IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 Crl.Rev.Pet.No. 953 of 2003(C) ------------------------------ CC.212/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER(S)/DEFACTO COMPLAINANT: --------------------- R.RAJAGOPALAN, VAYYANKARA BUNGLOW, ANNAYADI, SOORANAD, KOLLAM DISTRICT. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S)/ACCUSED NO.2 TO 4 AND COMPLAINANT: --------------- 1. REJI, S/O.ABRAHAM, AANAMKOTTU PUTHEN VEEDU, CHAYALODE, MANGADU MURI, ENADIMANGALAM VILLAGE. 2. ABRAHAM, S/O.UMMEN, AANAMKOTTU PUTHEN VEEDU, NEDUMAN MURI, EZHAMKULAM VILLAGE. 3. ACHAMMA, D/O.ALIYAMMA, AANAMKOTTU PUTHEN VEEDU, NEDUMAN MURI, EZHAMKULAM VILLAGE. 4. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SEBASTIAN PHILIP FOR R1TO3 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON 24/08/2009 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.953 OF 2003 () ----------------------------------- Dated this the 24th day of August, 2009 O R D E R The revision is directed against the judgment rendered by the Judicial First Class Magistrate Court, Adoor in C.C.No.212 of 1996 acquitting the accused, A2 to A4 for the offences punishable filed under Sections 447, 323, 324, 326 and 427 read with Section 34 of the Indian Penal Code. Among the four accused prosecuted for the above offences, A1 was not available for trial. Splitting up the case against him, trial proceeded against the other accused, A2 to A4. The above accused (A2 to A4) had pleaded not guilty to the charges, and the learned Munsiff, after trial, finding them not guilty, acquitted them of the offences charged. The order of acquittal rendered in favour of the above accused is challenged by PW1, the defacto complainant. 2. Short facts involved in the case giving rise to the CRRP.953/03 2 revision are thus: PW1 is a doctor. He was conducting a hospital in building No.156 in Ward No.VI of Ezhamkulam Panchayat, of which A3 is the owner. The above building was taken on rental basis. Prosecution case is that on 30.10.1995, at about 7 p.m., all the accused A1 to A4 criminally trespassed upon the building, assaulted PW1 with dangerous weapons and caused him injuries, and indulged in violence damaging his properties and removed the furniture from his hospital. PW1, who sustained injuries, was taken to a nearby hospital where he was admitted. The next morning, recording his statement, the crime was registered under Ext.P7 F.I.R. for offences punishable under Sections 447, 323, 324, 379 and 427 read with Section 34 of the IPC. The investigation of the crime was taken over by the Sub Inspector of Police, Adoor, and during the course of which, it was found that PW1, the injured, had suffered a fracture to his nasal bone also in the assault on his person. The investigation further disclosed that no offence under Section 379 of IPC was involved, and, therefore, after completion of the investigation, charge was laid against the accused A1 to A4 for the offences punishable CRRP.953/03 3 under Sections 447, 323, 324, 326 and 427 read with Section 34 of the IPC. In response to summons issued, A2 to A4 alone appeared and A1 remained at large. Splitting up the case against A1, the trial proceeded against A2 to A4. Charge was framed against the accused for the offences punishable under Sections 447, 323, 324, 326 and 427 read with Section 34 of IPC, to which all of them had pleaded not guilty. 3. Prosecution examined PWs.1 to 9 and got marked Exts.P1 to P7 to prove his case. The accused, A2 to A4, when questioned under Section 313 of the Cr.P.C., denied the prosecution evidence canvassing a defence that PW1 sustained minor injuries when some pieces of furniture fell down while it was removed from the hospital and loaded in a vehicle. To sustain that defence, they examined the driver of the vehicle DW1, who had been cited as a prosecution witness, but, not examined by the prosecution. Prosecution case was supported by the injured PW1 and two witnesses PWs.2 and 3, who were employed as nurses in the hospital. Another nurse in the same hospital examined as PW9 turned hostile to the CRRP.953/03 4 prosecution. At the relevant time, one Dr.Sabitha was conducting the hospital. The learned Magistrate, after considering the facts and circumstances and also the evidence let in the case, formed a conclusion that the nonexamination of Dr.Sabitha, who managed the hospital is fatal to the prosecution case. The evidence of PWs.2 and 3 was found to be highly interested, and that of PW1, the injured, not worthy of acceptance. The defence canvassed by the accused that PW1 sustained some minor injuries while removing the furniture from hospital, was found probable, and in that view of the matter, holding that the prosecution has not proved its case with convincing evidence, the accused were found not guilty and acquitted of the offences. 4. I heard the learned counsel on both sides and also the Public Prosecutor. A preliminary objection on the maintainability of the revision was raised by the learned counsel for the accused A2 to A4, submitting that, after the acquittal rendered in favour of these accused on an application moved by A1, this Court had quashed the CRRP.953/03 5 proceeding against him under Section 482 of the Cr.P.C., taking the view that his trial to face the police charge against him in the case was not warranted. A1 had been imputed in the police charge with the specific overtact of striking PW1 with a wooden reaper and causing him injury, and as he stand absolved and no trial is permissible against him since the proceedings from the police charge against him had been quashed by this Court no interference with the order of acquittal rendered in favour of A2 to A4, who had already faced trial and found not guilty, is proper or correct nor is it necessary for the ends of justice, is the submission of the counsel. I find no merit in the submission. The fact that A1 had been relieved by orders of this Court on the basis of the acquittal rendered in favour of the other accused, who faced trial, in no way interdict this Court from examining the propriety and correctness of the acquittal passed in favour of the accused, who faced trial. The merit of the acquittal rendered in favour of the accused, who faced trial, is not liable to be examined with respect to the subsequent orders passed in favour of another accused, who did not even face trial, on CRRP.953/03 6 the basis of the acquittal rendered in favour of those accused who faced trial. The question whether the acquittal of those accused, who faced trial, is justified or not under law has to be appreciated with reference to the materials tendered in the case, and nothing else. 5. The learned counsel for the revision petitioner/the defacto complainant (PW1) contended that on a total misappreciation of the evidence in the case, the court below has passed an order of acquittal in favour of A2 to A4, who faced trial, and it has resulted in miscarriage of justice. The proved facts and circumstances in the case as borne out by the materials tendered, according to the counsel, clearly demonstrate the culpability of the accused in the gross offences imputed against them. On the otherhand, the learned counsel for the accused A2 to A4, highlighting the circumstances adverted to by the learned Magistrate in the impugned judgment contended that no interference with the order of the acquittal is warranted in the case. Reliance is also placed by the counsel on D.Stephens v. Nosibolla (AIR CRRP.953/03 7 (38) 1951 SC 196) and also Ramu alias Ram Kumar and others v. Jagannath (AIR 1994 SC 26) that in exercise of revision, an order of acquittal will not be justified and only in exceptional cases where the interest of public justice require interference so as to correct a manifest illegality or prevention of gross miscarriage of justice, then, alone, the order of acquittal can be set aside and remission ordered to re-examine the matter for fresh consideration. In the given facts of the case, where the prosecution has miserably failed to prove its case, and, further, the case presented by it has been shown to be vitiated from serious infirmities and inherent contradictions, according to the counsel, the order of acquittal rendered in favour of the accused A2 to A4, who faced the trial and who were found not guilty of the offences imputed does not arise for consideration, and the revision is liable to be dismissed. 6. Before examining the challenges mooted by the defacto complainant to assail the order of acquittal rendered CRRP.953/03 8 in favour of the accused who faced trial, A2 to A4, it is needless to point out that no interference by exercise of revisional jurisdiction with an order of acquittal is permissible unless it is shown that the order is so vitiated and suffered from serious infirmities, and that has resulted in manifestation of grave injustice. The revisional court will be slow to interfere with an order of acquittal passed by the court below after a full fledged trial proceeded against the accused on the charges levelled against him. However, if the circumstances presented by the materials produced in the case demonstrate that the order of acquittal is patently erroneous and illegal and it has resulted in grave injustice, there cannot be any doubt that appropriate orders have to be passed as are found necessary interfering with the order of acquittal. 7. I have perused the impugned judgment of acquittal with reference to the materials tendered in the case. I am afraid that the Magistrate has misread and misappreciated the evidence let in the case and the conclusion formed by him in support of the order of acquittal as against the accused who CRRP.953/03 9 faced trial, A2 to A4, is not only erroneous, but, patently unsustainable both under law and facts. The proved facts involved in the case would show that the defacto complainant PW1, the doctor who is alleged to have been subjected to assault and manhandling by the accused A1 to A4 was in occupation of the building door No.156 situate beside his house bearing door No.157, on a rental arrangement with the 3rd accused (A3). At the time of occurrence, the hospital conducted in door No.156 taken by PW1 previously on rental arrangement was managed by one Dr.Sabitha. The evidence let in the case would show that PW1 had filed a civil suit against his landlord to restrain him from forcibly evicting him from door No.156, and, it was pending before the court, when the incident involved in the case took place on the evening on 30.10.1995 at about 7 p.m. in front of the hospital. Whereas the accused canvassed a defence that PW1 voluntarily vacated the building, and while the furniture was being loaded in the vehicle brought in front of hospital some pieces fell down and PW1 sustained minor injuries the prosecution case was that the doctor, PW1, was assaulted by all the accused conjointly CRRP.953/03 10 and he was beaten with wooden reapers by A1 and A2 causing him injuries. Furniture was removed from hospital in a lorry on the date of incident, and it was later recovered by the police during investigation and handed over to PW1, the defacto complainant, remain undisputed in the case. As regards the assault on PW1, the doctor by the accused A1 to A4 conjointly prosecution relied on the evidence of the injured PW1 and two nurses employed in the hospital, PWs.2 and PW3. Though the evidence of PW1 is corroborated by material particulars by the evidence of PWs.2 and 3, the nurses, it is seen, the learned Magistrate has discarded the evidence of those witnesses as tainted and interested, and, further, doubted their presence in the hospital at the time when the incident occurred. On the date of occurrence prosecution has not established that any patient was admitted and treated in the hospital, and so much so, the presence of the nurses PWs.2 and 3 that they remained there to take temperature of the patients at the hospital, was found unacceptable to the court. Strangely enough, the learned Magistrate has discarded the evidence of PWs.2 and 3 holding CRRP.953/03 11 that consistency of testimony of the witnesses is not a sole test of truth and falsehood is often given adroit appearance of truth. PW2, one of the nurses failed to state the native place of Dr.Sabitha, who then conducted the hospital, and she had testified minute particulars as to the time of return of PW1 after attending the Government Hospital, it is seen, are reasons formed by the learned Magistrate to discard her evidence. I am afraid her evidence as a ocular witness who had seen the assault on the doctor PW1 was not at all appreciated by the learned Magistrate in the proper perspective, but, her sworn testimony was discarded on innocuous circumstances unworthy of any consideration. Similar is the case of appreciation of the evidence of PW3, the other nurse. The proved facts would show that in the building, wherein the hospital was conducted by PW1 on rental basis, about ten cots remained, which prima facie, indicated that the hospital provided inpatient treatment. When that be so, I find it strange for the learned Magistrate to doubt the presence of PWs.2 and 3 at about 7 p.m. in the evening in the hospital. The evidence of the nurse PW3 was doubted for CRRP.953/03 12 one more reason since she had stated in her cross examination that she had worked in a hospital conducted by PW1 earlier at a different place, and that persuaded the learned Magistrate to hold that she is a highly interested witness. The judgment rendered by the learned Magistrate would disclose none of the circumstances stated by PW3 as to her witnessing the occurrence of assault on PW1 was taken note of nor considered while dubbing her as an interested witness. The learned Magistrate lost sight of the fact that it is not the interestedness of the witnesses in the prosecution that has to be looked into, but, the question whether the witness has any interest against the accused to depose falsehood before the court. No material leave alone any circumstance was projected during the cross examination of PWs.2 and 3 to hold that these two witnesses had any animosity or illwill against any of the accused to perjure against them before a court of law so as to falsely implicate them in the grave offences imputed against them. PWs.1 to 3 had stated in their evidence that the front door of the hospital was closed and it was broken open by the accused. The learned Magistrate found it CRRP.953/03 13 incredible that the front door of the hospital was kept closed before the occurrence, to doubt the worth of the testimony of the injured PW1 and also PWs.2 and 3. The backdrop of the incident as to a threat of forcible eviction by the landlord, a vehicle being brought to hospital and the arrival of the accused armed with weapons, that too, according to PW1 with that of several other persons, are circumstances which would justify the version of the witnesses why the front door of the hospital was kept closed. Even if the witnesses have not stated that the door was closed seeing the arrival of the assailants, the doors remained closed, is not a circumstance, in the given facts of the case, to doubt the version of PW.1 and PWs.2 and 3. I have adverted to the appreciation of the evidence by PWs.2 and 3, the nurses simply to point out that this was not a case where the version of the injured that he was conjointly assaulted by the accused remained uncorroborated from any other source. Prosecution had produced natural witnesses present at the time of occurrence, PWs.2 and 3, that PW1, the doctor was assaulted by the accused, but the evidence of those witnesses was discarded by CRRP.953/03 14 the leanred Magistrate for flimsy reasons, and it cannot be sustained under law. 8. The evidence of PW1, the doctor, is in tune with the prosecution case. His evidence was discarded by the learned Magistrate for the reason there was delay in registration of the FIR. PW9, another nurse in the hospital, who was treated as hostile to the prosecution supported the defence version that while loading the furniture in the vehicle, it fell down. She heard the sound of the articles falling down. The lorry driver, who was cited as a prosecution witness later examined by the defence as DW1 has no case that anybody sustained any injury by the falling of pieces of furniture from the lorry while the furniture was loaded in the vehicle. PW9, the nurse, was treated by the prosecution as hostile, and in her evidence, she had stated that she left the hospital at 5 p.m. in the evening was lost sight by the learned Magistrate in accepting and giving credence to her version of the occurrence. PW1, has stated in his evidence that he was taken from the spot of occurrence to hospital by the Circle Inspector of Police, Adoor CRRP.953/03 15 who was examined as PW6 in the case. The F.I.R. in the case was registered only the next morning despite a superior officer of the police is stated to have taken PW1 to hospital was one of the reasons to discard the evidence of the injured. PW5, the doctor, who attended the injured had given evidence that the injured was brought to hospital by the C.I. of police, Adoor. However, PW6, the C.I. of police gave evidence that he reached the hospital later at 8 p.m. and he did not register the case since, according to him, it was only a civil dispute. That shows the manner in which the police dealt with the case right from inception. A civil dispute was already pending on account of threat of forceful eviction of PW1 from the building. In the given facts of the case, there is no reason to doubt the version of PW5, the doctor, that the injured PW1, the doctor was brought to hospital by the C.I. of police, PW6. The learned Magistrate has stated that the explanation given by PW6 that delay in registering the case is not satisfactory. Even if there was culpable criminal neglect on the part of PW6 in not registering the crime, in the given facts of the case, no court of law can permit that circumstance for throwing out the CRRP.953/03 16 case of the injured if the materials produced in the case established that there was conjoint assault on him, and after such assault, he was taken to the hospital by a superior police officer. The fracture suffered by PW1 is not stated at the time when he was examined by the doctor soon after he was brought to the hospital, but, only recorded in the wound certificate later after taking X-ray which is taken by the learned Magistrate to doubt the evidence of PW1 and also the prosecution case deserve to be taken note of only to be repelled as unworthy of any value. Needless to point out, a fracture that too over the nasal bone can be confirmed only after taking X-ray. I do not want to dilate on various other circumstances pointed out in the judgment by the learned Magistrate as to PW1, the doctor having active participation in the association of the doctors to doubt the testimony of PW5, the doctor, who treated him and absence of examination of Dr.Sabitha in the case etc. which are totally irrelevant and have no significance over the factum of assault on the injured PW1, the doctor. There is total misappreciation of the evidence of PWs.1 to 3, the injured and the two ocular CRRP.953/03 17 witnesses and also the other materials tendered by the prosecution. The Magistrate has accepted the defence version canvassed by the accused without appreciating the prosecution evidence. 9. The order of acquittal, if allowed to stand, no doubt, will cause miscarriage of justice. So much so, reversing that order of acquittal the matter has to be reconsidered afresh on the available materials tendered in the case. I do note that in view of the order of acquittal rendered in favour of A2 to A4, the proceedings arising from the police charge sheet had been quashed as against A1, against whom specific overtact is imputed of striking PW1 with a wooden reaper and causing him injury. Reversing the order of acquittal in favour of A2 to A4 and reconsidering the matter afresh as against those accused cannot have any impact on the order passed by this Court quashing the proceedings against A1. In the light of the reversal of acquittal by the order passed in the revision, it is for the State or the defacto complainant to take appropriate measures, if so advised, for annulling the order passed in CRRP.953/03 18 favour of A1, on which, I need not express any opinion. The order of acquittal rendered in favour of A2 to A4 is set aside and the court below is directed to consider the matter afresh in the light of the observations made above after affording reasonable opportunity of hearing to the counsel on both sides on the materials already tendered in the case and dispose the case in accordance with law. A2 to A4 are directed to appear before the court below on 12.10.2009. Revision is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.953 OF 2003 () ----------------------------------- O R D E R 24th day of August, 2009