEEZHU POLICE STATION, VALANJAVATTOM P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT. 7. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.SETHUNATH FOR R1,4,5 & 6 SRI.P.VINODKUMAR FOR R2 R7 BY PUBLIC PROSECUTOR SRI C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.774 of 2002 ---------------------------------------------- Dated, 16th March, 2009. JUDGMENT The complainant, in a prosecution for the offences punishable under sections 109, 182, 352, 342 and 323 of the Indian Penal code, is the appellant herein, as he is aggrieved by the order of acquittal passed by the Court below under section 255 (1) Cr.P.C. 2. The case of the appellant/complainant is that during the year 1995, he was the Member of Kadapra Panchayat representing Ward No.V. First accused was the Circle Inspector of Police, and 3rd accused was the Addl.Sub Inspector of Police, 4th accused was a Head constable and 5th and 6th accused were Police Constables attached to the office of the C.I. of Police, Thiruvalla. 2nd accused was a resident of Ward No.V of which the complainant/appellant representing. According to the complainant, there was a byelane called “Koottampallil padi - Mangattu padi” in Ward No.V of Kadapra Panchayat. 2nd accused was having her residential plot abutting the western margin of the bylane. As per the allegation, 2nd accused attempted to construct permanent granite wall for the eastern boundary of her plot by encroaching about 2.5 ft. width into the bylane, as a result of which a dispute arose between the beneficiaries Crl.A.No.774/2002 -:2:- of that bylane and 2nd accused. Consequently, 2nd accused moved the civil court by filing O.S.No.521/90 before the Munsiff court, Thiruvalla, which was decreed. Against the above judgment and decree, appeal was preferred as A.S.No.25/95 before the Sub court, Thiruvalla. In the meantime, Kadapra Panchayat had taken over the bylane as per its resolution dated 28.11.98. According to the allegation, under the above circumstances, 2nd accused sought interference of Ist accused and upon influence and instigation of 2nd accused, Ist accused interfered with the matter. Thus on 12.5.95, a conciliation meeting was held by Ist accused in his office to which the complainant, President of Kadapra Panchayat and representatives of the beneficiaries of bylane were summoned. It is the further case of the complainant that, in that meeting, all the persons were compelled to accept the following decisions : (i) to tie up a coir wire from south-east side to the boundary stone at the north east side of the property of A2 and allow her to dig up a foundation pit behind the coir wire without encroaching into the bylane for the construction of a pucca granite wall. (ii) to tie up a coir wire in the presence of following members namely, (1) P.J.Thomas, Panchayat President, Kadapra, (2) Mr. M.N. Jayaprakash, (A1); (3) Mr. P.O.Thomas (Complainant). Crl.A.No.774/2002 -:3:- 3. It is the further case of the complainant that in defiance of the above decision, on 15.5.95 at about 11 a.m., Ist accused had sent accused Nos.3 to 5 to the spot and they had tied up a coir string by encroaching 2.5 ft. width into the bylane for digging foundation pit for the construction of the wall. It is alleged that when the beneficiaries of bylane and local people objected to such tying of coir string, accused Nos. 3 to 5 threatened them that they would be arrested and removed. Thus it is alleged that the beneficiaries approached the complainant who was in the Panchayat office at that time. It is the further claim of the complainant that on receiving such intimation and complaint, the complainant himself visited the plot and personally convinced about the illegal act of accused Nos.3 to 5. Thereafter, the complainant approached the Panchayat President to ascertain whether such tying of coir was in his presence or with his knowledge. But the Panchayat President pleaded his ignorance. Thus, according to the complainant, he went to the site and removed the coir which was tied by the police in favour of the 2nd accused. By this Act, the 2nd accused got agitated and annoyed and threatened the complainant. Thereafter, 2nd accused went to the police station. Thereafter, according to the complainant, on that day at about 6 p.m. he went to the office of the Circle Inspector of Police - Ist accused, to enquire Crl.A.No.774/2002 -:4:- about the reason for tying coir string contrary to the decision taken on 12.5.95. According to the complainant, when he entered into the office, 2nd accused was seen occupying the chair of Addl. S.I. and 3rd accused standing by her side surrounded by accused 3 and 4. According to the complainant, on seeing him, they stopped their discussion. When the complainant enquired about Ist accused, he was told that Ist accused had left the office with a direction that complainant should meet him at office on the next day at 9.30. So, according to the complainant, he returned from the police station. 4. Again at about 11.20 a.m. on 16.5.95, he went to the police station and then also, according to the complainant, he saw 2nd accused occupying the chair of Addl.Sub Inspector and accused 3, 4 and 5 standing by her side. It is his further case that on seeing the complainant , 4th accused went to the room of Ist accused to inform about the arrival of the complainant and then 4th accused came out of the room of Ist accused with instruction that complainant should sit on a bench in the rear room of the office, and accordingly, he sat there. Then, according to the complainant, while he was sitting there, Ist accused disposed of all the people in a hurry-burry manner and when all the people were disposed of, complainant was called into the room of Ist accused. It is also the case of the complainant that Crl.A.No.774/2002 -:5:- immediately after he entered the room, one of the police constables pulled the curtain of the door so as to obstruct the view from out side. According to the complainant, on seeing him, Ist accused stood up from his chair and shouted against him by using obscene words. It is his further case that by saying obscene words, Ist accused approached him and he got frightened at the unexpected move of Ist accused. Apprehending danger, the complainant tuned back and walked towards the door. But in the meantime, Ist accused caught hold on the neck of the complainant so as to prevent him from moving out of the room and then forcibly fisted with right hand on the left side of his head and he tumbled towards the door. The complainant placed his left hand on the wall near the door so as to avoid his fall. It is averred that, suddenly Ist accused struck at that hand and again forcibly fisted at the same side of his head and consequently he lost consciousness and fell down. According to the complainant, when he regained consciousness, he was at Pushpagiri Hospital, Thiruvalla, where he had undergone treatment as inpatient from 16.5.95 to 22.5.95. 5. It is the further case of the complainant that according to his source information, he came to know that he was kept in the office of Crl.A.No.774/2002 -:6:- Ist accused from 12 noon to 2.30 p.m. Thereafter, as directed by Ist accused, accused 3 to 6 took him out of the office and left to Government Hospital, Thiruvalla and accused 5 and 6 hired a taxi and at about 3 p.m. he was taken to Government Hospital, Thiruvalla. It is his case that at that time, accused 5 and 6 were in mufty dress in the hospital and they told the medical officer on duty that the complainant was seen lying unconscious and they were not aware of the reason for his unconsciousness. It is also the case of the complainant that as the medical officer was not properly explained the reason for his unconsciousness, no proper treatment was given and thus, the medical officer advised accused 5 and 6 to take him to a major hospital for better treatment. It is the continued version of the complainant that in spite of such direction, accused 5 and 6 abandoned him at the verandah of the Government hospital, Thiruvalla and they left the place. 6. According to the complainant, the Lay Secretary of the hospital found a new admission in the admission register of that hospital, but the patient could not be traced out and thus the Lay Secretary informed the cashier Sri K.R.Babu and when the Cashier verified the records, he found the name of the complainant from the register and thereafter he located the complainant who was lying unconscious at the verandah. According to the complainant, the said Sabu identified Crl.A.No.774/2002 -:7:- the complainant and informed the matter to one Varghese Kurian, the Principal of St. John's College, Thiruvalla and that he in turn informed the matter to Mr. M.J.Joseph, the Superintendent of Marthoma Sabha Office, Thiruvalla. Thereafter the said Joseph informed the matter to V.J.Mathew and friends and relatives of the complainant and they took the complainant from the Government Hospital and he was taken to Pushpagiri Hospital, Thiruvalla, where he was admitted. It is also the case of the complainant that while he was undergoing treatment as an inpatient in the Pushpagiri Hospitatl, the then Dy.S.P., Thiruvalla, visited him and recorded his statement but no further action was taken. It is also his case that though a departmental enquiry was conducted by the R.D.O., Thiruvalla about the incident, he was not aware of the result of such enquiry.. 7. Thus, according to the complainant, accused 2 to 6 entered into a criminal conspiracy and as a result of which, on 16.5.95 at 11.30 a.m, the complainant was got into the office of the Circle Inspector of Police , Thiruvalla and with the help of accused 2 to 6, the complainant was wrongfully confined in the office room of Circle Inspector and in that room, Ist accused made gestures and preparation and thereby put the complainant in fear of assault and then accused 1 fisted him on his head twice and voluntarily caused hurt to Crl.A.No.774/2002 -:8:- him and due to the false information given by accused 5 and 6, he was denied timely treatment by the Medical Officer on duty at Government Hospital, Thiruvalla and thus his life was put in danger and thereby the accused had committed offences punishable under sections 109, 182, 352, 342, 323 read with 34 and 120B IPC. 8. When the complainant approached the Judicial First Class Magistrate, Thiruvalla, by filing the above complaint, his sworn statement and that of two witnesses, namely, Smt. Sarojini and Smt. Bharathi were recorded by the Magistrate and the complaint was taken on file in that court as C.C.No.330/96 for the offences under sections 109, 182, 352, 323, 342 read with S.34 IPC. On appearance of the accused, the particulars of the offences were read over and explained to them and they pleaded not guilty. Thus, the case was posted for prosecution evidence. In the meanwhile, the Ist accused filed a petition, Crl.M.P.7693/98 with a prayer to dismiss the complaint for want of sanction as per Section 197(1) Cr.P.C. and that petition was dismissed by the Magistrate against which the Ist accused preferred Crl.M.C. 5580/98 before this Court which was also dismissed. Thereafter, the complainant was examined as PW1. Two more witnesses were examined as PW2 and 3. In the meantime, the accused filed Crl.M.P.(T.P) 151/99 before the Sessions Court, Crl.A.No.774/2002 -:9:- Pathanamthitta to transfer the case from JFCM, Thiruvalla to some other court. While the said petition was pending consideration, the complainant approached the Sessions Court by filing C.M.P.247/99 for examining one of the witnesses, viz, K.R.Sabu before his return to Saudi Arabia, and that petition was allowed and as a result of which, PW4 was examined in the JFCM, Thiruvalla. Thereafter the Sessions Court passed an order in the transfer petition transferring the case from JFCM, Thiruvalla to JFCM, Pathanamthitta. Aggrieved by the said order, the complainant preferred Crl.R.P.No.897/99 before this Court and this Court allowed that Crl.R.P. by order dated 16.8.2000 and accordingly, the case was transferred from JFCM, Thiruvalla to JFCM- I, Chengannur, wherein the case was taken as C.C.No.515/2000. 9. Thereafter, PW3 was re-summoned and examined further and marked Ext.P1. The complainant had examined two more witnesses viz., PWs 5 and 6 and got marked Exts.P2 and P2(a). Thus, the evidence of the complainant consists of the oral deposition of PWs 1 to 6 and the documentary evidence such as Exts.P1 , P2 and P2(a). The incriminating circumstances, which emerged during the evidence of the complainant, when put to the accused under section 313 Cr.P.C., they denied the same. 10. The specific case of the accused is that the complainant was Crl.A.No.774/2002 -:10:- belonging to a political party, which was one of the ruling coalition of the panchayath, and 2nd accused was a worker of Congress (I) which was one of the supporters of UDF who lead the state government at that time. The civil suit which initiated at the instance of 2nd accused decreed was in favour of 2nd accused. According to the defence, but due to political enmity, the complainant being the Panchayat Member of the Ward, interfered in the dispute and worked against 2nd accused and 2nd accused filed a complaint before the Ist accused, who being the Circle Inspector of Police, called the conciliation meeting of parties concerned and an amicable settlement was arrived at. But the complainant was not prepared to abide by the settlement arrived, because, according to the defence, the complainant approached the Ist accused on several occasions for illegal favours but Ist accused did not heed to that. It is the further case of defence that Ist accused had drawn a line separating the eastern boundary of 2nd accused's plot and the bylane by tying coir string based upon the settlement arrived during the conciliation meeting. But aggrieved by the said action, the complainant removed the coir string and went to the office of the Ist accused to show his powers , and unexpectedly, he had seen 2nd accused at the office and on seeing the 2nd accused, the complainant got furious and his blood pressure shoot up and he became ill. Crl.A.No.774/2002 -:11:- According to the defence, the above incident made use of by the complainant to create a false case against the accused. It is also the defence version that the complainant had sent complaint to the Government and in response to the said complaint, the R.D.O. Thiruvalla had made enquiry but the finding of the R.D.O. was not in favour of the complainant. Therefore, the complainant, after a delay of 52 days of the alleged incident, approached the court of JFCM, Thiruvalla, by filing a false case by using his political influence. 11. From the side of the defence, especially, Ist accused examined DWs 1 and 2 to show that the medical records produced in support of the prosecution are forged and fabricated one. 12. On the basis of the materials and evidence on record and on the rival pleadings, the court below formulated 9 points for its consideration. After an elaborate discussion of the entire case, and on appreciation of the evidence and materials on record, the trial court found that a mere reading of the complaint would show that the facts were distorted , tilted and twisted so as to rope all the accused persons together and those distorted and tilted portions can be seen at every pace and junction of the complaint. Thus it is further found that the evidence of witnesses are blended and modulated so as to secure conviction of the accused. It is also the finding of the court below that Crl.A.No.774/2002 -:12:- on reading the evidence it could be seen that materials are focused mainly against Ist accused and practically no material is produced against other accused. But even the arranged materials against Ist accused do not reach up to the hilt. PW1 attempted to create artificial evidence and thereby became unreliable. Thus the court found that there is no reliable and acceptable evidence to prove wrongful confinement, use of criminal force and voluntarily causing injury and abetment etc. charged against the accused. Thus the accused were found not guilty and were acquitted under section 255(1) Cr.P.C. It is the above observation, finding and order of acquittal challenged in this appeal. 13. I have heard the learned senior counsel Sri Jacob Varghese, appearing for the appellant; Sri V.Sethunath, the learned counsel appearing for the accused Nos.1, 4, 5, 6; Sri P.Vinodkumar, the learned counsel appearing appearing for 2nd accused, and also the learned Public Prosecutor for the 7th respondent. 14. Sri Jacob Varghese, the learned counsel for the appellant strenuously argued that the evidence adduced by the appellant, both documentary as well as oral , would unerringly establish the offence alleged against the accused. According to the learned counsel, the trial court miserably failed to appreciate the evidence and materials on Crl.A.No.774/2002 -:13:- record in its correct perspective. The learned counsel further submitted that the trial court has committed wrong in understanding the evidence and appreciating the same in its correct manner etc. It is the case of the learned senior counsel that regarding the entire incident that took place inside the office of the Ist accused, there is evidence of PW1 alone. It is the further submission of the learned counsel that it is practically impossible to get direct evidence regarding the incident that took place inside the Police station. In the absence of any infirmity or contradiction or conflict in the evidence of PW1- the complainant, there is no bar in accepting his evidence with respect to the incident that took place inside the office of the C.I. of Police - the Ist accused. It is pointed out by the learned counsel that in support of the case of the complainant, there are independent evidence and materials starting from the admission of the complainant in the Taluk Hospital, Thiruvalla, till his treatment and discharge from the Pushpagiri Hospital, Thiruvalla. The learned Counsel pointed out that the deposition of PW2, PW3 and PW4 are sufficient to establish the case of the complainant regarding the development that took pace in the Taluk Hospital at Thiruvalla. The evidence of PWs 5 and 6 who are doctors attached to Pushpagiri hospital further established the treatment that given to PW1 therein and also further established the allegation of the Crl.A.No.774/2002 -:14:- complainant regarding the injury that he sustained while he was in the police station. The learned Counsel submitted that as pointed out earlier, regarding the incident in the Police station, there is no possibility of getting direct evidence, therefore, the learned counsel very much placed reliance upon the decision of the Hon'ble Supreme Court reported in State of M.P. v. Shyamsunder Trivedi (1995 SCC(Cri) 715 and Munshi Singh Gautam v. State of M.P. (AIR 2005 SC 402) etc. The learned counsel submitted that on the strength of the evidence and materials on record and in the light of the above decisions of the Supreme Court, the complainant has established his case beyond any doubt. But according to the learned counsel, the court below, overlooking such legal evidence and based on surmises, came into a wrong conclusion that the complainant has failed to establish his case and such a finding of the court below is liable to be interfered with and it is submitted that, allowing this appeal, reverse the order of acquittal and after convicting them appropriate punishment may be imposed against the accused. 15. On the other hand, Sri V.Sethunath, the learned counsel appearing for accused Nos.1, 4, 5 and 6, submitted that absolutely, there is no evidence to substantiate the allegation and to prove the Crl.A.No.774/2002 -:15:- guilt of the accused. The learned counsel pointed out that the complainant has miserably failed to adduce reliable and acceptable legal evidence in support of his allegation. The evidence which was already brought by the complainant are full of contradictions, infirmities and conflicts which are not sufficient to instill the confidence of the court. It is also pointed out that though the complainant has cited several witnesses, they were not examined to prove the case of the complainant. It is also the case of the counsel that the defence has succeeded in establishing the defence case and by adducing evidence, the defence has further probablise its case and therefore, the finding of the court below is in accordance with the available materials on record. It is also submitted by the learned counsel that as observed by the trial court, the entire case put forward by the appellant is a false one and the falsity of the allegations are more conspicuous and clear from the complaint itself which was correctly considered by the court below. Thus by the order of acquittal, the court below has reaffirmed the innocence of the accused and such a finding cannot be interfered with, especially, when the appellant has failed to point out any flaw of law or wrong in the finding of the court below. Therefore, the learned counsel submitted that the appeal is liable to be dismissed. Crl.A.No.774/2002 -:16:- 16. I have carefully considered the arguments advanced by the counsel for the appellant as well as the respondents and also perused the evidence and materials on record. 17. At the outset, it is to be remembered that this appeal is preferred against the order of acquittal passed by the court below in a private prosecution initiated at the instance of the appellant/complainant. The specific case of the complainant is that 2nd accused had filed a false complaint against PW1- the complainant, before the Ist accused who was the then Circle Inspector of Police, Thiruvalla. According to PW1, he reached in the police station by 11.30 a.m. on 16.5.95 and made await there till 12 noon, and thereafter, he was informed by the 5th accused to meet Ist accused in his room. It is thereafter, 6th accused pulled the curtain of the door when PW1 entered into the room of Ist accused. It is his further case that on seeing PW1, Ist accused shouted against him using filthy and obscene words and approached him in an attacking mood. When PW1 was about to escape from the room, Ist accused caught hold of on the neck of the complainant so as to prevent him from moving out of the room and then forcibly fisted with right hand on the left side of his head and he tumbled towards the door. Then the complainant placed his left hand on the wall near the door so as to avoid his fall. Crl.A.No.774/2002 -:17:- Suddenly Ist accused struck at that hand and again forcibly fisted at the same side of his head and consequently he fell unconscious. According