IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.L.P..No. 372 of 2009() ----------------------------------- CC.7/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPPALAM .................... PETITIONER/COMPLAINANT: ------------------------------------------- P. SHAHUL HAMEED, 47 YEARS, S/O.MUHAMMED, PULAKKAL VEED, POST KUNDOORKKARA (VIA) PATTAMBI, KARAKKAD AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI MR.R.SREEHARI RESPONDENTS/STATE & ACCUSED: ---------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUBRAMANIAN @ BALAN, AGED 44 YEARS, S/O.CHATHAN, ARIYATHUPARAMBIL VEED, KAVALAPPARA AMSOM, ERUPPE DESOM, OTTAPPALAM TALUK. 3. ABDUL RIYAS, AGED 37 YEARS, S/O.ABDUL KADHER, PUTHANPURAKKAL, MUNDAMUKA AMSOM DESOM, SHORANUR, OTTAPALAM TALUK. 4. RAMAKRISHNAN, S/O.KANDAN, AGED 41 YEARS, CHATHANCHERI PARAMBIL VEEDU, MUNDAMUKA AMSOM, DESOM, SHORANUR, OTTAPALAM TALUK. R1 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.L.P.NO.372 OF 2009 ------------------------------ Dated this the 3rd day of June, 2009 O R D E R This petition is filed for leave against the order of acquittal passed by the JFCM, Ottapalam in C.C.No.7/1997. The accused were charge sheeted for the offences under Sections 323,324 and 326 read with Section 34 of the I.P.C and after the conclusion of the trial, originally the trial court convicted them and the matter was taken in appeal and in appeal the conviction and sentence was set aside and the matter was remitted for further trial and disposal. Thereafter, the trial was conducted and it had ended in acquittal of the accused. It is against that decision, the appeal is preferred. The trump card or the material document on the basis of which the prosecution case has gone against the present complainant is Ext.B1 and the evidence of DW3. It is the case that the complainant had gone to the Paris lodge at Shornur to meet Usman and get back an amount of Rs.25,000/= which he had borrowed. While they were talking, it is alleged that 2 CRL.L.P.NO.372/09 Usman received a phone call and while he was conversing the accused made a hue and cry and disturbed the talk, which the defaco complainant did not like. Thereafter when objection was raised he was fisted, taken to a corner and stabbed with a knife and resulted in sustainment of the injuries. 2. On the contra, the defence appears to be that there was a phone call and while the defacto complainant was talking, there was some disturbance and being annoyed with the same, he came and attacked one of the accused with a knife by stabbing him on the chest resulting in injuries to that person and there was an altercation between the accused and the complainant for getting the knife and in that process the complainant had sustained some injuries. The matter has been very elaborately considered by the learned Magistrate and the learned Magistrate on the basis of Ext.B1 and also the evidence available, arrived at a decision that the probability of the defacto complainant being the aggressor cannot be ruled out and that the injuries sustained could be on account of the 3 CRL.L.P.NO.372/09 subsequent altercation that ensured between the complainant and the accused. Ext.B1 was the First Information Statement given by the accused in Crime No.191/1996. It was recorded by the Head Constable. In that, it has been stated that when the accused created an unpleasant scene, PW1 himself was talking over phone was denied. The suggestion of the learned counsel was that PW1 was irritated by the noise, had abused the accused and had taken a knife from the hip and stabbed. The medical evidence also would reveal that the 4th accused had sustained stab injuries on the chest and it has been proved by the doctor, who had treated him. The 4th accused had an incised wound, 2 c.m in length, on the left side of the chest. According to DW2- the doctor, the said injury could be inflicted by way of stab with a knife. It was submitted that several persons were available in front of the Paris lodge at the time of the incident, but nobody except the defacto complainant has been examined in this case. So, the trial court considered the over all evidence in the matter and came to the conclusion that it cannot be ruled out that 4 CRL.L.P.NO.372/09 PW1 might have been the aggressor and further that the injuries sustained by him should have been caused as a result of the altercation that ensued thereafter. It is not arrived at on a misappropriation of evidence but on the materials which will create a suspicion in the mind of any reasonable man. Therefore, I do not find any ground to give special leave in this matter and therefore, Crl.L.P is dismissed. M.N. KRISHNAN, JUDGE cl 5 CRL.L.P.NO.372/09 6 CRL.L.P.NO.372/09