IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 Crl.Rev.Pet.No. 2006 of 2003() ------------------------------ SC.512/2001 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CP.10/2001 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER: INJURED - PW 2: ------------------------------------ K.V. THOMAS, S/O. K.P. VARGHESE, KAPPLANGATTEL HOUSE, KADAYIRIPPU P.O., KOLENCHERY. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENTS: ACCUSED AND STATE: --------------------------------- 1. GEORGE, S/O. DAVID, THENGANAL VEETTIL, VELAMPOORKARA, AIKARANAD NORTH VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBILC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN ADV. SRI.C.T.JESTIN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.2006 of 2003 ---------------------------------------- Dated this the 29th day of October, 2009 ORDER The revision petitioner is the defacto complainant in S.C.No.512 of 2001 on the file of the Additional Sessions Judge (Adhoc)-II, Ernakulam. The first respondent is the accused. The first respondent was prosecuted by the Circle Inspector of Police, Puthencruz for offence under Sections 452, 341, 506(ii), 324, 326 and 307 r/w.34 I.P.C. After the trial the first respondent was found not guilty. Consequently, he was acquitted under Section 235 of the Code of Criminal Procedure. Assailing the legality, correctness and propriety of the above judgment of acquittal, this revision petition was preferred. 2. The brief facts of the case are that the revision petitioner and the respondent are on inimical terms due to property disputes and civil cases were pending between them. While so, a civil suit was decreed in favour of the revision petitioner and that aggravated the enmity. It is alleged that at 11 p.m. on 2/2/2000 the first respondent along with his son Binu & two other persons, whose identity could not be ascertained, were armed with deadly weapons like knife, wooden reaper and handle of spade and they committed criminal trespass to the Crl.R.P.No.2006 of 2003 2 courtyard of the house of the revision petitioner and the revision petitioner, who had been out of the house for micturating the child, was stabbed by the first respondent. The son of the first respondent beat him with the handle of a spade. Two other persons, who could not be identified also assaulted the revision petitioner and the child with reaper. Hearing the cry PW.1, the brother of the revision petitioner, who was residing 100 metres away, rushed to the house. He alarmed the neighbours. The revision petitioner and the child were rushed to the Medical Mission Hospital, Kolanchery. From there the revision petitioner was referred to the Specialist Hospital, Ernakulam. After admitting the revision petitioner at the Specialist Hospital, on the next day PW.1 rushed to the Puthencruz police station and lodged Ext.P1, First Information Statement before PW.15, the Head Constable. On the basis of Ext.P1 First Information Statement, a case as crime No.43/2000 was registered by PW.15 against the 1st respondent, his son Binu and two others. The investigation was taken over by PW.16 the then Circle Inspector. He questioned the witnesses, recorded their statements and arrested the first respondent and on the basis of the so-called Crl.R.P.No.2006 of 2003 3 statement given by the first respondent, recoveries were also made. While so, PW.16 was succeeded by PW.17. PW.17 completed the investigation and laid the charge sheet against the first respondent before the Judicial Magistrate of the First Class, Kolenchery. The learned Magistrate took cognizance and proceeded as C.P.10/2001. On finding that the offence alleged is triable by a court of Sessions, after complying the requisite procedures, the case was committed to the court of Session, Ernakulam from where it was made over to the Additional Sessions Judge (Adhoc)-I, Ernakulam. 3. After hearing the prosecution and the first respondent the learned additional Sessions Judge, framed a charge for the above said offence. Since the first respondent pleaded not guilty, he was sent for trial. On the side of the prosecution PWs.1 to 17 were examined and Exts.P1 to P13 were marked. During the course of cross-examination PWs.1, 2 and 4, Exts.D1 to D3, certain portions of case diary statements were marked as contradictions. MOs.1 to 7 were also marked. 4. After closing the evidence for the prosecution the first respondent was questioned under Section 313 of Code of Crl.R.P.No.2006 of 2003 4 Criminal Procedure. He denied the incriminating evidence and contented that the revision petitioner and the family members were on inimical terms and influencing the police, the case was falsely foisted. Though the first respondent was called upon to enter his defence, no defence evidence was let in. The learned Additional Sessions Judge on appraisal of the evidence arrived a finding against the prosecution. Consequently the first respondent was acquitted. Now the revision. 5. I heard the learned counsel for the revision petitioner, first respondent and the public prosecutor. 6. In support of the prosecution case, the evidence of PWs.1 to 4 were relied upon. PW.1 is the first informant who is the brother of the revision petitioner. PW.2 is the victim the revision petitioner. PW.3 is the daughter of PW.2 who is a child witness. PW.4 is the wife of the revision petitioner. The evidence of PW.1 would show that he is residing about 100 metres away from the spot of occurrence. According to him, hearing the cry, he rushed to the house of PW.2 and found the first respondent, his son and other two unidentifiable persons running away from the spot of occurrence with knife, reapers & handle of spade in hands. Crl.R.P.No.2006 of 2003 5 7. The evidence of PW.2 would show that he had adduced evidence in support of the prosecution case. According to him, he was stabbed twice by the first respondent and beaten by the son of the first respondent. As a result he sustained fracture of the right arm. The evidence of PW.7 coupled with Ext.P3 wound certificate would show that PW.2 had penetrating wound 2x2x3cms right arm about 10 cms above medeal epicondyle, 5x3x4cm just above lateral epicondyle, 5x5cm contusion and deformity on extensar aspect middle third of right fore arm. Closed communated # right ulna, middle third. The evidence of PW.7 coupled with Ext.P4 wound certificate would show that PW.3, the daughter of PW.2 had lacereted wound 3x1 cms back of right arm, contusion right lumbar and hypocondyl region and contusion on scapula both sides. The evidence of PW.2 coupled with the evidence of PW.7 and Exts.P1 to P4 would show that in fact PW.2 had sustained injuries as deposed by him. PW.3 also had sustained injuries. 8. PW.4, the wife of PW.2 had also deposed that hearing the cry she rushed out of the house and found that the first respondent stabbing the revision petitioner and son of the first Crl.R.P.No.2006 of 2003 6 respondent and other two unidentifiable persons beating PWs.2 and 3 with reapers. 9. Having gone through the evidence of PWs.1,2,3,4,7 and Exts.P3 and P4, there is evidence on record to conclude that revision petitioner had sustained injuries. The question which then arise is whether it was inflicted by the first respondent as alleged by the prosecution. According to the learned counsel for the revision petitioner there is absolutely no reason to disbelieve the evidence of PWs.1,2,3 and 4. Though they are interested witnesses, their presence at the spot of occurrence is justified and they are quite natural witnesses. It was further submitted that the knife which was marked as MO.6, the handle of spade which was marked as MO.1 and wooden reaper which was marked as MO.2 were seized from the house of the first respondent on the basis of the statement given by him and that the recovery leads to the complicity of the first respondent with the offence alleged. 10. MOs.1, 2 and 6 were produced by the prosecution as if those material objects were seized on the basis of the statement given by the first respondent while he was in custody. It is Crl.R.P.No.2006 of 2003 7 pertinent to note that the so-called statement given by the first respondent was not brought in evidence. Prosecution case that MOs.1,2, and 6 were seized on the basis of the statement given by the first respondent cannot be given reliance for want of production of the statement. Adding to the above, though it is stated that the material objects contained blood stains, it was not sent for analysis and there is no scientific report to the effect that any of the material objects contained any blood stain. So the recovery of MOs.1,2 and 6 would not support the prosecution to prove the complicity of the first respondent. 11. To disbelieve the prosecution case, the learned Additional Sessions Judge had taken note that there was delay in launching the first information statement and delay in forwarding the first information report. It is seen that Ext.P1 was recorded at 1p.m. on 3/2/2000. Since the incident occurred at 11p.m. on 2/2/2000 and PW.2 was taken from one hospital to another, the injured was not in a position to go to the police station and give the statement immediately. The evidence of PW.1 would show that after he admitting PW.2 at the Specialist Hospital, Ernakulam he had gone to the police station and give Crl.R.P.No.2006 of 2003 8 the statement. Explanation for the delay in giving first information is believable. In fact I find there is no delay in launching the first information statement. 12. A reading of the First Information Statement would show that the son of the first respondent was implicated for having the revision petitioner beaten with the handle of a spade. In the box Pws.1,2,3 and 4 had implicated the son of the 1st respondent. The evidence of PWs.5 and 11 would show that the son of the revision petitioner was in fact at Thiruvananthapuram at the time of occurrence where he was studying in ITI, Chakka. The evidence of PWs.5 and 11 would show that, the son of the first respondent was falsely implicated. False implication is apparent. The very case of the prosecution is that existing property dispute between the revision petitioner and the first respondent culminated in the crime. In the above circumstance, false implication cannot be ruled out. It is very unsafe to rely upon the interested testimony to arrive a finding of guilty. It is for that main reason the prosecution case was disbelieved by the trial court. It cannot be said that the reasoning given by the lower court is unsustainable. If the evidence of PWs.1, 2 and 4 is Crl.R.P.No.2006 of 2003 9 analysed in this background the possibility of false implication cannot be ruled out. The evidence of PW.1 would show that there is a little chance for he seeing the first respondent and his son running away from the spot of occurrence. From Ext.P5 it is seen that there is no straight way from the house of the PW.1 to the house of the revision petitioner. A look at Ext.P5 persuades to conclude that on the way, PW.1 couldn't see the persons standing at the court yard. He could see only after coming to the court yard. It is revealed that there are other close neighbours. None of them heard the cry or seen the assailants. In the circumstance, the evidence of PW.1 that he had seen the first respondent or son or other persons mentioned running away from the spot is not believable. So the trial court was justified in disbelieving PW.1. 13. If the evidence of PW.4 is taken into consideration, the revision petitioner was stabbed only once. But according to PW.2 he was stabbed twice. Thus the evidence of P.Ws.2 and 4 did not tally with. It is in the above circumstances and taking note that there was long standing disputes and civil case between the revision petitioner and the first respondent, the Crl.R.P.No.2006 of 2003 10 learned Additional Sessions Judge, who had occasion to watch the demeanour of the witnesses disbelieved the evidence of P.Ws.1 to 4. While sitting in revision, it is rather unable to find that the court below went wrong. It didn't appear to be a glaring case of injustice or fundamental principles of appreciation of law and evidence is violated so as to be rectified in exercise of revisional powers. 14. In Bansilal v. Laxman Singh (1986 S.C.1721) at paragraph 9 it is held as follows: "The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a retiral of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution." The position of law regarding the power of exercising a revisional jurisdiction being the above, I find that there is little reason to interfere with the appreciation of evidence by the learned Additional Sessions Judge. Crl.R.P.No.2006 of 2003 11 15. It is true that there is evidence to the effect that the revision petitioner and her daughter sustained injury. But the question is regarding the complicity of the revision petitioner. The evidence of P.Ws.1 to 4 are found not believable. It is a question of appreciation of evidence. For the reasons stated earlier, it could not be held, that the trial court committed serious error in disbelieving the witnesses. Convincing reasons are given by the trial court to find in favour the defence. There is little reason to interfere with the finding of acquittal. In the result, the revision petition fails. Accordingly it is dismissed. P.S.GOPINATHAN, JUDGE skj.