IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 CRL.A.No. 1133 of 2001 -------------------------------------- CC.86/1997 of JFCM, TALIPARAMBA .................... APPELLANT/COMPLAINANT: ANTONY PALAKUNNEL, S/O JOSEPH, RETIRED TEACHER, PANNIYOOR AMSOM DESOM, POOVAM, TALIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD SRI.M.K.DAMODARAN, SENIOR ADVOCATE RESPONDENTS/ACCUSED 1 TO 3 AND 5 & 6: 1. T.A.LUKOSE, C.I. OF POLICE, CRIME BRANCH, KOZHIKODE. 2. SIDDIQUE, POLICE CONSTABLE, RESIDING AT PUSHPAGIRI, KUTTIYERI AMSOM, TALIPARAMBA TALUK, KANNUR DIST. 3. K.RAGHAVAN, P.C.NO.2600, POLICE CONSTABLE, KANNUR POLICE STATION, KANNUR, RESIDING AT VAYAKKARA, KANNUR DISTRICT. 4. ROMIYO S.VETTOM, S/O SEBASTIAN VETTOM, RESIDING AT PUSHPAGIRI, KUTTIYERI AMSOM, TALIPARAMBA, KANNUR DIST. 5. BASANIYO S.VETTOM, DO. DO. BY ADV. SRI.GRASHIOUS KURIAKOSE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2010 ALONG WITH CRA NO. 1162 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ------------------------------ Crl.A.Nos.1133 & 1162 of 2001 ------------------------------ COMMON JUDGMENT Appellant in Crl.A.No.1133/2001 is the husband and appellant in Crl.A.No.1162/2001 is the wife. Crl.A.No.1133/2001 is filed challenging the order of acquittal passed by Judicial First Class Magistrate, Taliparamba in C.C.No.86/1997. His case in the complaint was that on 27.6.1993 at about 11 p.m., six accused came to the house in a police jeep and accused 1 to 3 trespassed into the veranda and first accused, the Circle Inspector of Police, directed the appellant to accompany him to the police station and when he refused, accused 1 to 3 threatened that he will be forcibly taken and the accused wrongfully took him in the jeep to the police station and wrongfully confined there in the lock up on that night and released him only on the next day at 1 p.m. It is contended that appellant was kept under wrongful confinement from the night CRA 1133&1162/01 2 on 27.6.1993 till 1 p.m. on 28.6.1993 and it was done at the inducement of the fourth accused and the accused, thereby, committed offences under Sections 452, 365, 352, 355, 357, 342 and 506(ii) of Indian Penal Code. 2. Contending that after the appellant in Crl.A.No.1133/2001 was taken to the police station illegally by the accused, accused 4 to 6, along with the second accused, came to the house of the appellant and made an illegal search and took away certain documents and account books relating to the transactions with Thomaskutty and the accused, thereby, committed offences under Sections 448 and 380 read with Section 34 of Indian Penal Code, filed a complaint. 3. Learned Magistrate took cognizance of the offences in both the cases separately. While the case was pending, appellants settled the disputes with the fourth accused in Crl.A.1133/2001, the first accused in Crl.A.No.1162/2001 and got the CRA 1133&1162/01 3 proceedings against them quashed by approaching this Court under Section 482 of Code of Criminal Procedure. The other accused in both the cases pleaded not guilty. The complaint filed by the appellant/husband in Crl.A.No.1133/2001 was tried as C.C.No.86/1997 and the complaint filed by his wife, the appellant in Crl.A.No.1162/2001, was tried as C.C.No.639/2003. 4. Appellant in Crl.A.No.1133/2001 got himself examined as PW1 and his wife as PW2. PWs 3 to 5 were examined to prove that appellant was illegally taken into custody and kept at the police station. The Advocate, with whom appellant had consulted, was examined as PW6. Exhibits P1 to P15 were also marked. On the side of the accused DWs 1 and 2 were examined and Exhibits D1 to D8 were marked. 5. Learned Magistrate elaborately considered the evidence. Learned Magistrate found that though appellant contended that he had made an oral complaint on releasing him from the police station CRA 1133&1162/01 4 on 28.6.1993, there is no evidence to prove the same and as stated in Exhibit P10 counter affidavit filed by the Deputy superintendent of Police before this Court, the complaint was received by him only on 27.7.1993. Learned Magistrate also found that appellant did not mention anything about the oral complaint in Exhibit P1 complaint submitted before Deputy Superintendent of Police, Taliparamba and therefore, there is considerable delay in filing the complaint, which was not properly explained. Learned Magistrate, on appreciation of evidence, held that evidence of PW3 that he was an employee working nearby and he had seen the appellant being taken to the police station cannot be believed. So also, in the light of the case set up by the appellant in Exhibit P1, PWs 5 and 6, even if, had gone to the police station, could not have seen the appellant and on appreciation of the entire evidence, disbelieved the case of the appellant that he was illegally taken to the police station CRA 1133&1162/01 5 and was kept under illegal confinement till the next day. Learned Magistrate, therefore, acquitted the accused in C.C.No.86/1997. 6. In C.C.No.639/1993, apart from the appellant in Crl.A.No.1162/2001, who was examined as PW1, her husband was examined as PW4. PWs 2 and 3, the witnesses, were also examined. Learned Magistrate, on appreciation of evidence, found that though theft of motor cycle was alleged, the evidence shows that it is in the possession of Siby, the son of the appellants and it is being used by Siby and he has not applied for duplicate registration certificate and therefore, the allegation that original registration certificate was taken away by the police cannot be true. So also, on appreciation of evidence, learned Magistrate found that evidence of PWs 2 and 3 cannot be believed and PW4, the husband, is not at all an eye witness and the evidence of PW1 does not inspire confidence. Therefore, the accused in C.C.No.639/1993 were also CRA 1133&1162/01 6 acquitted. Crl.A.No.1162/2001 is filed challenging the order of acquittal in C.C.No.639/1003. 7. Though the orders of acquittal are separate, both the orders were passed on the same day. As the points to be decided are intrinsically connected, both the appeals were heard together. 8. Learned counsel appearing for the appellants and respondents/accused were heard. 9. Argument of the learned counsel appearing for the appellants is that learned Magistrate did not properly appreciate the evidence and the appreciation of evidence was perverse. It was pointed out that evidence of PW1 in C.C.No.86/1997 was fully corroborated by the evidence of PW2 as to what transpired at the house and by the evidence of PW3 as to the fact that appellant was illegally taken from the house in a jeep to the police station and evidence of PWs 4 and 5, who had seen the appellant in illegal custody in the police station and therefore, learned Magistrate should CRA 1133&1162/01 7 not have acquitted the accused. It was argued that though learned Magistrate found that PW3 was not an employee, the fact that PW3 was working nearby and witnessed the incident is clear from his evidence and in such circumstances, rejection of the evidence of PW3 is illegal. Learned counsel also argued that PWs 4 and 5 had given cogent reasons for their presence near and in the police station on that day and there is no valid reason to disbelieve their evidence that they had seen the appellant inside the police station and in such circumstances, orders of acquittal are illegal and are to be quashed. 10. Learned counsel appearing for the respondents submitted that appreciation of evidence by the learned Magistrate was proper and there is no reason to interfere with the appreciation of evidence or the orders of acquittal. 11. The case of the appellants is that while the appellant/husband and wife were in the house, CRA 1133&1162/01 8 at about 11 p.m., in the police jeep, the six accused came to their house and accused 1 to 3, the Circle Inspector of Police and two Police Constables, trespassed into the veranda and knocked at the door and called the appellant/husband and when the wife opened the door, the husband also reached there and they took the appellant/husband to the veranda and thereafter asked him to accompany them to the police station and when appellant showed reluctance, they threatened that he will be arrested and taken to the police station and at that time, accused 4 to 6 were also there in the police jeep and he was taken to the police station and accused 1 to 3 made him stay in the lock up and accused 4 to 6 left the police station and after one hour they returned with some papers and even though there was no case against the appellant, he was made to stay in the lock up room on that night and only on the next day, at 1 p.m., he was released with a direction to leave the CRA 1133&1162/01 9 station immediately. Though the incident was on 27.6.1993 and he was released on 28.6.1993, Exhibit P1, the first written complaint is dated 7.7.1993. Though appellant/husband contended that he had submitted an oral complaint before Deputy Superintendent of Police on 28.6.1993, learned Magistrate did not believe the case. Learned counsel argued that evidence of PW1 establishes the oral complaint. But, as rightly found by the learned Magistrate, if there was such an oral complaint, it would have been definitely mentioned in Exhibit P1 complaint. Absence of such an allegation in Exhibit P1 is definitely a valid reason to disbelieve the said case. Though Exhibit P1 is dated 7.7.1993, there is no evidence to prove when exactly it was sent by post by the appellant. Learned Magistrate found that though Exhibit P1 complaint is dated 7.7.1993, it was received by Deputy superintendent of Police, as admitted by him in the affidavit filed by him before this Court, CRA 1133&1162/01 10 only on 26.7.1993. Even thereafter, private complaint dated 10.4.1995 was filed before the court only on 17.4.1995. In such circumstances, learned Magistrate was justified in holding that the inordinate delay in filing the complaint was not explained and it casts suspicion with regard to the genuineness of the case. 12. PW3 was examined to corroborate the evidence of PWs 1 and 2, the husband and wife, that the husband was taken from the house at 11 p.m. by the police party. Evidence of PW3 was discussed at length and for valid reasons, learned Magistrate found that evidence of PW3 that he had witnessed the appellant/husband being taken in the police jeep cannot be believed. On going through the evidence, I find no reason to differ. 13. PWs 4 and 5, the political leaders of the locality, were examined to prove that they had seen the appellant kept illegally in the police station on 28.6.1993. Learned Magistrate had given CRA 1133&1162/01 11 convincing and cogent reasons for not relying on their evidence. In Exhibit P1 complaint filed by the appellant/husband, he had no case that he was kept outside the lock up room at any point of time. On the other hand, his specific case is that he was there in the lock up room and was let out only at 1 p.m. on 28.6.1993. True, at the time of filing Exhibit P1 complaint, he developed the case and stated that on the morning of 28.6.1993, he was made to sit on a bench outside the lock up room. Evidently, it was developed to create witnesses who could give evidence to the effect that they had seen the appellant in the police station. Learned Magistrate rightly appreciated the evidence and found that evidence of PWs 4 and 5 that they had seen the appellant in the police station cannot be believed. In the light of the evidence of PWs 3 to 5, what remains is the evidence of PWs 1 and 2, the husband and wife. CRA 1133&1162/01 12 14. Learned Magistrate evaluated their evidence and found that there was no acceptable and conclusive evidence to prove that either the accused committed trespass into the house at the night on 27.6.1993 or illegally took the husband into custody and taken to the police station and kept there on that night. I find no reason to interfere with that finding, as the conclusions arrived at by the learned Magistrate is the only possible and reasonable conclusions that could be taken on a proper appreciation of the evidence. Therefore, I find no reason to interfere with the order of acquittal in C.C.No.86/1997. 15. Similar is the case with the order of acquittal in C.C.No.639/1993. Though the husband of the appellant in Crl.A.No.1162/2001 was examined as PW4, the incident alleged in C.C.No.639/1993 was that after the husband was allegedly forcibly taken from the house and therefore his evidence is not at all helpful, as he has no personal knowledge on CRA 1133&1162/01 13 these facts. Evidence of PWs 2 and 3 were also considered by the Magistrate elaborately and on a proper appreciation of the evidence, it was held that their evidence is also not reliable. On going through the evidence, I find no reason to interfere with the conclusions of the learned Magistrate, as the conclusions arrived at are the only possible and reasonable conclusions that could be taken on a proper appreciation of the evidence. Therefore, I find no reason to interfere with the order of acquittal in that case also. Both the appeals are, therefore, dismissed. 14th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRA 1133&1162/01 14 M.Sasidharan Nambiar, J. ------------------------------- Crl.R.P.Nos.1133 & 1162 of 2001 ------------------------------- COMMON ORDER 14th June, 2010