IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 CRL.A.No. 1209 of 2001() ------------------------ CC.555/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... APPELLANT(S)/COMPLAINANT -------------- JOSEPH, S/O VARGHESE, ODUVELIL VEEDU, CHAKKAKKANAMBHAGAM, NEDUMKANDAM KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S)/ACCUSED --------------- 1. C.P.PRAKASH, P.C.1133, NEDUMKANDAM POLICE STATION, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK 2. V.N.PADMAKUMAR, P.C.1462, -DO- 3. M.K.BABU, P.C.1400, -DO- -DO- 4. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM. ADV. SRI.S.ANANTHASUBRAMANIAN FOR R1 SRI.S.SHYAM FOR R1 SRI.BOBBYMATHEW KOOTHATTUKULAM FOR R1 SRI.LATHEESH SEBASTIAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.1209/2001 -------------------- Dated this the 18th day of February, 2009 JUDGMENT The complainant in C.C.No.555/1996 on the files of the Judicial Magistrate of First Class, Nedumkandam, is the appellant herein. The accused was prosecuted for the offences punishable under Sections 294(b) and 323 IPC read with Section 34 IPC. It was alleged that PWs1 to 3, PW1 being the complainant, had gone to see a cinema in Darsana Talkees on 31.3.1996 and they were returning at 11.45 p.m., and while they reached near the Breeze bakery at the western junction, Nedumkandom, a private jeep stopped near them. The Sub Inspector of police was there inside the jeep. Suddenly, the accused person and other police constable got down from the rear side of the jeep and as per the direction of the Sub Inspector, the complainant and others were forcibly taken to the police station, Nedumkandom, and they were kept in the police station for the whole night. They were assaulted and hurt was caused to them and were discharged only Crl.A.1209/2001 2 on the following day morning at 8.00 a.m. PWs4 and 5 were waiting outside the police station to get them enlarged on bail and according to them, they saw the accused persons assaulting PWs1 to 3. PW6 the doctor examined them. The Court below, on appreciation of the evidence, found that the complainant has not been able to prove guilt of the accused persons beyond reasonable doubt and proceeded to acquit the accused under Section 255(1) of the Cr.P.C. The appeal is preferred against the same. 2. I heard learned counsel for the appellant. 3. Reference is made to the testimony of PWs1 to 3 who were allegedly kept in the lock up on the date of incident. A clear suggestion was made to them regarding previous enimity between PWs1 and the accused persons. It seems that there is another case pending before the Assistant Sessions Court, Kattappana, against PW1 and others for attempting to commit murder of the first accused. Pendency of the case was admitted by PWs1 to 3. In so far as PW4 is concerned, it came about that according to him, the Crl.A.1209/2001 3 first accused had demanded a sum of Rs.100/-, which he was not ready to pay. They also did not have a good relationship. PWs4 and 5 deposed that they have been friends of PWs1 to 3 for a long time. 4. The Court below took note of the lack of effort on the part of the complainant to summon any document to show that the accused persons were kept in lock up on 31.3.1996 and 1.4.1996. What is of crucial significance and this has been so appreciated by the Court below, that the complaint was filed after a period of four months from the date of incident and this long delay went without proper explanation. Learned counsel for the appellant submits that according to the complainant, he and PWs2 and 3 had given a statement to the Sub Inspector of police and they had expected that a crime will be registered and investigation conducted, in accordance with law. This was the reason for the delay for not lodging the complaint, within a reasonable time. I find it difficult to accept this contention. The accused persons were police constables. If they had given a statement against the accused persons and found that action was not forthcoming from the Station House Crl.A.1209/2001 4 Officer, then, they should have become wise within a reasonable time and proceeded to file a complaint before the Magistrate. They have not resorted to this course of action. No disability as such is pleaded by the complainant for the long delay in filing the complaint. 5. This is coupled with the fact that there is clear suggestion of previous enimity between PW1 and the accused persons and pendency of the case against PW1 and others before the Assistant Sessions Court on an allegation regarding an attempt to murder the first accused. This is clear from the testimony of PWs1 to 3. There is also a suggestion regarding enimity between PW4 and the accused. 6. For all these reasons, I am of the view that the order of acquittal does not warrant any interference. Accordingly the appeal is dismissed. V.GIRI, Judge mrcs