IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 CRL.A.No. 1139 of 2002() ---------------------------------- CRA.42/1997 of ADDL.SESSIONS COURT, KOTTAYAM CC.83/1993 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... APPELLANT(S): 2ND RESPONDENT/COMPLAINANT: --------------------------------------------------------------------------- P.V.JOSEPH, PADAYATTIL VEEDU, KALLUPURACKAL BHAGAM, VELOOR, KOTTAYAM. BY ADVS. SRI.MATHEW JOHN (K) SRI.BABY THOMAS RESPONDENT(S): RESPONDENTS/ACCUSED AND NOT PARTY: ------------------------------------------------------------------------------------------- 1. MOHANAN, S/O. CHEERAN, ERAMBANATHUPATHIL HOUSE, KALLUPURACKAL BHAGAM, VELOOR, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.MOHAN JACOB GEORGE, SRI.S.RAJEEV. R2 BY PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.HEMA, J. ----------------------------------------- Crl.A.NO.1139 of 2002 ----------------------------------------- Dated this the 27th February, 2008 JUDGMENT This appeal arises from an order of acquittal. A complaint was filed by the police against the accused-respondent alleging offences under Sections 447, 448, 451 and 325 of the Indian Penal Code ('IPC', for short). After trial, the trial court convicted accused under Sections 448, 323 and 325 of the Indian Penal Code and he was found not guilty of offence under Section 324 IPC and acquitted. Sentence was also passed by learned Magistrate to pay a fine of Rs.300/- for offence under Section 448 IPC and in default of payment of fine, to undergo simple imprisonment for three months and to pay a fine of Rs.500/- and in default to undergo simple imprisonment for 3 months under Section 323 IPC and to pay Rs.750/- as fine and in default to undergo simple imprisonment for 6 months, for offence under Section 325 IPC. 2. In appeal, learned Sessions Judge set aside the conviction and sentence and acquitted the accused of all the charges. A revision was filed by the complainant challenging adequacy of the sentence and it was also dismissed. The present appeal is against CRA 1139/02 2 the order of acquittal passed by the learned Sessions Judge. 3. Heard. Perused the records. According to the prosecution, the accused is a police constable. He resides on the north-western side of complainant's house. There was a boundary dispute and the parties were on inimical terms with each other. On 19.5.1986 at about 12 mid night, while Pws 1 and 2 as well as other inmates were fast asleep, PW1 heard accused coming into their residential compound showering abuses. Pws 1 and 2 and other inmates woke up and went into the sit out opening the front door. On seeing the inmates of the house, the accused criminally trespassed into the sit out and beat PW2, the daughter of the complainant's brother. She fell down while complainant's brother intervened to rescue PW2. The accused then attempted to assault her also. 4. PW1 then intervened while the accused hit him with a stone and caused injuries below the left eye. He also stamped on the abdomen and PW1 fell down. He sustained fracture to ribs. Accused attempted to take out a belt from waste while PW1's sister intervened and caught hold of him. Both of them fell down and she lost her chain. The accused fell on the stones lying in the courtyard and sustained injuries. His father came and took him to residence. CRA 1139/02 3 While overpowering the accused both the father and the son fell down and sustained some injuries. The complainant was admitted in the hospital on 20.5.1996 and an FI statement was recorded and a crime was registered on the basis of the same. But the case was referred by the police, allegedly under influence of the accused and hence the complaint was filed. 5. PW1 and 2 were examined, Exhibits P1 to P3 were marked on the side of prosecution. The accused did not adduce any evidence, except pleading innocence. PW1 is the complainant and PW2 is his niece. Both of them corroborated each other in all material particulars. Though they were cross-examined, nothing was brought out to discredit their evidence. It was brought out in evidence that PW1 had gone to the hospital only on 20.5.1986, whereas the alleged incident is on 19.5.1986 at 12 AM. It was contended that PW1 sustained injury in a scooter accident and foisted a false case etc. 6. As per the allegations in the FI statement, the incident was at 3 AM on 20.5.1986. From the evidence given by PW1 and the document, it is clear that the incident happened more or less in the mid night on 19.5.1986, or it could also be early in the morning on CRA 1139/02 4 20.5.1986. The difference in time cannot be said to be a vital discrepancy to disbelieve the evidence of PW1 or PW2. It can also be seen that the PW1 was admitted in the hospital on 20.5.1986 itself, on the allegation of assault. He had fractures on the rib and injury below the left eye. Exhibit P3 is the discharge card which was issued to PW1 and marked through him. Exhibit P2 is the wound certificate which is also marked through PW1. The time of examination was 7.15 PM on 20.5.1996. 7. The trial court found that there is inconsistency with respect to time of occurrence and there is no explanation for the discrepancy. According to trial court, PW1 did not explain the delay in going to the hospital. But the evidence of PW1 shows that he had specifically stated the reason for not going to the hospital immediately. According to him, the accused is a police constable and he feared to go to the hospital. It cannot also be said that there was much delay. Within 24 hours of the alleged incident, he had gone to the hospital and for the mere reason of delay in going to the hospital, it cannot be said that PW1 was concocting a false case against the accused. 8. In this context it is relevant to note that there is no denial CRA 1139/02 5 from the side of the accused regarding the incident. There was a counter case as seen from the judgment. It appears to be the case of the accused that he had suffered some injuries in the course of incident. Such injuries are explained in the evidence by PW1 and PW2 also. They did not suppress anything, but stated that the accused had fallen down during the course of incident and injury would have been sustained as a consequence of fall. But, it is specifically stated that incident happened in the house of complainant. 9. The court below also found that none of the inmates of the house got admitted in the hospital, till the next day evening. Nor did they give any complaint to the police. But, it is clear from the evidence of PW1 coupled with the medical records that he had sustained fracture and other injuries. It cannot be said that he was causing injuries to himself to falsely implicate the accused in this case. Even though the accused has any counter allegation, nothing is brought out from the evidence adduced in this case that the accused had sustained injuries at the hands of either PW1 or his relatives. He had also not brought out in evidence whether the incident happened anywhere outside the compound of the CRA 1139/02 6 complainant, the mere fact that there are counter allegations and there was another case in which the accused was the defacto complainant, the prosecution case cannot be thrown overboard. The alleged discrepancy which the appellate court had taken into consideration to discard the evidence adduced by the prosecution cannot be said to be vital so as to enter a finding against the prosecution. 10. It is true that the doctor was not examined and no independent witness was examined. Independent corroboration may be necessary in cases where the court seeks assurance to the version given by occurrence witnesses. But in this case the evidence of PW1 and PW2 coupled with the facts and circumstances is more than enough to prove the prosecution case especially in the absence of any cross examination which would destroy the worth of their evidence. 11. An attempt is seen made for examining the doctor, but he was not available, as seen from the judgment of the trial court. Appellate court found that the counter case was disposed of earlier without being disposed of simultaneously. It is true that if a counter case is to be tried and disposed of simultaneously, so that CRA 1139/02 7 the court would be in a better position to appreciate the evidence. 12. Normally, the procedure should be to conduct the trial in both cases by the same court and dispose of the cases simultaneously. But, there is no specific provision in the Code of Criminal Procedure which mandates that a case and counter case should be tried and disposed of simultaneously. Such disposal is insisted upon because it will ensure a proper appreciation of facts and circumstances of the case and evidence adduced. Yet, even if both case and counter case are tried one after the other, evidence has to be adduced and all the relevant facts have to be brought out independently in each case. 13. The evidence adduced in one case cannot be used in the other to enter any finding. Even if the case and counter case are tried and disposed of simultaneously, the court cannot rely upon any materials or the evidence which are available in the other case. All the relevant facts ought to be adduced in each case. In the absence of this, however, the evidence adduced in a particular case cannot be discarded for the reason that counter case is not tried and disposed of simultaneously with main case. Everything depends on facts and circumstances of each case. CRA 1139/02 8 14. The mere existence of a counter case or even sustaining of injury by the accused is not sufficient to disbelieve the prosecution case. I am satisfied from the evidence adduced that prosecution has established various offences, for which, the accused was found guilty by the trial court. Conviction and sentence imposed by the trial court are therefore, upheld and the impugned order of acquittal in this appeal is set aside. This appeal is allowed. K.HEMA, JUDGE vgs.