IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 CRL.A.No.1648 of 2004 (C) -------------------------------- CC.100/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANUR. .................... APPELLANT: COMPLAINANT -------------------------------- BIJU ABRAHAM, PAYYAMBALLIL, S/O. ABRAHAM, VELLAD AMSOM DESOM, KANNUR DISTRICT. BY ADV. SRI.P.NARAYANAN RESPONDENTS: ACCUSED ------------------------------ 1. CHETTIYASSERIL THOMMAN @ THOMAS, VELLAD DESOM, AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 2. KUTTIKKATTIL CHACKO, S/O.PHILIPOSE, VELLAD AMSOM DESOM, TALIPARAMBA TALUK. 3. ETTANIL APPACHAN @ JOSEPH, S/O. ABRAHAM, VELLAD AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 4. ETTANIL BENNY, S/O. JOSEPH, VELLAD AMSOM DESOM, TALIPARAMBA TALUK. 5. ETTANIL BABU S/O. JOSEPH, VELLAD AMSOM DESOM, TALIPARAMBA TALUK. 6. VELLIKKAKATH JOYI @ JOSE, S/O. ABRAHAM, VELLAD AMSOM DESOM, TALIPARAMBA TALUK. CRL.A.No.1648 of 2004 (C) -2- 7. VELIKKAKATH ABRAHAM @ PAPPACHAN S/O. AUGUSTINE, VELLAD AMSOM DESOM 8. KUTIKKATTU MANOJ @ TOMI, S/O. CHACKO, VELLAD AMSOM DESOM. 9. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1648 of 2004 ------------------------------------------------ Dated this the 19th day of March, 2008 JUDGMENT This is appeal filed with leave by the complainant in C.C.100/98 on the file of the Judicial First Class Magistrate's Court, Payyanur assailing the acquittal of the respondents of offence under Sections 143, 147, 148, 341, 323 and 324 IPC read with Section 149 thereof vide Section 248 (1) of the Cr.P.C. 2. The complaint was filed by the appellant on the allegation that at about 8.30 p.m. on 03/03/92 when he was returning home from Karuvanchal following his paternal uncle/ Joseph and reached the road in front of the house of one Varghese all accused forming themselves into an unlawful assembly and in prosecution of their common object to cause hurt, all the respondents/accused abruptly Crl. Appeal No.1648 of 2004 -2- jumped into the road from the rubber estate and A2 with a stick held in his hand dealt a blow on the head of Joseph, but it fell on the shoulders of Joseph as he averted the blow aimed at his head; that Joseph raised alarm that he is being done away with and attempted to take to heels to save himself and then all respondents/accused intercepted Joseph and A1 with a piece of reaper struck on the left knee of Joseph and Joseph fell on the road sustaining injury and pleaded that he may not be done away with; that thereupon A4 sat on his chest and held the hands of Joseph by forcibly placing his legs on his hands and attempted to cause his murder by strangulating him and while so, A6 forcibly opened his mouth and A3 from a Can held by him poured illicit liquor into the mouth of Joseph for which A7 and A8 rendered assistance by lighting torch and they also kicked Joseph along with the Crl. Appeal No.1648 of 2004 -3- other accused and seeing all this the appellant came running to the scene of occurrence pleading that Joseph may not be done away with and thereupon A5 uttering that no one will be spared, caught hold of the neck of the appellant and attempted to strangulate him and thereupon, the appellant's brother Sebastian came over to the scene and A1 with a dangerous stick beat on the head of Sebastian and A7 exhorted A1 to stab Sebastian and thereupon, A1 again beat Sebastian just below his left and right eye and A1 beat Sebastian on his head with a stick which blow fell on his left shoulder and Sebastian sustained fatal injuries and fell to the ground and A3 beat Sebastian on his nose with the Can and poured illicit arrack on his body; A1 kicked him on the lower abdomen and A6 kicked on his chest and voluntarily caused hurt to him; that seeing all this the appellant got wriggled out Crl. Appeal No.1648 of 2004 -4- of the clutches of A5 and attempted to save Sebastian and A1 thereupon, dealt a blow on his head and caused injuries on the right side of his head and while he was about to fall, A5 struck on his face with a stone and injury was caused to his lips and his tooth got dislocated and A3 beat him with the Can and caused pain to him; that seeing all this, another elder brother of the appellant by name Varghese came running to the scene and thereupon, A4 and A5 struck on his face and back of chest with stones and caused injuries to him and A2 beat him with a stick and Varghese who attempted to escape was pelted by A4, A5 and A8 and seeing all this Joseph of Kuttianimattam, Vellarappallil Antony and Koothanadiyil Narayanan came rushing to the scene and thereupon, all respondents/accused ran towards house of A2; and that but for the intervention of the aforesaid persons the Crl. Appeal No.1648 of 2004 -5- respondents/accused would have done away with Joseph, Sebastian, Varghese and himself. 3. It is further alleged that the appellant, his brothers Sebastian and Varghese and his paternal uncle Joseph were taken to Thaluk Headquarters Hospital, Thaliparamba by Vellarappallil Antony and Payyamballil Chackochan. It is his further case that his paternal uncle was having with him in his loin an amount of Rs.10,000/- that being price obtained on sale of dried ginger and the said cash as also a Seiko-5 watch worn by the said Joseph were stolen away by the respondents/accused and that the respondents/accused have committed the above crime as they were maintaining animosity towards Joseph/the paternal uncle of the appellant; as also towards the appellant and their family. 4. The appellant further alleged that while himself, his brothers Sebastian and Crl. Appeal No.1648 of 2004 -6- Varghese as also his paternal uncle/Joseph were undergoing treatment in the hospital, police came over there and himself and brothers gave statement to the police and the police also took signatures in blank papers from Joseph/the paternal uncle of the appellant stating that it is for matters being written up neatly in consultation with Sub Inspector, but that it is not seen that against real culprits police have taken any action worth mentioning and the case has been registered against the accused in C.C.394/92 with the avowed object of saving them from the case. On the above allegations, the appellant alleged that the respondents/accused have committed the offence punishable under Sections 120(B), 143, 147, 148, 341, 342, 323, 324, 328 and 307 IPC read with Section 149 thereof. 5. The Judicial First Class Magistrate, Thaliparamba before whom the complaint was Crl. Appeal No.1648 of 2004 -7- filed recorded the sworn statement of the appellant and witnesses and took cognizance of the offence under Section 143, 147, 148, 341, 323 and 324 IPC read with Section 149 thereof and registered the complaint on the file of his court but later, the case was transferred to the Judicial First Class Magistrate's Court, Payyanur where the case was renumbered as C.C.100/98. 6. On appearance of the respondents/ accused in the court below, they engaged their own lawyer to defend the case on their behalf. On behalf of the appellant PWs.1 to 8 were examined and Exts.P1 to P5 were got marked. As the materials on record afforded sufficient ground for presuming that the accused have committed the offences alleged, the learned Magistrate framed charge against the respondents/accused under Sections 143, 148, 341, 323 and 324 IPC read with Section 149 Crl. Appeal No.1648 of 2004 -8- thereof; read over and explained it to them and questioned them. Thereupon, they pleaded not guilty and consequently, a trial of the case was conducted by the court below. The witnesses were thereupon further examined by the defence and PW9 was also examined. 7. On the appellant closing his evidence, the accused were questioned under Section 313 Cr.P.C. Thereupon, they generally denied all incriminating circumstances appearing in evidence against them and maintained that they are innocent. However, they did not adduce any evidence in defence. 8. The court below considered the case in the light of the evidence adduced as aforesaid and according to the counsel for the appellant, simultaneously with C.C.98/98 which is the case registered against some of the respondents/accused on the basis of police report and C.C.99/98 registered against PWs.1 Crl. Appeal No.1648 of 2004 -9- to 4 as counter to C.C.98/98 on the basis of police report and acquitted the accused in all these cases vide judgments dt.12/12/03. It is submitted that there is no appeal filed against the judgment of acquittal both in C.C.98/98 and C.C.99/98. 9. I have gone through the judgment assailed and the entire evidence adduced in the case and also heard the submissions of the counsel for the appellant and the Public Prosecutor for respondent No.9 as R2 has expired and the case against him stood abated and respondents 1 and 3 to 8 did not enter appearance though served. 10. The occurrence in the case has taken place as early as on 03/03/92. It is long thereafter that on 10/12/93 that the complaint is filed by the appellant in the court below. It is on the basis of the F.I.statement given by the paternal uncle of the appellant by name Crl. Appeal No.1648 of 2004 -10- Joseph that crime had initially been registered against the assailants who had lodged an attack against the appellant, his brothers and their paternal uncle/Joseph. There is no grievance for the de facto complainant/Joseph that the police have not properly recorded his statement and has helped the accused by distorting his version regarding the occurrence given in the F.I.statement. It is the appellant who files the complaint after more than one and a half years alleging that the police have not properly conducted investigation in the case and has distorted the versions given to them by the witnesses and the de facto complainant. 11. Ext.P2 is the wound certificate in relation to the injuries sustained to the appellant in the alleged occurrence. The history and the alleged cause of injury stated as against column No.9 by the appellant is Crl. Appeal No.1648 of 2004 -11- that at night by about 8.45 p.m. he was beaten by certain persons who can be identified at sight. The injuries sustained to the appellant were lacerated wound 2 cm x 0.5 cm on the right side of back of scalp and lacerated wound of 2 cm x 0.5 cm on the ankle. 12. The injuries sustained to Joseph the paternal uncle of the appellant are the following:- 1) Pain over the left side of chest. 2) Multiple abrasions on the front of knee joint (left). 3) Abrasion 1 cm x 0.5 cm on the right shoulder joint. 13. The cause of injury stated by him as evidenced from Ext.P3 wound certificate is that he was beaten at about 8.45 p.m. on the Velladu road by Chettiassary Thomas Joseph; Valiaparambil Thomas and yet another person who can be identified at sight. Ext.P4 shows Crl. Appeal No.1648 of 2004 -12- that Varghese/the brother of the appellant had the following injuries:- 1) Bruise - 2 cm x 1 cm on left cheek 2) Bruise - 2.5 cm. X 1 cm on the left shoulder blade. 14. The cause of injury as disclosed by him to the Doctor as seen from Ext.P4 is that he was beaten by Chettiassary, Thomman, Appachan, Babu, Chacko, Valiaparambil Thomas, Tomi, Joy, Pappachan and others who could be identified by sight. The said Varghese is not examined as a witness in the case. 15. Ext.P5 wound certificate shows that Sebastian another brother of the appellant had sustained the following injuries:- 1) Lacerated wound - 2 cm x 0.5 cm on the left eyebrow. 2) Lacerated wound - 1.5 cm x 0.5 cm on the right eyebrow. 3) Lacerated wound 2 cm. X 0.5 cm on the Crl. Appeal No.1648 of 2004 -13- back of scalp. 16. The cause of injury as disclosed by him to the Doctor is that he was beaten at 8.30 p.m at Koralplavil by Babu, Benny, Thomman, Appachan and others who can be identified at sight. 17. Ext.P3 wound certificate in relation to PW4 Joseph/the paternal uncle of the appellant and Ext.P5 wound certificate in relation to PW3 Sebastian/the elder brother of the appellant shows that there was smell of alcohol on them though they were not under influence of alcohol. The injuries which the appellant alleges to have been inflicted on himself, his brothers and on his paternal uncle do not stand substantiated by the wound certificates made mention of above as the injuries do not correspond to the detailed infliction of injuries made mention of in the complaint. Further, it is seen that in Crl. Appeal No.1648 of 2004 -14- relation to the same occurrence, police had charge sheeted case and counter and those were C.C.98/98 and C.C.99/98. Those cases and C.C.100/98 from which this appeal has arisen were being tried and disposed of simulta- neously by the learned Magistrate vide judgments passed on 12/12/03 and in all these cases the accused were being acquitted. The intention of the appellant in filing this appeal which has been rightly dismissed by the learned Magistrate by a considered judgment is only to harass those persons against whom he had filed the complaint, with a view to harass them. The evidence tendered by the occurrence witnesses also do not appear to be consistent and corroborating each other. The appellant who has filed the complaint in the court below complaining that the crime registered on the basis of F.I.statement given by PW4/Joseph who is his paternal uncle was recording a Crl. Appeal No.1648 of 2004 -15- distorted version by the police, has not produced even a copy of the F.I.statement so given by PW4/Joseph. The narration of events in the complaint goes to show that the appellant was not walking close to heels with PW4/Joseph, but was reaching the scene of occurrence only much later after PW4 has sustained injuries and this is evidenced even from the allegations in the complaint. It is further strange as to how the brothers of the appellant also arrives at the scene. PW1 has admitted in cross examination that Crime No.49/02 was registered on the allegation that on the same date and at the same place injuries were inflicted by beating with stones on Chacko, Mary and Babu wherein Sebastian, Joseph and others are accused and that is pending as C.C.99/98; and that the witnesses therein are the accused in this case. He has also stated that Crime No.48/92 has been Crl. Appeal No.1648 of 2004 -16- registered on the basis of F.I.statement given by his paternal uncle/Joseph from the hospital and that is pending as C.C.98/98. When asked about that case he pleads ignorance as to whether there are nine accused in that case. He has also pleaded ignorance when asked as to whether his paternal uncle Joseph had not filed C.M.P.400/98 on 08/07/92 and that had not been forwarded to the police under Section 156(3) Cr.P.C and therein the allegations were only those which attracted offence under Sections 341 and 323 IPC read with Section 34 thereof. He also pleads ignorance as to whether on the basis thereof Crime No.125/92 was registered at the Alakkodu Police Station and whether Thomas and Benny were excluded from the array of accused in the said case. Though the appellant alleges that the present complaint had been filed as Final Report in Crime No.48/92 on the basis of which C.C.98/98 Crl. Appeal No.1648 of 2004 -17- was registered was not consistent with the allegations made therein, none of the prosecution records in that case is produced to show that the allegation had been diluted by the Police in the course of the investigation. It is also worthy to note that Joseph the paternal uncle of the appellant on whose F.I.statement was Crime No.48/92 registered has no grievance that the police have distorted his version in the F.I. statement and has diluted the gravity of the offence when he is the best person to have grievance in that matter. While giving evidence, the appellant has also stated of his grievance that Section 307 had not been taken cognizance of by the Magistrate while taking cognizance of the offence on the basis of his complaint. The intention is clear that he wants to prosecute the respondents/accused before a Sessions Court for having committed offence Crl. Appeal No.1648 of 2004 -18- inter alia under Section 307 IPC. When asked about the arraying of A8 and his subsequent attempt to get him deleted, the appellant has deposed that on 09/07/01, he made an application to delete A8; that A8 is the son of A2 and that when A2 passed away A8 appologised to him and it was therefore, that he was sought to be deleted. It is not necessary in the circumstances of this case that the entire evidence adduced on the side of the appellant is discussed in detail and suffice to say that the evidence tendered by witnesses are not consistent or corroborating and that the circumstances show that complaint was filed by the appellant not being satisfied with the case registered on the basis of F.I.statement given by PW4/Joseph who is his Paternal uncle as the said case did not take in grave offences so as to have the respondents/accused prosecuted before a Crl. Appeal No.1648 of 2004 -19- Sessions Court. This Criminal Appeal is filed maliciously and with ulterior motives and there is absolutely no merit at all in this Criminal Appeal assailing the acquittal of respondents 1 to 8 by the court below. Consequently, this criminal appeal deserves only to be dismissed. 18. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-