IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 3RD JULY 2007 / 12TH ASHADHA 1929 CRL.A.No. 1920 of 2004(A) ------------------------- SC.89/2003 of ADDL.SESSIONS COURT, KOTTAYAM CP.56/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... APPELLANT: COMPLAINANT: ----------------------- STATE OF KERALA REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI K.C.SANTHOSH KUMAR RESPONDENTS: ACCUSED: --------------------- 1. SIBI THOMAS, S/O. THOMAS, CHERUMALA HOUSE, KOOVAPPALLY BHAGOM, KOOVAPPALLY. 2. MANOJ, S/O. THOMAS, CHERUMALA HOUSE, KOOVAPPALLY BHAGOM, MOOVAPPALLY. 3. JOSE, S/O. THOMAS, CHERUMALA HOUSE, KOOVAPPALLY BHAGOM, KOOVAPPALLY. 4. ANTONY, S/O. THOMAS, CHERUMALA HOUSE, KOOVAPPALLY BHAGOM, KOOAPPALLY. BY ADV. SRI.SURESH BABU THOMAS SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & K.HEMA, JJ. -------------------------------- Crl.A.NO.1920 OF 2004 --------------------------------- Dated this the 3rd day of July, 2007 JUDGMENT Hema,J. This appeal is filed by the State. The challenge is against the order of acquittal. The respondents 1 to 4 were charge-sheeted for offences under Sections 302, 341, 324 read with Section 34 of the Indian Penal Code ('the IPC' for short). They were tried by the Additional Sessions Judge and acquitted and hence this appeal. 2. According to prosecution, PW-9 and the accused (respondents 1 to 4) were on inimical terms with each other, in connection with the timber business. Motivated by the said enmity, accused 1 to 4, in furtherence of a common intention, assaulted PW-9 and his father (the deceased-Joseph) and committed various offences. The incident occurred on 25/5/2002 in the night. There were two incidents at two places, in the course of the same -2- CRL.A.NO.1920/2004 transaction. The lst incident occurred at about 9 p.m. near the house of Kochu Kunhu, by the side of the mud road. It occurred while PW-9 was returning to his house along the road, after his work. The lst accused stopped PW-9 and wrongfully restrained him and beat with an iron-rod on his left shoulder, left thigh and head. PW-9 ran away, escaping from the clutches of the accused. 3. PW-9 reached the 2nd place of occurrence, i.e., near the house of John. At about 9.40 p.m., he was wrongfully restrained by the accused and on hearing the commotion, the deceased-Joseph rushed to the spot from his house, which was somewhere in the vicinity and attempted to intervene and prevent PW-9 from being attacked. At that time, the 3rd accused, with intention to kill the deceased-Joseph, and knowing that by his act, death will be caused, climbed onto the compound wall, took a granite stone and threw it on the head of the deceased-Joseph. The deceased Joseph sustained injury on the head and he fell down. People from the neighbourhood including PW- -3- CRL.A.NO.1920/2004 11, the sister of PW-9 rushed to the spot. PW-9 and deceased-Joseph were removed to the Hospital at Kanjirappally, from where, the deceased-Joseph was referred to the Medical College Hospital. After the treatment, both the injured were again sent back to the Kanjirappally Hospital from Medical College Hospital and treated there. 4. While PW-9 was under treatment in the hospital, on intimation from the hospital, First Information Statement was recorded from PW-1 and it is marked as Ext.P10. Based on the said statement, FIR was registered as Crime No.137/2002 at Kanjirappally Police Station and it is marked as Ext.P16. Investigation was conducted. Deceased-Joseph died at the hospital on 6/6/2002, as a result of the injury sustained by him. Report was given for altering the section and thereafter, a charge -sheet was filed against accused 1 to 4 for the offence under Sections 341, 324, 302 read with Section 34 of the I.P.C. 5. Prosecution examined PWs.1 to 20 and marked Exts.P1 to P27, and M.O.1 and M.O.2 on its -4- CRL.A.NO.1920/2004 side. The accused did not adduce any oral evidence; but marked Ext.D1 to Ext.D6 series on their side. The accused denied the entire allegations made against them. First accused filed a statement in writing raising certain counter allegations. According to him, PW-9 and CWs.2 and 3, who are close relatives, pelted stones at the house of 4th accused's brother, Mathai. When they were questioned about this, the lst accused was beaten up. The 2nd and 4th accused, who rushed to the spot, were also assaulted by them with stone. Deceased-Joseph was also present there at that time. When stones were pelted to the house of Mathai, Manesh and Mathai also pelted stones back to the assailants. The accused pleaded innocence of the allegations made against them. 6. On an analysis of the evidence in detail, the court below found that the prosecution has not established its case beyond reasonable doubt and hence the accused were acquitted of all the offences charge-sheeted against them. The said order of acquittal is challenged by the State on -5- CRL.A.NO.1920/2004 the various grounds which can be discussed as hereunder: The learned Public Prosecutor vehemently contended that there are two eye witnesses to the incident, out of whom PW-9 being the injured, his presence at the scene of occurrence cannot be doubted. It was also submitted that the evidence of the eye witnesses, whose version is supported by a portion of the evidence of hostile witness, is available in this case and hence any defect in the investigation of a counter case or in registration of FIR, non-examination of independent witness, absence of proof of motive, the discrepancies or omissions in the FIR, the improvement, if any, made in the evidence of eye witnesses, etc., cannot be made a ground to discard the evidence of eye witnesses. 7. This is particularly so, since the presence of the accused at the scene of occurrence was admitted by the accused, during cross- examination as well as in the statement given at the time of questioning under Section 313 -6- CRL.A.NO.1920/2004 Cr.P.C.,it is argued. It was vehemently contended that the evidence of the eye witnesses PW-9 and PW-11 ought not to have been discarded, in the light of the cogent evidence tendered by them, which has not been shaken in cross-examination. It was strongly argued that none of the reasons given by the court below for rejecting the evidence of PW-9 and PW-11 is not at all sustainable, legally. According to the learned Public Prosecutor, the evidence of PW-9 and PW-11 was rejected on unacceptable grounds. 8. PW-9 has given evidence in the chief examination, more or less consistent with the prosecution case. He explained the manner in which, the incident happened at two different places. He also stated that his father deceased- Joseph, his sister, his relatives and neighbouring witnesses had rushed to the scene and they had witnessed the incident. He narrated each of the overtacts committed by each of the accused in this case, as against PW-9 and also against the deceased-Joseph. He had also referred to the -7- CRL.A.NO.1920/2004 weapons used against PW-9 and the deceased-Joseph. According to PW-9, an iron-rod was used by the lst accused to beat him and inflict injuries on him and a stone was used on the deceased-Joseph by the 3rd accused. The stone was recovered from the scene itself and it was marked as M.O.1. Medical evidence was also adduced in support of the prosecution case, which reveals that the injuries sustained by the deceased-Joseph and PW-9 could be caused, as alleged by the injured. Referring to these facts, it was strongly contended that the evidence of PW-9 ought not to have been discarded, since it is corroborated by other evidence and circumstances. 9. On going through the impugned judgment, we find that the evidence of PW-9 is discussed in detail therein by the court below. The learned Sessions Judge referred to all the contentions raised by both sides and arrived at a conclusion that to prove the prosecution case, there is only an interested testimony of PW-9 and his evidence cannot be believed due to various discrepancies, -8- CRL.A.NO.1920/2004 which are discussed in detail in the judgment. According to the learned Sessions Judge, PW-9 could not have seen the incident, taking into account the position in which he was placed, at the time when the deceased-Joseph was attacked. the court below arrived at a conclusion that it would not be possible for PW-9 to state how his father had sustained injuries. Learned Sessions Judge noted that PW-9's face was completely pressed against the compound wall at a time when the deceased was being attacked and only after the accused had run away from the place that he could see the things, as seen from the version made by PW-9 in court. 10. Learned Public Prosecutor vehemently contended that the finding is not based on evidence; but pure surmises. A perusal of the evidence of PW-9 shows that witness has given evidence that he was pressed against a wall and he was being beaten from behind and hence he was not able to state in what manner he himself was beaten. It is clear from his evidence that he -9- CRL.A.NO.1920/2004 could not see what was happening behind him. In the light of the above nature of evidence given by PW-9, the conclusion arrived at by the learned Sessions Judge cannot be said to be based on surmises or imaginations, as argued by the learned Public Prosecutor. On an analysis of the evidence of PW-9, it may appear that the chance of PW-9 in witnessing putting of a stone on the head of the deceased-Joseph is not quite probable, though he asserted at various places that he had seen the 3rd accused putting the stone on the head of the deceased-Joseph. 11. In the light of the version given by PW- 9, two views are possible, i.e., either he could not have seen what was going on at the back side or, may be, he had strained himself to see what was happening behind, while he was being attacked. But, PW-9 did not state specifically that he had taken effort to see what was happening to his father, though his own evidence will reveal that he could not see who was attacking the witness himself from behind. This fact was not clarified -10- CRL.A.NO.1920/2004 in re-examination also. At any rate, even if two views are possible and two inferences may be drawn, the view which is favourable to the accused has to be accepted, is the settled position. In such circumstances,the finding entered into by the court below cannot be said to be totally unsustainable, as argued. 12. The question is whether PW-9 can be believed or not. It is clear from the evidence of PW-9 that the witness and the accused are on inimical terms with each other, even prior to the incident. This fact to be borne in mind before the evidence of PW-9 is analysed. According to PW-9, the accused was motivated to attack PW-9, since there was some difference of opinion in connection with timber business and they were on inimical terms and the accused had also assaulted PW-9 earlier. PW-9 deposed about the details of the motive in the chief examination itself. 13. On going through the evidence given by PW-9 in the chief examination, it is possible to infer that PW-9 and his relatives were more -11- CRL.A.NO.1920/2004 motivated against the accused rather than the accused themselves being motivated against PW-9 and deceased Joseph to commit an offence of this nature. In the light of the defence version that an attack was actually made by PW-9 and his close relatives against the accused at the house of Mathai, it is essential that the alleged motive is examined in more detail. PW-9 deposed that prior to the incident on 9/3/2002, there was a dispute between the accused and his brother in connection with timber business. There was also an attempt to settle the matter, while PW-9 and his brothers were assaulted. Following this, PW-9 sustained injuries and he was treated in the hospital for 11 days. Though a statement was taken by the police from PW-9, no case was registered, PW-9 stated. 14. It is also deposed by PW-9 that in connection with the same incident, his father had also given a complaint, but the police did not take any action in connection with the same. According to PW-9, it is in view of the above enmity that the accused committed offence, as -12- CRL.A.NO.1920/2004 alleged. On a close examination of the motive spoken to by PW-9, it would appear that PW-9 and his family members were aggrieved by the inaction on the part of the police in not proceeding against the accused, even though PW-9 and his brother were assaulted by them. 15. PW-9 and his father were injured at the hands of the rival group and they were hospitalised for a considerably long period and hence, in all possibilities, PW-9 and his relatives would have nurtured an enmity towards the accused's brother, rather than the accused being motivated to attack PW-9 and others. There is every possibility for PW-9 and his relatives to retaliate. PW-9 does not have a case that he of his family members had done anything against the accused so that a counter attack on PW-9 and others was possible. 16. In this background, the counter allegation made in this case has to be appreciated. According to the accused, PW9 and his brothers who are cited as CWs.2 and 3 pelted -13- CRL.A.NO.1920/2004 stones at the house of one Mathai, who is the brother of 4th accused in this case. Mathai and his son Manesh and others pelted stones back to the assailants, who are PW-9 and Cws.2 and 3. In the incident accused 1 and 3 were allegedly injured. According to the accused, a complaint was also lodged before the police, as early as on 29/5/2002 which was even prior to the lodging of the FIR in this case. A4 had given a complaint alleging assault made by PW-9 and his brothers against the accused. 17. First Information Statement given by A4 is marked as Ext.P22. Based on Ext.P22, FIR was also registered as crime No.136/2002 and it is marked as Ext.P23. It is also in evidence that the accused 2 and 4 were hospitalised in the same hospital where PW-9 and deceased were admitted and that too, prior to latter's hospitalisation. The wound certificates relating to accused 2 and 4 were also marked as Ext.P18 and P19. It is seen from these documents that both the accused had sustained lacerated injuries. It is also seen -14- CRL.A.NO.1920/2004 from the wound certificates and the evidence of the doctor that an allegation was made to the doctor as early as on 25/5/2002 at 11.30 p.m., at the time of admission in the hospital that PW9 and his brothers CW-2 and CW-3 and deceased Joseph had assaulted him in the same night. 18. As per the allegations in the First Information Statement lodged by the 4th accused, Ext.P22, the incident happened on the road situated in front of the house of the 4th accused. Thus as per the counter allegations there was an incident in which PW-9, CW-2 and CW-3, A1 and A4, Mathai and Manesh were also involved. On going through the records in this case, it is clear that at the 2nd place of incident is more or less in front of the house of A4. 19. In this background, an attempt must be made to find out as to how exactly the incident happened, as per the available evidence on record. On a reading of the evidence of PW-9, it is clear that he is guilty of various suppressions. Whenever questions were put to him -15- CRL.A.NO.1920/2004 indicating that there was an attack on the accused and that they were also injured, hospitalised, etc., he was either evading the answers or attempting to suppress material facts which could be known to him. The documents produced in this case already establish that A2 and A4 had sustained lacerated injuries in the course of the same incident. In fact, the Investigating Officer candidly admitted that they had sustained injuries. 20. If as a matter of fact, A2 and A4 had sustained lacerated injuries of considerable nature in and around the same incident, it is only natural and probable that PW9 would be in a position to explain how those injuries were caused to A2 and A4. But, when PW-9 was cross-examined regarding these aspects, he stated that he was not even aware of any counter allegation being made against him. It has come out from the evidence of PW9 that he knew that A2 and A4 were hospitalised in the same hospital. But his case is that he did not know how they were injured. If the persons, -16- CRL.A.NO.1920/2004 who allegedly attacked PW9 and his father, were in the same hospital and if PW-9 comes to know of it, in all probabilities PW9 would have been anxious to know why they were hospitalised or at least he would try to ascertain whether there was any false counter allegation being made etc. 21. But PW9 deposed that he did not know that there was any case taken up against himself and his relatives for allegedly causing injuries on A2 and A4 at the same place, time and date. It is difficult to accept the version of PW-9 that he was totally unaware as to how injuries were sustained by A2 and A4 or at least what exactly was the allegation made by them against PW-9 etc. It is evident that PW9 was trying to suppress the most material aspect in this case. Anyway, it is evident from the evidence on record that on the same day, time and place (2nd place) A2 and A4 were injured. But neither PW-9 nor other eye witness, PW-11, could explain as to how the accused were injured. 22. The attitude of the Investigating Officer -17- CRL.A.NO.1920/2004 in this regard also cannot be understood. It is relevant to note that no investigation was conducted to find out how A2 and A4 sustained injuries in the same incident for which they were hospitalised. It is the duty of the investigating officer to make an investigation into the allegations made by the accused as well and find out how they sustained injuries etc. The prosecution has to place the entire facts before the court so that a right decision could be taken by the court in the matter. Though, as per the First Information Statement given by the 4th accused, he himself and the 1st and the 2nd accused were assaulted by PW9, CW-2 and CW-3, the Investigating Officer admitted before court that as per the refer report filed in the counter case (Crime No.137/02), none of the assailants (PW9 and CW-2 and CW-3) were questioned by him. Any Investigator would necessarily question the alleged assailants to find out whether the allegation made against them are true. No attempt was made to proceed against PW-9 and others who -18- CRL.A.NO.1920/2004 are the alleged assailants in the counter case and there is no explanation why PW9, CW-2 and CW-3 were not even questioned by the Investigating Officer. 23. PW9 stated in the cross examination that he was not asked by the police whether he himself and his brothers had inflicted any injury on the accused. In this connection, it is also relevant to note that CW-2 and CW-3, who were also allegedly assaulted by A1, A2 and A4, were not examined in court. Since the evidence and various documents reveal that they were also present at the time of occurrence at the second place of incident, their evidence would have been vital to aid the court to arrive at the truth. But they were held back, without any explanation. 24. It is also to be noted that even without examining PW9, CW-2 and CW-3, who allegedly inflicted injuries on A2 and A4, Investigating Officer, who filed the refer report in the counter case has surprisingly come forward with an explanation as to how the injuries were sustained -19- CRL.A.NO.1920/2004 by A2 and A4. According to PW18, he had submitted the refer report in the counter case and he had verified the investigation. The refer report is marked as Ext.P24. He deposed in cross examination that he came to know that the 2nd accused sustained injuries while CW-2 pushed him down and he fell on a stone. 25. It is also stated by PW-18 that A4 sustained injuries, while he was pushed down by PW9, while the latter was being assaulted. PW-18 further deposed that the refer report does not show that the relevant accused were questioned in the counter case. It is not understood as to how the investigating officer has come to the conclusion, the manner in which A2 and A4 sustained injuries, even without questioning PW9, CW-2 and CW-3, who alone could have explained how these injuries were sustained. 26. It is also to be noted that even the accused in this case were not admittedly questioned in connection with the counter case. It is, therefore, reasonable to infer that no proper -20- CRL.A.NO.1920/2004 investigation was conducted into the counter case, but the case was referred, without any basis, stating that it is false. There was evidently a partisan attitude in this case in investigating into the case and also a failure in placing all relevant materials before court. Consequent this, the court is not in a position to reach a conclusion as to how the incident could have happened and how A2 and A4 sustained injuries in the course of the same incident. 27. The evidence of PW-9 and PW-11 is not at all helpful to find out as to how the accused sustained injuries. While analysing the evidence of eyewitness, the absence of explanation of injuries on the accused which could be caused in the course of the same incident will certainly tell upon the veracity of the version. Their evidence discloses that they are suppressing various facts to their convenience and such evidence cannot be accepted for face value. 28. In this connection another fact is also relevant. Though, as per the allegations in the -21- CRL.A.NO.1920/2004 First Information Statement given by the 4th accused, the incident happened on the road situated in front of his own house and it has come out from the evidence of PW9 that the 2nd incident happened in front of the house of the 4th accused, the prosecution produced scene mahazar and a plan in the counter case, describing the place of incident as one situated near Kunhu's house. The accused had no case that any incident had happened near Kunhu's house; but according to them, the incident occurred only in front of the house of the 4th accused. 29. If that be the case, the scene can only in front of A4's house and not near the house of Kunhu, and it is in evidence that those places are distantly placed. It is not understood under what circumstances the police described the scene of occurrence in the counter case as a place situated near Kunhu's house which is totally different from the place alleged by the 4th accused. The said discrepancy is also not explained in evidence and there is evidently certain manipulations. -22- CRL.A.NO.1920/2004 30. In this connection a perusal of Ext.P8 will be relevant. Ext.P8 is the site plan, which was prepared by the Village Officer on the basis of a scene mahazar in the counter case. The plan which is prepared on 28/5/2002, must have been prepared much prior to the registration of the crime in this case. The offence involved at that time, necessarily will not include any offence under Section 302 I.P.C. But Ext.P8 refers to offence under Section 302 I.P.C. It is not clear how such a reference could be made in Ext.P8. This discrepancy is not explained. 31. From all the above facts, an inference possible may be,