IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 CRL.A.No. 1841 of 2004 --------------------------------- SC.39/1999 OF ADDL. SESSIONS COURT (ADHOC), THODUPUZHA CR. NO. 157/97 OF IDUKKI POLICE STATION. ......................................... APPELLANT: COMPLAINANT ------------------------------------------ STATE OF KERALA, REP: BY CIRCLE INSPECTOR OF POLICE, IDUKKI THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW RESPONDENTS: ACCUSED -------------------------------------- 1. THANKACHAN, S/O.AUGUSTHY, CHALAPPATTU HOUSE, VAZHATHOPPU KARA, IDUKKI. 2. JOSE, CHALAPPATTU HOUSE, IDUKKI. 3. VINOY, CHALAPPATTU HOUSE, IDUKKI. 4. THOMAS, CHALAPPATTU HOUSE, IDUKKI. 5. AUGUSTHY, S/O.VARGHESE, CHALAPPATTU¸ HOUSE, IDUKKI. BY ADV. SRI.GEO PAUL R1 ADV. SRI.SANU MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2008 ALONG WITH CRRP NO. 3021 OF 2006,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------------------- Crl.A.No.1841 OF 2004 and Crl.R.P.No.3021 of 2006 ------------------------------------------- Dated 3rd March, 2008 JUDGMENT Koshy,J . Accused five in number in S.C.No.39/99 faced trial for the murder of one Jose on 4.10.1997. According to the prosecution, on 4.10.1997 at 5.00 p.m. at the road margin of Idukki-Maniyarankudi road and at the nearby property, accused No.1 stabbed PW2 with knife and caused injury to him and accused No.2 stabbed the deceased with knife. Accused No.1 also stabbed CW3 and caused injury to him, accused No.5 beat PW1 with a stick, accused Nos.3 and 4 kicked PWs 1 and 2 with legs and caused hurt to him and consequent on the severe stab injuries sustained the deceased died on his way to the hospital on the same day. Accused were charge sheeted for murdering the deceased and causing hurt to the other witnesses because of the previous enmity, for offences punishable under sections 302, 324 and 323 read with section 34 of the Indian Penal Code. Accused were acquitted. This appeal is filed by the State questioning the acquittal of the accused. Trial court found that prosecution witnesses were not placing the correct facts before the court. Genesis of the incident was not proved. There was a counter case (S.C.No.40/1999) alleging that accused Nos.1 to 3 were criminally Crl.A.1841/2004 & Crl.R.P.3021/2006 2 assaulted and inflicted with grievous injuries by PWs 1 to 3 and 6 and others. That case was also tried separately, but, disposed of simultaneously and in that case accused were acquitted. The revision petition is filed by the accused in S.C.No.39/99 (Crl.A.No.1841 iof 2004) against acquittal of PWs 1 to 3 (accused in S.C.No.40/99). Trial court in S.C.No.39/99 found that since the main alleged eye witnesses were charge sheeted in the other case, they were not only relatives and friends of the deceased, but, also interested witnesses and for them conviction of the accused in this case was necessary, for their acquittal in the counter case. Their evidence cannot be rejected because they are interested witnesses, but, their evidence should be x-rayed carefully. A reading of their evidence shows that it was full of contradictions notwithstanding the fact that they are injured witnesses. Secondly it was found that according to the 161 statements of prosecution witnesses, no injuries were caused to the accused during the incident. But, before the court they stated that after the murder of the deceased in this case local people assembled and assaulted the accused. But, they had no such case before the police and such a case was developed only at trial stage and they cannot be believed. The trial court also found that the Investigating Officer who enquired both cases did not register any case against the members of the public or anybody, but, only against Crl.A.1841/2004 & Crl.R.P.3021/2006 3 the witnesses. The very same investigating agency came to the opinion that these witnesses have inflicted injuries on the accused resulting in registration of the counter case. Even though it was found that the deceased died due to the homicidal injuries inflicted, it was also noticed that A1, A2 and A5 were also seriously injured in the incident. PW21 doctor on 5.10.97 at 11.40 a.m. i.e., within 18 hours of the incident examined accused Nos.1, 2 and 5 and issued Exts.P16 to 18 wound certificates. He found on the body of accused No.5 (1) Contusion, tenderness and ecchymosis over right shoulder. (2) Tenderness over right hypochondrial region. (3) Upper central incisor teeth of accused No.5 was found shakey and bleeding was present from gums. He issued Ext.P16 certificate in this respect. The alleged cause of injury was assault with stone. On the same day he examined accused No.1 and issued Ext.P17 certificate. Accused No.1 had (1) Tenderness, contusion and bony deformity over right forearm distal one third. (2) Tenderness, contusion ecchymosis and bony deformity over lower one third of right leg. (3) Lacerated injury over the right leg upper two third 2 x 1 x .5cms. (4) Lacerated injury over scalp occipital region 7.5 x 1 x .5 cms. (5) Tenderness over right shoulder. X-ray examination confirmed a comminuted fracture of right ulna and distal one third and comminuted fracture of right fibula lower one third. The alleged cause of injury was assault with stone. On the Crl.A.1841/2004 & Crl.R.P.3021/2006 4 same day he examined accused No.2 and issued Ext.P18 certificate. He found on his body (1) lacerated injury over right knee 2 x .5 x .5 cms. Entering the joint a fracture of patela felt in clinical examination. X-ray confirmed fracture. (2) Lacerated injury over lower lip 1 x .5 x .5 cms. (3) Lacerated injury over right angle mandible palpation was felt, a fracture of mandible was found on clinical examination and X-ray confirmed it. (4) Abrasions 3 x 2 x 2cms. over right wrist. (5) Tenderness over right forearm middle one third (6) abrasion over left iliac fossa 2 x 1 x 1cms. The alleged cause of injury was assault with stone. He opined that the above injuries could be caused as alleged or if beaten with MO4 cross-arm. If beaten with sticks also according to the doctor these injuries of accused Nos.1,2 and 5 could be caused. Totality of evidence in this case shows that there was a sudden fight between two groups and both sides suffered injuries. Unfortunately one among the prosecution party died. But, the correct facts were not brought out by the witnesses. According to the trial court medical evidence and oral evidence adduced in this case only show that there was a sudden fight between two rival groups and in the fight injuries caused to both sides and there is no conclusive evidence to show that who was the aggressor. On going through the evidence, we are satisfied with the finding that injured witnesses examined were not telling the correct Crl.A.1841/2004 & Crl.R.P.3021/2006 5 facts and they were suppressing materials and distorting the truth. Therefore, based on their evidence finding of guilt cannot be entered into. In an appeal against acquittal, even if another view is plausible, if trial court has taken a possible view, the appellate court cannot reverse the order of acquittal. Here, no other view is possible. Findings of the trial court are not perverse or illegal. The criminal revision petition also has the same fate. There was a sudden fight between the parties and both sides got injuries and genesis of the incident was not proved. Witnesses were not telling the truth and prosecution was not able to prove the charges beyond reasonable doubt. On the facts and circumstances of the case, we are of the opinion that acquittal of the accused in both cases needs no interference. Hence, both appeal and revision petition are dismissed. J.B.KOSHY JUDGE K.HEMA JUDGE tks