IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 CRL.A.No. 2573 of 2008() --------------------------------- SC.107/2007 of ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM .................................................................. APPELLANT(S): ACCUSED IN SC NO.107/2007: ------------------------------------------------------------------ JOSEPH @ REJI, AGED 35, S/O.LATE JOSEPH, CHIRATTAVELIKUZHY, NEDUMKUNNAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): COMPLAINANT IN SC NO.107/2007: ---------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KARUKACHAL POLICE STATION BY ADV.SRI.C.S.HRITHWIK, GOVERNMENT PLEADER. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.2573 of 2008 ------------------------------- Dated this the 23rd day of March, 2010. J U D G M E N T The sole accused in Sessions Case No.107/07 of the Addl. District and Sessions Judge (Ad hoc-II), Kottayam, is the appellant who challenged his conviction and sentence u/s.447 and 307 of IPC. 2. The prosecution case is that PW1, the injured herein, was working as a clerk in the State Bank of Travancore. The accused is a relative of PW1 and there was a dispute between the accused and his sister Molly. The accused being the relative of PW1, PW1 interfered in the dispute and arrived in certain agreement through mediation, at the instance of the injured- PW1. But the sister of accused deviated from the agreement arrived in the mediation. On the basis of some enemity developed in the accused against PW1, on 14.1.2006 at about 7.30 P.M. with an intention to cause grievous hurt to PW1 and to murder him, the accused carrying acid in a jar, trespassed into Crl. APPEAL No.2573 of 2008 2 the northern side of the courtyard of house No.III/36 of Nedumkunnam Panchayat, where in the victim was residing with family and came near the backside window of the centre room of the said house and the accused called PW1 and responding to the call, he came near to the window and immediately the accused poured the acid from the jar on his body and thus he sustains injuries. 3. On the basis of the above allegation, Crime No.6/06 was registered in Karukachal Police Station, for the offences punishable u/s.447, 326 and 307 of IPC. After investigation in the above crime, a report was filed by the police based upon which C.P.No.4/07 was instituted, in Judicial First Class Magistrate Court-I, Changanassery, from where the case was committed and the case was renumbered as S.C.No.107/07. On the appearance of the accused after hearing the prosecution as well as the accused, a formal charge was framed u/s.447, 326 and 307 of IPC against the accused and when the same was read over and explained to the accused, he denied the same Crl. APPEAL No.2573 of 2008 3 and pleaded not guilty, as a result of which the trial continued, during which the prosecution has adduced the evidence consists of oral testimonies of Pws.1 to 15 and the documentary evidences such as Exts.P1 to P13. No evidence either documentary or oral adduced from the side of the defence. No material objects was also produced and marked. The incriminating circumstances and evidences which emerged during the time of prosecution evidence were put to the accused u/s.313 of Cr.P.C. but he denied the same. 4. The accused has also filed a statement u/s.313 of Cr.P.C., to the effect that when PW1 was working in the bank, the sister of the accused who was working in Austria as Nurse used to make deposit cash in her account maintained with that bank. PW1 and some other bank officials have misappropriated Rs.10,20,000/- from her account and with respect to this misappropriation, a complaint was filed in the Karukachal Police Station against PW1, the victim in the present case and others. It is further stated that, after the complaint was filed before the Crl. APPEAL No.2573 of 2008 4 police, PW1 agreed to pay the amount to Molly, as and when he received his voluntary retirement benefits and sent back her. Thus on 14.1.2006 when PW1 saw the accused at Nedumkunnam, PW1 told him that he was ready with the money and asked the accused to reach his house to make telephone call to the sister of the accused. Thus accordingly, the accused went to the house of PW1 and when he reached the house, at the path way the accused attacked PW1 with acid in a can and due to the scuffle acid fell on the body of PW1 and on the accused. So according to the accused, he is no way responsible for the injuries sustained by the accused. 5. On the basis of the rival pleadings and the materials and evidence on record, the trial court formulated 4 points for its consideration. Finally the trial court found that, the accused is guilty of the offence charged u/s.447 and 307 of IPC and he is acquitted of the offence u/s.326 of IPC. On the basis of the above finding of conviction, the trial court sentenced the accused to undergo rigorous imprisonment for 7 years and also Crl. APPEAL No.2573 of 2008 5 to pay a fine of Rs.10,000/- and in default to undergo imprisonment for 6 months u/s.307 of IPC. He is also sentenced to undergo rigorous imprisonment for 3 months u/s.447 of IPC. The substantiative sentence was ordered to run concurrently and set off was allowed and out of the fine amount, he is directed that Rs.5,000/- shall be given to PW1 as compensation. It is the above order of conviction and sentence challenged in this appeal. Pursuant to the above judgment, the accused is undergoing imprisonment from the date of the judgment. 6. During the pendency of this appeal, the defacto complainant-PW1, the victim in this case, has filed an affidavit dated 23.5.2009 before this court, which is notarized by Adv.shri.Abraham Joseph, Notary, Kottayam. In the said affidavit, it is stated that the accused is a distant relative of the deponent and subsequent to the conviction, the appellant is undergoing imprisonment and as he is the sole bread winner of his family which consists of wife and 3 minor children, PW1 compounded and condoned the act of the accused and he has Crl. APPEAL No.2573 of 2008 6 no objection in compounding and acquitting the accused and releasing him from jail. 7. I have heard Adv.sri.C.Varghese Kuriakose, the learned counsel appearing for the appellant and the learned Public Prosecutor and I have perused the impugned judgment of the trial court and also the evidences and materials on record. Keeping in mind, the subsequent development including the filing of the said affidavit, let me consider the merits of the case. 8. It is true that when PW1 was examined, he had deposed before the Court in terms of the prosecution case but according to him the accused attacked him because of his involvement as a mediator in the dispute between the accused and his sister and he sustained the injury as a result of the attack of the accused. Whereas, the specific plea taken by the accused is to the effect that PW1 was enemical to the accused, as the sister of the accused filed an objection against PW1 and the accused was attacked by PW1, after having invited him to the house of the defacto complainant. From the evidence on Crl. APPEAL No.2573 of 2008 7 record and from the rival pleading, it appears that regarding the injury sustained by PW1 and the accused, there is a rival and conflicting pleading. In order to substantiate the prosecution case, the main evidence relied on by the prosecution is that of PW1-the injured and his wife PW2. Going by the evidence of PW2, it can be seen that she came to the spot only on hearing the cry of his husband and the presence of PW2 was not there at the inception of the incident. It is also beyond dispute that, the accused has also sustained injury on his body and the prosecution has miserably failed to explain, as to how accused sustained injuries on his body. In the absence of any independent evidence, regarding the genesis of the incident and who is the aggressor which resulted in the clash, it is unsafe to convict the appellant based upon the sole evidence of PW1, who is also an injured. As there is no concrete and independent evidence regarding the origin of the incident, the prosecution version that, the accused is the aggressor can not be believed. 9. The facts and circumstances involved in the case, Crl. APPEAL No.2573 of 2008 8 especially in the light of the evidence on record, it can be seen that the appellant and PW1 are relatives and they were in good terms and they maintained a cordial relationship. As per the prosecution case. the main dispute is between the accused and PW1. On the other hand, it can be seen that there is a dispute between the accused and his sister also. It is true that, if the evidence of prosecution is taken as true, the accused had thrown acid on the body of PW1. But the said incident alone is not sufficient to hold that the accused had an intention to commit murder of PW1, especially in the light of the cordial relationship between the accused and PW1. In the absence of any other incriminating evidence or materials, especially when the defence had effectively disputed the origin of the clash and when there is no independent evidence regarding the same, it can not be held that the accused had maintained an intention to commit murder of PW1. 10. In the light of the above discussion, especially in the light of the evidence and materials referred above, I am of the Crl. APPEAL No.2573 of 2008 9 view that, the prosecution has miserably failed to establish the case against the accused beyond shadow of doubt. Consequently, the benefit will go in favour of the accused/appellant and the conviction and sentence recorded by the trial court is liable to be set aside and I do so. In the result, this appeal is allowed setting aside the judgment dated 28.10.2008 in Sessions Case No.107/07 of the Court of Sessions Judge, Kottayam Division and the appellant/accused is acquitted from all the charges levelled against him. As the conviction and sentence imposed against the appellant is set aside and he is acquitted from all the charges levelled against him, he is entitled to get released from jail, forthwith, if he is not required in any other case. The Criminal appeal is allowed accordingly. V.K.MOHANAN, Judge. ami/