IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 CRL.A.No. 676 of 2001(C) ------------------------ CC.68/1994 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... APPELLANT: -------------- STATE OF KERALA BY PUBLIC PROSECUTOR SMT. LAKSHMI RANI K.L RESPONDENTS: --------------- 1. JACOB, S/O ABRAHAM, KIZHAKKEDATHU HOUSE, PUNNATHURA KARA, ETTUMANOOR VILLAGE. 2. SIBY JACOB, S/O JACOB, KIZHAKKEDATHU HOUSE, PUNNATHURA KARA, ETTUMANOOR VILLAGE 3. ABRHAM, S/O JACOB, KIZHAKKEDATHU HOUSE, PUNNATHURA KARA, ETTUMANOOR VILLAGE 4. BIJU JOSEPH, S/O JOSEPH, ULLAMPALLIL, KIZHAKKUMBHAGAM KARA, ETTUMANOOR 5. BENCYTHANA, W/O JACOB, KIZHAKKEDATHU, PUNNATHURA KARA, ETTUMANOOR ADV. SRI.K.C.PETER THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01 /12 /2008. THE COURT ON 01/12/2008 DELIVERED THE FOLLOWING: V.K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Criminal Appeal No. 676 OF 2007 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 01st day of December, 2008 J U D G M E N T This is an appeal at the instance of the state, challenging an order of acquittal passed by Court of the Judicial First Class Magistrate, Ettumanoor in C.C 68/94. 2. The prosecution case is that due to the previous enmity of the accused towards PW1 and 2, with the common intention to cause injury to them, they obstructed PW1 and 2 who were traveling in a car at a place near to western gate of semithery of St. Mary`s church at Kattachira in public road at 8.30 P.M. on 30.08.93. The further allegation is that the accused after creating obstruction to the movement of the car by putting a jeep in front of it, A1 and A2 forceably pulled out PW1 and 2 from the car and wrongly restrained them and caught them on their shirt and dhoti. It is also the case that A1 stabbed on the face of PW1 causing cut injury on lips; A2 hit with hands causing injury on his left cheek and right side on neck; A3 hit on his right cheek with stone, causing cut injury and when PW2 obstructed the same; the Crl.A 676/01 : 2 : witnesses were threatened with death by all the accused and hit on PW2 by A1 to A4 causing injuries on his right cheek and chest and A5 uttered obscene words towards injured. On the basis of such allegations crime No. 275/93 was registered in the Ettumannor police station for the offences u/s 341, 323, 324, 294(b) and 506(i) r/w s.34 of IPC, After completing the investigation a final report was filed, on the basis of which a formal charge was framed against accused, which was read over and explained to them and they pleaded not guilty. During the further trial, PW1 to PW9 were examined and Ext.P1 to Ext.P7 were marked from the side of the prosecution. The defence took a stand of total denial. According to them, it is a false case preferred against them since they sent lawyer notice against the prosecution witnesses for a case of defamation. Finally, the court below found that prosecution has not succeeded in proving the case alleged against the accused beyond shadow of reasonable doubt and accordingly the accused acquitted of all the charges levelled against them. It is the above order of acquittal challenged in this appeal. 3. I have heard the learned Public Prosecutor and also learned counsel for the respondent / accused. The trial court after Crl.A 676/01 : 3 : elaborate consideration of the entire facts and circumstance and evidence and material on record found that prosecution has miserably failed to establish the case against accused. According to the prosecution, the accused attacked PW1 and 2 under the belief that it was at the instance of PW1, A2 was removed from his political party and that incident provoked the accused to attack PW2 and party. On the other hand, case set up by the defence is to the effect that A2 had issued the lawyer notice to PW1, PW2 and one Thomas Thazhappally alleging offence of defamation and it was that incident provoked the prosecution witnesses to prefer this false case. From the above version of prosecution witnesses and the accused, I am unable to understand what provoked the state to file this appeal against the order of acquittal. 4. The prosecution cited PW1 to 6 to prove the occurrence. PW1 and 2 are the persons injured. PW3, PW5 and PW6 turned hostile to the prosecution. PW4 is a relative of PW1 and 2 and according to him, he was not in the car. But he was in his house at the time of the incident. The only remaining evidence is that of PW1 and 2. The trial court after considering the evidence of PW1 and 2 found that their evidence contains full of contradictions Crl.A 676/01 : 4 : and embellishments and their evidence were not capable to inspire confidence of the court. It is come out in evidence, the place of occurrence was near to west gate of Semetheri of St. Mary`s church, the injured went to the District Hospital after traveling about 17 Km,. even though, there were Primary Health Centre and also Medical College Hospital. No explanation was forthcoming from the part of the prosecution witnesses. The learned counsel for the respondent also stated that distance between place of occurrence and the District Hospital is only 17 Km. As per the prosecution record, they reached in the hospital after taking 4 hours. According to the learned counsel the above fact itself is sufficient to cast doubt regarding the veracity of the prosecution case itself. The learned counsel also pointed out that though the prosecution case is to the effect that PW1 to PW4 were intercepted when they were traveling in a car by putting a jeep across the same, the said jeep was not recovered or seized by the police and there is no explanation for the same. There is no legal bar in admitting and acting upon the evidence of PW1 and PW2, though they are interested and injured, if their evidence are corroborated from independent sources. In the present case, absolutely there is no independent evidence in support of version Crl.A 676/01 : 5 : given by PW1 and 2. It is also brought out on record that prosecution witnesses and the accused were on enemical terms. In such a situation, unless and until the evidence of PW1 and 2 corroborated from a independent source no conviction can be possible on the basis of interested testimony of PW1 and 2 especially their depositions are contradictory in nature on material points. The court below has also considered the version given by defence that PW7, doctor who issued Ext.P3 certificate and father Thomas Thazhampilly are close friends. The other allegation, PW9 the Investigating Officer who laid charge against accused and Thomas Thazhampilly are native of Ramapuram and they are acquainted for the last several years. It is also the case of defence, A2 has filed a complaint against Father Thomas Thazhampilly, PW1 and 2 in the trial court and before filing that complaint A2 issued a lawyer notice to them. The trial court also found that driver of the jeep and neighbours were not questioned by the police and the jeep was also not seized by the Investigating Officer. The court below also found that there are material contradictions in the evidence of PW1 and 2 and after considering their evidence and medical evidence, court found that as per Ext.P2 there is only contusion on Crl.A 676/01 : 6 : the right cheek and upper lip of PW1. It is also found that similarly there is no external injury on the body of PW2, as per Ext.P3 wound certificate. The only injury noted is complaints of pain on the right chest and lower abdomen. Thus considering, the above facts and circumstances involved in this case, especially after evaluation of the evidence on record in the absence of independent witnesses, the court below found that the evidence of PW1, PW2, PW4 and PW7 is unbelievable and accordingly held that prosecution has not succeeded in proving the case against accused beyond shadow of reasonable doubt. On appreciation and evaluation of materials on record, I find no reason to take a different view so as to interfere with the order of acquittal passed by the court below. Therefore, the appeal fails. 5. In the result, there is no merit in the appeal and accordingly the same is dismissed. (V.K. MOHANAN, JUDGE) KMD