IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 CRL.A.No. 1229 of 2001() ------------------------ SC.298/2001 of SESSIONS COURT, THODUPUZHA .................... APPELLANTS/ ACCUSED: ------------------- 1. GEROGE, S/O.JOSEPH, VANIYAPPURACKAL VEEDU, KOCHERA KARA, ANAKKARA VILLAGE. 2. REJI, S/O.GEORGE, VANIYAPPURACKAL VEEDU, KOCHERA KARA, ANAKKARA VILLAGE. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.BONY PHILIP RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, KATTAPPANA, IDUKKI DISTRICT. THOUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR,JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- Crl.Appeal No.1229 OF 2001 ---------------------------------------- Dated this the 5th day of November, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. This appeal arises out of S.C.No.298/2001, which in turn, arises from Crime No.34/1997 of Vandanmedu Police Station. It is a counter case to the main case, which was registered as Crime No.31/1997 of the very same Police Station. This case was tried along with the main case and the accused herein, who are PW10 and PW1 respectively in the main case, were convicted for the offences under Sections 323 and 324 read with Section 34 of the I.P.C. They were sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.2000/- and in default to undergo rigorous imprisonment for three months under Section 324 of the I.P.C. They were also sentenced to undergo rigorous imprisonment for one year for the offence under Section 323 of the I.P.C. The sentences were to run concurrently. Aggrieved by the conviction and sentence imposed on them, the accused have preferred this appeal. Crl.A.No.1229/2001 2 2. The case of the prosecution in brief is as follows: The accused saw PW1 causing hurt to Mr.Roy, the son of the 1st accused and brother of the 2nd accused. Infuriated by the same, the 1st accused hit PW1 on his head using a stone and voluntarily caused hurt to him. The second accused caught hold of the genitals of PW1 and pulled the same, causing hurt to him. They committed these acts in furtherance of their common intention to cause hurt to PW1. Since this was a counter case, the same was committed by the learned Magistrate to the Sessions Court for trial along with the main case. The accused pleaded not guilty to the charges framed against them. To prove its case, the prosecution examined P.Ws.1 to 9 and marked Exts.P1 to P12. From the side of the defence, Exts.D1 to D4, which were the contradictions in the statement of the witnesses with reference to their previous statements under Section 161 of the Cr.P.C., were marked. The trial court after hearing both sides, found the accused guilty of the offences punishable under Sections 323 and 324 read with Section 34 of the I.P.C. Hence this appeal. Crl.A.No.1229/2001 3 3. The learned counsel for the appellants submitted that the case of the prosecution is supported only by P.Ws. 1 and 3. The depositions of those witnesses are full of material contradictions and it is quite unsafe to convict the accused, based on their self-serving and interested versions. PW1 was facing charges of murder of Roy, the son of the 1st accused. So, he has given evidence to suit his defence in that case. Having regard to the evidence on record, in any view of the matter, the accused were entitled to get the benefit of doubt, it is submitted. 4. We heard the learned Public Prosecutor, who supported the conviction and prayed for dismissal of the appeal. Now, we will refer to the evidence of P.Ws.1 and 3, based on which the conviction was entered by the learned Sessions Judge. PW1 stated that he was familiar with the accused. He was injured in the incident and underwent treatment. Regarding the incident, he gave Ext.P1 FI Statement before the Nedumkandam Police Station. He identified his signature in Ext.P1. The incident took place in April, 1997 at Kocharappalam at about 7 p.m. He was residing near Kocharappalam and was doing business, for about Crl.A.No.1229/2001 4 one year prior to the incident. The 1st accused George owned Rs.2000/- to him. The witness asked him several times to pay that amount. Every time, he requested for time for payment. On the previous day of the incident, the witness told the 1st accused that he required the money urgently. The 1st accused said that he will pay the amount within 24 hours. Next day by 7 p.m., the 1st accused knocked at the door of his shop. The witness came out. Immediately, George (1st accused) took a stone from the ground and hit him on his head. His head sustained injury and started bleeding. While so, Reji and deceased Roy came running to him. Reji kicked him at the bottom of his stomach. He fell down. Thereupon, Roy caught hold of his genitals and crushed the same. While so, the 1st accused fisted on his chest and kicked him. Roy took out a knife. The witness using force, took the knife from Roy. Since there was no way to escape, he waved the knife. There was a fight for some time. He dropped the knife and ran away. In the cross-examination, PW1 stated as follows: The quarrel between PW1 and the accused took place on the Good Friday of 1997. It happened at 5.30 p.m. The said incident was witnessed by several persons. PW1 did not know Crl.A.No.1229/2001 5 whether the 1st accused has filed a complaint before the Police Station about the incident. There was no talk between him and the accused regarding the said complaint. There was no quarrel or wordy duel between them on Good Friday. After recording the F.I. Statement, the police had not questioned him. He has stated that he has not given any additional statement under Section 161 of the Cr.P.C. The statement recorded by the police under that Section was marked as Ext.D1. As per Ext.D1, it was Reji, the 2nd respondent herein, who caught hold of the genitals of PW1. But, in the F.I.Statement and before the court, he asserted that it was Roy, the deceased, who caught hold of his genitals. The witness further stated that the incident happened at a distance of 100 ft away from his shop. From the place of incident the distance to Kunjayan's shop is 30 ft. The 1st accused walked to the scene of occurrence first. PW1, after purchasing a cigarette, followed the 1st accused. He purchased the cigarette from the shop of Kochayan. The incident happened three minutes after he was called out from his shop. When the witness came out of his shop, the 1st accused did not talk anything to him. On opening the door, the witness saw the 1st Crl.A.No.1229/2001 6 accused. So, he thought, it was the 1st accused who knocked at his door. At that time, no one else was there between his shop and the scene of occurrence. The scene of occurrence is by the side of the road. Grass was growing there. There were stones by the side of the road. All of them fell down. The witness fell down on receiving a kick. Lying there, they grappled for about two minutes. It was for seizing the knife in the hands of Roy. At the relevant time, there were others in the shop. He does not know who were present. Roy took the knife from his waist. He does not remember the size or shape of the knife. He does not remember whether he has told the police about Roy taking the knife. If Roy took the knife, he would have told the police about it. To that specific suggestion, there was no answer from PW1. He does not remember whether he has told the police that he, using force, seized the knife from Roy. To a suggestion that if he had actually seized it, he would have told the police, there was no answer from the witness. He has not stated before the police that since there was no way to escape, he waved the knife and escaped from there. He told the doctor in-charge of Puttadi Hospital that he sustained the injuries on being beaten and also Crl.A.No.1229/2001 7 by pulling of the penis after he was called out from his house. He has not told the doctor about the kicking at the bottom of his stomach or hitting him with the stone. He did not sustain any stab injury. He was beaten and fisted. He was hit on his head using a stone. He does not know whether he was beaten. He only remembers that he was hit. He has told the doctor in- charge of Nedumkandam hospital, how the incident happened. He did not tell the doctor that he sustained injury on being hit on the head and stabbed by a knife by 2-3 persons. There was no case against him alleging that he attacked Murali. There was a case against him for having attacked Joy Anakkallel, but that was compromised. The witnesses worked in the arrack shop of Manarkad Pappan. He was not a member of the goonda gang of that person. He is not speaking falsehood that the accused caused injuries. It was suggested that while the witness was stabbing Roy, the accused intervened and the witness stabbed them. When they tried to catch hold of the knife, he fell down and sustained injury. Witness denied that suggestion. Crl.A.No.1229/2001 8 5. The next witness who supported the prosecution is PW3. He has stated as follows: He knew the accused in this case. He knew PW1 also. He has seen the incident. He does not remember the date. It was about four years back. The incident took place near Kocharappalam. On that day at 6.30 p.m., the witness came near Kocharappalam. Then he saw the 1st accused hitting PW1 using a stone. It was on the back of the head of PW1. Reji and Roy also hit PW1. On being hit with the stone, PW1 fell down. The witness saw Reji and Roy sat on PW1 and kicked him. At that time, it was not fully dark. There was a light on the side of the shop. The police have questioned him. It was 3-4 days after the incident. He told the police what he knew. Kochayan @ Thomas had a shop there. It was remaining open. Sunny was there in the shop. On the date of incident, one door of the shop was remaining open. There were 2-3 persons inside the shop. The witness bought some beedies from Sunny. There were 3-4 persons inside the shop. They were sitting on the bag containing the goods. The witness went there alone. He has seen Kulikkal Jose at 6.p.m. near Kochara. He did not see PW1 in the shop of Crl.A.No.1229/2001 9 Sunny. There was light in the 'verandah' of the shop. The business was inside the shop room. He saw Thomachan Thykkudathil and the accused talking in front of the shop. He did not see PW1 stabbing Roy, son of A1. After 10-15 minutes, he came to the shop. He saw the 1st accused hitting PW1 using the stone. He saw it from a distance of 30-35ft. He was standing on the 'verandah' of the shop for fifteen minutes without doing anything. He did not talk to anyone. At that time, no one came to the shop and there was no one in that part of the road. When he was coming to Kochara, he saw the incident. It is not correct to say that he saw the incident when he was coming to Kochara side. He saw PW1 while he was standing on the 'verandah'. PW1 was coming to the scene of occurrence. Then the children of A1 went to the side of PW1. They were walking behind Pappachan. Roy asked PW1 why he was quarrelling with his father. The witness knew Roy for the last four years. After they talked for few minutes A1 came there. The witness did not hear what PW1 talked to the sons of A1. From the place he stood, he could not hear what they were saying. They were exchanging angry words. PW1 and Roy were expressing their anger. There Crl.A.No.1229/2001 10 was light to recognise them. The witness was watching them. He did not see weapon in the hands of anyone. A1 was at a distance of 10-15 ft. There was no one with him. A1 came to the scene. He went down and took a stone. On being hit by the stone PW1 fell down. Roy and Reji sat on Pappachan's body and kicked him. Reji sat on his chest and Roy on his right side. PW1 was helplessly suffering that. A1 did not do anything to PW1, after he fell down. PW1 did not do anything to Roy or Reji. He does not know how Roy died. It was heard that he died of a stab injury in the stomach. He suffered stab injury at the scene of occurrence. He did not see anything else. He did not see anyone going from the scene of occurrence. He did not know whether anyone else had seen the incident. He did not see PW1 being kicked in his stomach or the said person falling down because of the kicking. He had not seen pulling or crushing of the genitals of PW1. He denied having stated to the police as mentioned in Exts.D2, D3 and D4. He asserted that he is not speaking falsehood to help PW1. He denied the suggestion that he did not see the incident. 6. The trial court believed the above versions of PWs 1 Crl.A.No.1229/2001 11 and 3 and found the accused guilty of the offence under Sections 323 and 324 of IPC. But, going by the evidence of the above witnesses, we are of the view that the same does not inspire confidence. PW1 has stated while giving Ext.P1 F.I.Statement that Roy caught hold of his genitals. Later, when questioned by police he gave statement under section 161 of Cr.PC. that Reji was the person who did that. While in the box, he stated that he has never given such a statement before the police and asserted that it was Roy who caught hold of genitals. But, PW9, the investigating officer, has stated that the witness was questioned again under Section 161 of the Cr.P.C. and he has given a statement that it was Reji who caught hold of his genitals. So, regarding the very same incident, the witness is giving different versions. We find no reason to disbelieve the version of PW9, the investigating officer. But, the trial court disbelieved the version of the investigating officer and held that it was Roy who caught hold of the genitals. PW1, would further swear that Roy, who was holding his genitals, pulling and crushing it, took a knife from his waist with the intention to stab PW1. The said version is inherently improbable. PW1 has not so stated before Crl.A.No.1229/2001 12 the police. The person who is able to catch the genitals of his rival need not take a knife and stab him because his victim will be helpless in that state. So, we are not inclined to believe PW1. His deposition is a self serving statement. PW1 was only trying to wriggle out of the main case, in which he was charged of murdering Roy. PW3 was supporting his friend PW1. We also find it difficult to believe the version given by PW3 regarding the incident. In the result, we hold that the prosecution has failed to prove the case against the accused beyond reasonable doubt. Therefore, the accused are entitled to get the benefit of doubt. Accordingly, the appeal is allowed. The conviction and sentence imposed on the appellants are set aside. Their bail bonds are cancelled and they are set at liberty. The fine amount, if any, paid by them shall be returned to them. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps