IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 CRL.A.No. 631 of 2011() ----------------------- SC.958/2006 of ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC)III KOLLAM. .................... APPELLANT(S): DE-FACTO COMPLAINANT ---------------------------------- T.K.ANANTHAKRISHNAN, S/O.T.K.KUMARAN AJARI, TUDILVEETTIL, MULAVANA, KOLLAM DT. BY ADV. SMT.G.VIDYA RESPONDENT(S): ACCUSED 1-6 -------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. MURALIDHARAN S/O.VELU, TUDIL VEEDU, KANNIMEL MUKKU, KULAVANA CHERI, KULAVANA, KOLLAM. 3. SAJI, S/O.MURALIDHARAN, TUDIL VEEDU, KANNIMEL MUKKU, MULAVANA CHERI, MULAVANA, KOLLAM. 4. GIREESH, S/O.MURALIDHARAN, TUDIL VEEDU, KANNIMEL MUKKU, MULAVANA CHERI, MULAVANA, KOLLAM. 5. RATHEESH S/O.MURALIDHARAN, TUDIL VEEDU, KANNIMEL MUKKU, MULAVANA CHERI, MULAVANA, KOLLAM. 6. ANIL S/O.MURALIDHARAN, TUDIL VEEDU, KANNIMEL MUKKU, MULAVANA CHERI, MULAVANA, KOLLAM. 7. RAJESH S/O.MURALIDHARAN, TUDIL VEEDU, KANNIMEL MUKKU, MULAVANA CHERI, MULAVANA, KOLLAM. PUBLIC PROSECUTOR MR. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.631 OF 2011 ----------------------------------- Dated 27th May, 2011 J U D G M E N T This appeal arises from an order of acquittal. Defacto complainant filed this appeal under proviso to section 372 of Code of Criminal Procedure. 2. According to prosecution accused 1 to 6 (respondents 2 to 7) due to previous grudge, formed themselves into an unlawful assembly, wrongfully restrained PW5(appellant), abused him in filthy language and attacked him by using weapons and voluntarily caused hurt to appellant, in prosecution of the common object of the assembly and thereby committed various offences under sections 142, 147, 148, 341, 294(b), 323, 324, 326, and 308 read with 149 IPC. 3. To prove prosecution case, prosecution examined PW1 to PW7 marked Ext.P1 to P13. Accused did not adduce any oral evidence, but marked Exts.D1 and D2 on their side. Trial court, on analysis of the evidence, found that to prove the case there is Crl.A. No.631/11 2 only sole evidence of PW5. It is not quite reliable. It was also found that prosecution suppressed many vital aspects. Recovery of weapon was not effected and the doctor who examined PW5 was not examined. 4. Learned counsel for appellant submitted that wound certificate was marked as Ext.P12 which shows fracture on ulna (left) and right hand little finger. He had gone to District Hospital on the next day of the incident. He had also gone to Joel Hospital prior to his admission in District Hospital. Trial court did not consider these aspects, it is argued. 5. On hearing both sides and on going through impugned order, I find that as per prosecution case, on 21.6.2004 at about 9.30 pm, PW5(appellant) allegedly sustained two fractures. But as per Ext.P12, PW5 was examined only on the next day, 22.6.2004 at 8 am. According to accused, PW5 molested daughter of first accused on 21.6.2004 at 7.30 pm, and a case was also registered against him on 22.6.2004 at 9.30 am and certified copy of FIR is Ext.D1. After the incident, people of the locality had manhandled PW5 on 22.6.2004 morning, for outraging the modesty of first accused's daughter. 6. The case against PW5 under section 354 IPC was Crl.A. No.631/11 3 compromised. But those facts are suppressed by prosecution even though PW5 admitted about compromise in cross examination. The trial court on consideration of rival contentions held as follows: “The case of PW5 is that on 21.6.2004 at 9.30 pm first accused and his son caused hurt to him from a place at Pattamukku, while he was going to his house alighting from a bus at Kannimukku. Prosecution has not produced any records to show that PW5 was treated on 21.6.2004 in any Hospital. The first information statement Ext.P4 is also silent regarding these material particulars. It is fatal to the prosecution case. Prosecution has suppressed many material facts. The FIR Ext.P5 was registered on 22.6.2004 at 7.30 pm. But the FIR reached the court only on 24.6.2004. This also creates doubt as to the veracity of the case. The defence case is that the local people manhandled injured on 22.6.2004 morning for outraging the modesty of the daughter of first accused. The prosecution has suppressed material facts of the case. The evidence of PW1 is also with improvements and contradictions. The sole testimony of PW5 is not reliable. He has not even undergone treatment on 21.6.2004. The doctor who examined PW5 was also not examined. The material objects used by the accused persons had also not been recovered by the prosecution. The investigating officer PW7 has arrested accused nos.1,3,4 but the weapons used by them were not recovered.” There is no reason to interfere with the above findings. They are only reasonable and sound. I do not find any perversity in the Crl.A. No.631/11 4 findings entered into by trial court. Though case of PW5 is that he was examined by a doctor in Joel Hospital on 21.6.2004, there is no evidence to prove this. Such facts are not stated in the first information statement also. In such circumstances, I do not find any ground to admit this appeal. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True Copy //