IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 CRL.A.No. 1510 of 2005() ------------------------ SC.200/2000 of ADDL. SESSIONS COURT (ADHOC), THALASSERY .................... APPELLANTS: ACCUSED: ---------------------- 1. SAJEEVAN, S/O. C.V. CHANDU, PAYYANNUR AMSOM, THALIPARAMBA TALUK, KANNUR DISTRICT. 2. A.V. AJAYAN, S/O. RAMAN, PAYYANUR AMSOM, THALIPARAMBA TALUK, KANNUR DISTRICT. 3. SANTHOSH, S/O. KUNHAMBU, PAYYANNUR AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 4. MANOJ, S/O. P.V. APPU, PAYYANNUR AMSOM, THALIPARAMBA TALUK, KANNUR DISTRICT. 5. CHITHRAN, S/O. BALAKRISHNAN, PAYYANNUR AMSOM, THALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SUNIL NAIR PALAKKAT FOR R PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. Appeal No.1510 of 2005 ------------------------------- Dated this the 3rd day of June, 2010. J U D G M E N T The accused A1 to A4 and A6 in S.C.No.200/00 are the appellants herein and they are challenging their conviction and sentence u/s.143, 147, 148, 333 r/w. s.149 of IPC imposed by the Addl. Sessions Court (Ad hoc-1), Thalassery, vide its judgment dated 10.8.2005 in the above Sessions Case. 2. At the outset it is to be stated that during the pendancy of this appeal, the defacto complainant and the appellants have entered into a compromise and settled the dispute out of court and accordingly they filed Crl.M.A.No.5140/10 dated 26.5.2010. 3. The prosecution case against the accused is that, on 26.11.1998 at about 12.15 in the night, the accused themselves formed into an unlawful assembly armed with weapons with an intention to cause grievous hurt to CW1/PW2, the Cabin Man of the railway station, on account of their previous enmity and with the above intention assaulted CW1/PW2 at the platform of Payyannur Railway Station, while he was coming back to Crl. Appeal No.1510 of 2005 2 resume his duty after taking food. 4. On the said allegation, Crime No.408/98 was registered in the Payyannur police station and after investigation, a report was filed in the Judicial First Class Magistrate, Payyannur, whereupon C.P.No.56/99 was instituted and by order dated 28.3.2000, the learned Magistrate committed the accused to the Sessions Court and thus the above Sessions Case was instituted in the Sessions Court, Thalassery. On appearance of the accused, a formal charge was framed for the above offences and the accused denied the charge, when the same was read over and explained to them, consequently the trial was continued, during which Pws.1 to 7 were examined and Exts.P1 to P6 were produced and marked and there was no defence evidence either oral or documentary. The material object produced was marked as M.O.(1). The learned Sessions Judge after appreciation of evidence and materials on record, came into a conclusion that the accused had committed the offence charged against them and accordingly they were convicted and Crl. Appeal No.1510 of 2005 3 sentenced. Thus the accused were sentenced to undergo simple imprisonment for 3 months for the offence u/s.143 of IPC and 1 year simple imprisonment for the offence u/s.147 of IPC and in rest of the case, simple imprisonment of 2 years also imposed u/s.148 of IPC. The accused altogether were sentenced to undergo simple imprisonment for 2 years u/s.333 of IPC and to pay a fine of Rs.10,000/- and in default of payment of fine, each of the accused were directed to undergo simple imprisonment for 6 months. It has ordered that, the sentence shall run concurrently and set off was allowed. It has also ordered that, on realisaiton of the fine amount the same shall be paid to PW2. It is the above sentence and conviction challenged in this appeal. 5. The learned counsel for the appellants submitted that, the materials and evidence produced by the prosecution are not sufficient to hold that the accused have committed the offence punishable u/s.333 of IPC. In order to substantiate the above point, the learned counsel invited my attention to para 10 of the Crl. Appeal No.1510 of 2005 4 impugned judgment. The learned Sessions Judge in para 10 of his judgment, has held that “ The prosecution has claimed that PW2 was on duty during that time. Though PW4, the Station Master, admitted that the PW2 was on night duty on that day and cabin man used to go out for his primary needs after getting permission from the Station Master, no records are produced by the prosecution to prove that PW2 was on duty on that day. The Investigating Officer seems to be negligent in seizing the records for proving the duty of PW2.” Thus, it is crystal clear that the allegation raised by PW2, when he lodged the FI statement, is absolutely incorrect and false one. In the absence of any evidence to show that, the alleged incident was taken place while PW2 was on official duty, the essential ingredient of S.333 of IPC is not attracted. 6. The learned counsel for the accused pointed out another defect of the prosecution case and he invited my attention to para 9 of the impugned judgment. The specific case of the prosecution is that M.O.(1) torch, which was supplied by Crl. Appeal No.1510 of 2005 5 the railway to PW2 for the effective discharge of his duty was snatched away by the accused and by using the said torch, assault was made on PW2 and he sustained injuries. But during the trial, though M.O.(1) torch was produced it was not got identified through PW2, the injured. There is no evidence to show that the M.O.(1) is the torch, which was supplied by the railway. So the prosecution failed to establish the case against the accused and also failed in proving the actual incident. 7. It is also relevant to note that, even according to the prosecution the incident was taken place during the midnight and that too at the platform of the Payyannur Railway Station, and the identity of the accused, who were 6 in numbers, had tried to establish only through PW2, who allegedly maintain personal enemity against the accused for committing the offence. But even though it was a public place, the police who conducted the investigation did not questioned any independent witness and no such independent evidence was adduced and in Crl. Appeal No.1510 of 2005 6 order to canvas the conviction they mainly relied upon the evidence of PW2, who is admittedly not in good terms with the accused. Therefore, in the absence of any independent evidence and in view of the circumstances pointed out earlier, I am of the view that the prosecution has miserably failed to establish the allegation against the accused beyond reasonable doubt. Consequently, the appellants are entitled to get benefit of doubt. Hence, the accused are entitled to get an acquittal. In the result, this criminal appeal is allowed setting aside the judgment dated 10.8.2005 of the Addl. Sessions Court (Ad hoc-1), Thalassery, in S.C.No.200/00, acquitting all the accused, of all the charges levelled against them and they were set at liberty. Criminal appeal is allowed accordingly. V.K.MOHANAN, Judge. ami/