IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH MARCH, 2009 / 28TH PHALGUNA, 1930 Crl.L.P..No. 777 of 2008 (SC.17/1997 of SESSIONS COURT, MANJERI) .................... PETITIONER/COMPLAINANT: ----------------------------------------- PALAPRA ALAVI, S/O.HAMZA, PANTHALLOOR AMSOM DESOM, ERNAD TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS/ACCUSED AND STATE: ------------------------------------------------------- 1. PUZHAKKAL RASHEED, S/O.MOHAMMED @ KUTTY, AMAKKAD, PANTHALLOOR AMSOM DESOM. 2. PUZHAKKAL HAMEED, S/O.MOHAMMED @ KUTTY, PANTHALLOOR AMSOM DESOM. 3. PUZHAKKAL ABDULLA, S/O.MOHAMMED @ KUTTY, PANTHALLOOR AMSOM DESOM. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.B.RAMAN PILLAI FOR R1 TO 3 SRI.K.P.MUJEEB FOR R1 TO 3 SRI.GEORGE PHILIP FOR R1 TO 3 SRI.R.ANIL FOR R1 TO 3 SRI.RAJU RADHAKRISHNAN FOR R1 TO 3 SRI.ANIL K.MOHAMMED FOR R1 TO 3 SRI.DELVIN JACOB MATHEWS FOR R1 TO 3 R4 BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI, THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.L.P. No.777 of 2008 ---------------------------------------------- Dated this the 19th day of March, 2009. O R D E R The petitioner herein is the complainant in a private complaint preferred before the court of Judicial First Class Magistrate-II, Perinthalmanna based upon which C.C.No.251/96 was instituted in that court for the offences punishable under sections 323, 324, 506(ii) read with S.34 IPC. Subsequently, the learned Magistrate committed the same case to the court of Sessions Judge, Manjeri since the said case is connected with S.C.No.136/95 pending in the trial court, in which the accused Nos.1 to 3 faced trial including the complainant. By the judgment dated 3.10.2002 in S.C.No.17/1997 (C.C.No.251/96 of JFCM-II, Perinthalmanna), the trial court acquitted the accused under section 235(1) of the Cr.P.C. As aggrieved by the said order of acquittal, the petitioner/complainant intends to file an appeal for which he seeks leave of this court. 2. The allegation in the complaint against the accused is that at about 7.45 a.m. on 1.4.1994, the accused in furtherance of their common intention, caused hurt to PW1 by beating with hands, wooden reaper and criminally intimidated him in the road in front of the tea shop of Karimpuzha Abdullah. According to the complainant, Crl.L.P.777/08 -:2:- though PW1 gave information to the S.I. of Police, Pandikkad and the Police had registered crime No.31/94 against accused Nos.1 to 3, the same was referred as a mistake of fact, as found on investigation, and thus notice was given to PW1 regarding that and thus, the petitioner/complainant approached the learned Magistrate by filing the above private complaint. 3. On appearance of the accused, a formal charge was framed against them and the same was read over and explained to the accused and they pleaded not guilty. Consequently, Pws. 1 to 4 were examined from the side of the complainant and marked Exts.P1 to P4. From the side of the defence, Exts.D1 was marked. When they were questioned under section 313 Cr.P.C. they denied the incriminating circumstances, brought out during the evidence of the complainant. No evidence was adduced from the side of the defence. On the basis of the rival pleadings and the materials and evidence on record, the trial court formulated 5 points for its consideration and, finally, found that the complainant failed to prove his case against the accused beyond reasonable doubt, and consequently, the accused were found not guilty for the charges levelled against them and accordingly they were Crl.L.P.777/08 -:3:- acquitted under section 235(1) Cr.P.C. It is the above finding and order of acquittal sought to be challenged by preferring the appeal for which the petitioner/complainant seeks leave of this court. 4. I have heard Sri P.Vijaya Bhanu, the learned counsel appearing for the appellant and Sri B.Raman Pillai, the counsel appearing for respondents 1 to 3/accused Nos.1 to 3. 5. Going by the materials and evidence on record, it is beyond dispute that the allegation in this case and also in Sessions Case No.136/95, which was pending in the same trial court, are with respect to the same incident, but different versions. After an elaborate consideration, evaluation and appreciation of the evidence of the witnesses of the complainant that PW3 in pursuance of the intimation received from the District Hospital Manjeri, reached thereon on 1.4.94 and recorded the statement of PW1, based upon which, crime No.31/1994 was registered in that police station for the offence punishable under sections 323 and 324 read with Section 34 of IPC. Ext.P3 is the FIR in that case. Ext.P3 contained the information furnished by PW1. PW3 has also conducted spot inspection with respect to the place of Crl.L.P.777/08 -:4:- occurrence on 2.4.94 and prepared scene mahazar. Ext.P4 is the copy of the mahazar in crime No.30/94 which is a crime registered against PW1 and other accused for causing death of Muhammed Kutty., the father of Accused No.s 1 to 3 in crime No.31/94. After investigation in crime No.31/94, the same was referred as mistake of fact and notice was issued to PW1 by the then C.I of Police. It was in the above circumstances, the petitioner/complainant approached the court below by preferring the private complaint. 6. The defence set up by the accused is to the effect that the present complaint is preferred as a counterblast for the case registered against PW 1/the petitioner and others for causing the death of father of the accused in this case. The trial court found that the defence did not dispute the fact that PW1, the complainant has sustained injury at the relevant time and place. But according to their version, none of them was present at the time of the incident while PW1 and his companions assaulted their father at the relevant time and place and while going away from the place of occurrence, PW1 fell on the road and as a result of which, had suffered injuries. The trial court had specifically found that though PW3 Crl.L.P.777/08 -:5:- stated that the first information given by PW1 was incorporated in Ext.P3, there was no mention in the statement of PW1 that the deceased or accused 1 and 2 had assaulted him with hands. Thus, the trial court concluded that the said version of PW1 is an addition or improvement brought during the evidence. The trial court has also observed the admission of PW1 that he along with three others faced the trial in the very same court for the offences punishable under Section 341,323 and 302 read with Section 34 of I.P.C. for allegedly causing the death of one Muhammed Kutty, the father of accused Nos.1 to 3 in the present case. Regarding the time and place of occurrence, there is no dispute and time and place of occurrence are one and the same in both the cases. The trial court had also found that there is no reliable and acceptable evidence to show the presence of accused Nos.1 to 3 at the relevant time. PW4 was not questioned by the investigating officer and there is no material to show that he was purposely excluded from questioning. 7. The trial court further found that the complainant has not made an attempt to show that the investigation conducted by the C.I.of Police which led to the filing of the refer report was Crl.L.P.777/08 -:6:- not proper. Consequently, the investigation was found untrustworthy. Therefore, the trial court concluded that PW4 had not actually witnessed the incident. Therefore, the trial court was not inclined to accept the evidence of PW4. The only evidence that was available is that of PW1 regarding the injury sustained by himself. The trial court, which got an opportunity and privilege to observe the demeanour of PW1, had held that it is not safe to act upon the evidence of PW1. PW2/the Doctor, who examined PW1, was of the opinion that the injury sustained by PW1 could be caused by falling on hard surface. He was also of opinion that the complaint of pain could be a pretension. On the above factual premises, the trial court had held that the mere fact that PW1 was shown to have had haematoma on his left wrist was not by itself, sufficient to ensure the truth of his case regarding the cause of injury. It was, on the basis of the above evaluation and appreciation of evidence of PW1 and regarding the evidence of PW4, the trial court found that the complainant had failed to establish a case beyond reasonable doubt and accordingly, acquitted the accused. 8. The learned counsel invited my attention to the Crl.L.P.777/08 -:7:- observation contained in paragraph 17 of the impugned judgment that “so far as the evidence of PW1 is concerned, I stated above he, along with the others is accused of causing the death of the father of the accused herein. Therefore, it is not safe to act upon the evidence of PW1” and submitted that the accused were acquitted only on the ground that PW1 and others are accused in the other case and therefore his evidence was disbelieved by the court below. I am unable to understand the above submission, since as discussed above, after the evaluation and appreciation of evidence of Pws.1 and 4, according to the court, there are reasons to disbelieve their version. As mentioned above, the place of occurrence and time of occurrence, in both the Sessions Cases namely, S.C.No.136 of 1995 where the complainant and his witnesses are accused and S.C.No.17 of 1997, where the complainant is PW1, are one and the same and as such, it is only the case and counter case. In the affidavit filed by the petitioner in support of the delay condonation petition as Crl.M.A.No.8691 of 2004, the petitioner has stated that he was convicted in S.C.No.136 of 1995 for the offence punishable under Section 304 Part II of I.P.C. which was confirmed by this Court in appeal. In the light of the above facts Crl.L.P.777/08 -:8:- and circumstances and the discussion, I cannot say that the trial court has overlooked any evidence or material which is otherwise favourable to the petitioner/complainant. The above discussion itself would further show that the trial court, which got the privilege and opportunity to observe the demeanour of witnesses and after giving cogent and satisfactory reasoning, disbelieved the version of Pws.1 and 4. Therefore, it cannot be said that the trial court has committed any wrong or illegality. Hence even if an appeal is entertained, there is no scope for interference of the order of acquittal passed by the trial court. 9. In the decision in Ghurey Lal v. State of U.P. [2008(4) KLT SN 17 (C.No.17), the Apex Court has laid down certain circumstances under which the appellate court can interfere with the order of acquittal. In the said decision, the Apex Court has further held that the Appellate Court can interfere with an order of acquittal only for very substantial and compelling reasons. It was also held that presumption of innocence of accused is reinforced by order of acquittal and therefore, unless there are substantial and compelling reasons, the appellate court, while exercising the appellate jurisdiction, shall not interfere with the order of acquittal Reiterating the Crl.L.P.777/08 -:9:- same position, the Apex Court has held in Batcu Venkateshwarlu and Ors. v. Public Prosecutor, High Court of A.P. [2009(1) Supreme 67] that in the case of acquittal, there is a double presumption in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong and then only, the appellate court can, while exercising the appellate jurisdiction, interfere with the order of acquittal passed by the trial court. In the light of the factual position involved in this case and supported by the evidence and materials on record, I find no reason to hold that the finding of the trial court is wrong. In the result, there is no merit in the petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. kvm/MBS/- Crl.L.P.777/08 -:10:-