IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1255 of 2010() ------------------------------ SC.454/2002 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY CP.130/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVISION PETITIONER/PW NO.1/DEFACTO COMPLAINANT -------------------------------------------------------------------- MITHRAN, S/O. KUMARAN, PERUMBACHAL HOUSE, KANDAMKUNNU AMSOM, AYITHARA NORTH, THALASSERRY TALUK. BY ADV. SRI.S.RAJEEV RESPONDENT(S): ACCUSED 1-11 --------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO, 532 OF 2000 OF KOOTHUPARAMBA POLICE STATION) 2. NHALLI MANOHARAN, S/O. ANANDAN, KANDAMKUNNU AMSOM, AYITHARA DESOM. 3. MEPPADAN PRASAD S/O. GOVINDAN, KALLUVETTAMPRAMBU, SIVAPURAM AMSOM, KANHILERI DESOM. 4. VAYALANGARA VINODAN, S/O. GOVINDAN, KALLUVETTAMPARAMBU, SIVAPURAM AMSOM, KANHILERI DESOM. 5. PULAPPADI VIJEESH @ BIJU, S/O.KUNHIRAMAN, SAJITHA NIVAS, KANDAMKUNNU AMSOM, AYITHARA, MAMBARAM. 6. SREEJIGH, S/O. AANDY, KANDAMKUNNU AMSOM AYITHARA, MAMBARAM. 7. VELLUVA SADANANDAN@ SADAN S/O. VASU, THAYYIL HOUSE, KANDAMKUNNU AMSOM, AYITHARA. 8. PAROLI BIJU, S/O. DAMODARAN, NELLIYATHUKUNNU HOUSE, KANDAMKUNNU AMSOM, AYITHARA DESOM. CRL.R.P. 1255/10 -2- 9. NLLAKANDI RAJESH, S/O. KARUNAN, KANDAMKUNNU AMSOM, AYITHARA, MAMBARAM. R1 BY PUBLIC PROSECUOR SRI VENUGOPAL M.R. R2 TO R9 ADV. M/S. ADV. SRI.K.S.MADHUSOODANAN, T.V.JAYAKUMAR NAMBOODIRI, HUSHAR NIRMAL SARATHY, M.M.VINOD KUMAR , & K.M.RAMYA FOR R2 TO 9 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISISNO ON 1.6.2010, THE COURT ON 22.6.2010, PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1255 of 2010 ---------------------------------------- Dated 22nd day of June, 2010 ORDER The de facto complainant is the revision petitioner, who was examined as PW1 in a Sessions Case, i.e. S.C.No.454/2002 of the court of Addl.Sessions Judge, Adhoc-III, Thalassery. The accused in the above case were acquitted of all the charges including under section 307 of IPC , under section 235(1) Cr.P.C by the learned Sessions Judge by his judgment dated 8.7.2008 in the above case and thus the de facto complainant aggrieved by the above order of acquittal and challenging the same, preferred this Revision Petition. 2. The case of the prosecution is that at about 10 a.m on 4.12.2000, the accused persons, armed with deadly weapons formed themselves into an unlawful assembly and committed rioting and towards the materialisation of the object of such unlawful assembly, have criminally trespassed into the house of PW1/revision petitioner after making preparation to cause hurt to CRL.R.P.No.1255/10 -:2:- PW1/revision petitioner by breaking opened the door of the house and voluntarily caused grievous hurt to PW1/revision petitioner by stabbing him and hitting him with sharp edged weapon and attempted to kill him and also caused hurt to PW2 who attempted to save PW1. The further allegation of the prosecution is that the accused persons have also committed mischief by destroying television, tape recorder, almiirah, chair, mixi, glass of the windows etc. and caused loss to PWs 1 and 2 and thereby accused persons have committed the offences punishable under sections 143, 147, 148, 452, 427, 324 and 307 read with 149 IPC. 3. On the basis of the above allegation, crime No.532/2000 was registered in the Kuthuparamba Police Station against the accused who are 8 in numbers. After investigation, a report was laid before the Judicial First Class Magistrate, Kuthuparamba whereupon C.P.No.130/2001 was instituted and the learned Magistrate by his order dated 10.7.2002 in the above committal proceedings committed the CRL.R.P.No.1255/10 -:3:- case to the Sessions Court based upon which the above Sessions case was instituted. On appearance of the accused, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the above offences and when the said charge read over and explained to the accused, they denied the same and pleaded not guilty, consequently, the trial was proceeded during which the prosecution adduced its evidence which consists of the oral testimony of PWs 1 to 12 and the documentary evidence such as Exts.P1 to P12. From the side of the defence, DWs 1 to 3 were examined and marked Exts.D1 to D5. M.Os 1 to 10 were produced and identified as material objects. After the prosecution evidence, the incriminating evidence and circumstances put to the accused under section 313 of Cr.P.C and they denied the same and they took a stand of total denial of the prosecution case and, according to them, it was a false case foisted against the accused out of political enmity. CRL.R.P.No.1255/10 -:4:- 4. On the basis of the rival pleadings and evidence on record, the trial court formulated 5 points for its consideration and finally the trial court found that the evidence regarding the identity of the persons who caused grievous injuries to PWs 1 and 2 is doubtful and therefore the accused are entitled to the benefit of doubt and an acquittal and accordingly held that the prosecution has failed to prove the identity of the accused persons and and also to prove the prosecution case beyond reasonable doubt and accordingly, by extending the benefit of doubt, in favour of the accused , found them not guilty of the offences charged against them and accordingly they were acquitted under section 235(1) Cr.P.C. It is the above order of acquittal challenged in this revision. Suffice to say, no appeal is filed by the State against the above order of acquittal. 5. I have heard Sri S.Rajeev, the learned counsel appearing for the revision petitioner and Sri K.S.Madhusoodanan, the learned counsel appearing for the CRL.R.P.No.1255/10 -:5:- respondents and also Sri M.R.Venugpal, learned Public Prosecutor appearing for the State. 6. To prove the allegation against the accused, the prosecution mainly depends upon the evidence of PWs.1 ,2 and 5 who are ocular witnesses, according to the prosecution. The learned Sessions Judge, in his impugned judgment, referred the evidence and materials in detail, which I shall refer now: According to PW1, the incident was at about 10 a.m on 4.12.2000 and as there was a hartal on that day, he had not gone for work and according to him, he was cutting grass in the courtyard of his house and while so he heard sound from the southern side of his house and he found about 20 persons coming running towards his house. According to PW1, he had seen the persons carrying weapons like Kathival, Val, Axe, Churika and iron rod etc. He deposed that among 20 persons, he could identify A1 Nalli Manoharan, A2 Pradeepan, Prasad, A8 Rajesh, A5 Sreejith, A4 Vijesh, A7 Biju, A3 Vinodan and A6 Sadanandan. CRL.R.P.No.1255/10 -:6:- He had further deposed that he felt that their intention was to attack him and hence he called his father and mother who were along with him in the courtyard and accordingly, they had gone inside the house and got closed the door and attempted to go to the upstairs. According to PW1, he heard the accused persons breaking the door and window of his house. It is the further case of PW1 that then 8 accused persons kicked at the door and broke it and entered inside the house and also destroyed TV. Mixi, Almirah, chairs, tables, tape recorder etc. and thereafter they came to the upstairs. PW1 also deposed that when the accused came to the upstairs, his parents cried holding PW1 and requested the accused not to do anything against him. PW1 further deposed that then A1 pulled up his father and stabbed on his left hand and accused Vinod and Prasad inflicted cut injury on the right lip of the father of PW1 with sword and then his father fell down. Thereafter all the accused persons cut on his both hands and broke his bone of neck, back and CRL.R.P.No.1255/10 -:7:- both legs and ear. According to PW1 on this attack he had also fallen down. According to PW1, thereafter the accused left the place with the weapons stating that both of them dead. According to PW1, his mother was holding him when the accused attacked him but they pulled out his mother also. It is the further case of PW1 that, on hearing his hue and cry and his parents, one Karakat Manikandan, Parakandy Chandran and Puthalathu Satheeshan, came to his house and took the injured, namely, PWs 1 and 2 to Kuthuparamba hospital from where they were taken to Government Hospital, Thalassery and thereafter they were taken to Medical College Hospital, Kozhikode and admitted therein. Thus, according to PW1, he was treated as an inpatient for 25 days and his father for about 15 days. It was also the case of PW1 that after the discharge from the Medical college hospital, he was treated as an Outpatient for 4 months. According to PW1, the Police came to the Medical College Hospital and recorded his Ext.P1 F.I.Statement. As CRL.R.P.No.1255/10 -:8:- his both hands were under plaster, it was PW2, his father put signature in Ext.P1. PW1 says that he had omitted to state the names of two accused persons namely, Rajeesh and Biju in Ext.P1 and it was happened because he was on medication. It is the specific case of PW1 that he is a BJP worker and the accused are CPM workers and the attack was due to political enmity. It is the further case of PW1 that as a result of the destruction of the household articles, he had sustained pecuniary loss to the tune of Rs.75,000/-. He had also stated that after the incident, there was Hartal for 2, 3 days and the situation was tense due to 2, 3 murder cases and for that reasons, there was a delay in giving FI Statement. M.Os 1 to 10 were identified through PW1. Thus, according to PW1, the intention of the accused was to kill him and his father and, as a result of the attack, he is not able to walk properly and he has disability to his little finger. 7. PW2 has also deposed in tune with what deposed by PW1 and he had also identified the accused and admitted CRL.R.P.No.1255/10 -:9:- that he had put signature in Ext.P1 statement given by PW1. He had also identified M.Os 1 to 10. 8. PW3 is an attestor to Ext.P2 scene mahazar. PW4 is the Village Assistant who prepared Ext.P3 site plan on the basis of the scene mahazar. PW5 is none other than the mother of PW1 and wife of PW2 and she has supported the prosecution case and has deposed in tune with the deposition of PWs 1 and 2 and she has also identified the accused persons. PW6 is the doctor attached to Government Hospital, Thalassery through whom identified the signature of Doctor P.K. Rasheed who issued Exts.P4 and P5 wound certificates of PW1 and PW2 respectively. PW7 is the Head Constable who recorded Ext.P1 F.I. Statement of PW1 from the Medical College Hospital, Kozhikode and according to him, both the hands of PW1 were under bandage and therefore he obtained the signature of PW2 who is the father of PW1. Ext.P6 FIR is registered by PW8 on the basis of Ext.P1 FI Statement recorded by PW7. PW9 is the ASI who CRL.R.P.No.1255/10 -:10:- questioned P.Ws 1 and 2 from the Medical College Hospital, Kozhikode on 15.12.2000. PW 10 is the C.I. of Police, Kuthuparamba who undertook investigation of the case with effect from 25.1.2001 and verified the C.D file and questioned some of the witnesses and he submitted charge sheet against the accused. PW11 is the Lecturer in Orthopaedic, Government Medical College, Kozhikode, according to him, Ext.P7 is the case sheet pertained to PW1 who was admitted on 4.12.2000 at 2.25 p.m and discharged on 29.12.2000. Similarly, he had also proved Ext.P8 case sheet with respect to PW2 who was admitted on 4.12.2000 and discharged on 19.12.2000. PW12 is the C.I. who conducted further investigation of the case on 12.12.2000 and prepared Ext.P2 scene mahazar of spot inspection and he is the person who seized M.Os 1 to 10. He had also questioned certain witnesses. It was PW12 who arrested A3 Vijesh, A6 Sadanandan in Maloor police station in crime No.64/2000 on 16.12.2000 and he had given a report to CRL.R.P.No.1255/10 -:11:- remand those persons also. It was PW12 who lodged Ext.P9 report on 15.12.2000 implicating accused Nos. 7 and 8 and he had produced the thodni articles before the court as per Ext.P10 property list and he had given the original of Ext.P11 forwarding note for sending the samples for chemical examination. Ext.P12 is the chemical examination report proved through PW12. 9. The learned Sessions Judge, after considering the entire materials and evidence on record, entered into a finding that the evidence regarding the identity of the persons who caused grievous injuries to PWs 1 and 2 is doubtful and so the accused are entitled to the benefit of doubt and acquittal. Thus, accordingly, held that the prosecution has failed to prove the identity of the accused persons and also to prove the prosecution case beyond reasonable doubt and thus the accused are given the benefit of doubt and are found not guilty for the offence alleged against them, and consequently, they were acquitted CRL.R.P.No.1255/10 -:12:- under section 235 (1) Cr.P.C. It is the above finding and order of acquittal sought to be challenged and prayed that the order of acquittal may be set aside and allow this Revision Petition. 10. I have heard Sri S.Rajeev, the learned counsel appearing for the Revision petitioner and Adv. Sri K.S.Madhusoodanan, the learned counsel appearing for respondents 2 to 9 and also the learned Public Prosecutor appearing for Ist respondent-State. 11. The learned counsel for the revision petitioner vehemently argued that all the prosecution witnesses including the independent witnesses supported the prosecution case and the evidence of P W1 was corroborated the evidence of PWs 2 and 5. According to the learned counsel, the trial court has committed wrong in rejecting the evidence of PW2 who is also an injured and PW5 who is the wife of PW2 and mother of PW1. According to the learned counsel, Sections 324, 307 and 427 IPC are proved against CRL.R.P.No.1255/10 -:13:- the accused and the trial court is not justified in acquitting the accused for the reason that the case involved is having political colour and there is chance for falsification. The learned counsel invited my attention to the evidence of PWs 1,2 and 5 and the medical witness namely, PW6, PW11 and Exts.P7 and P8. According to the learned counsel, the court below has lost sight in rejecting the evidence of PWs 2 and 3 on ground that they are interested witnesses. After inviting my attention to the facts and circumstances involved in the case, the learned counsel submitted that there is no delay in registering the crime. It is specifically argued that immediately after the incident, there was Hartal for 2-3 days in Thalassery and Kannur Districts and due to that reason, the police could not reach in the hospital to record the statements of the victim. It is also the case of the learned counsel that the trial court committed wrong in accepting the incredible witnesses like DWs 2 and 3 and also committed wrong in drawing adverse inference against the prosecution for not CRL.R.P.No.1255/10 -:14:- producing the G.D. 12. On the other hand, the Sri K.S.Madhusoodanan, the learned counsel appearing for the contesting respondents submitted that there is culpable delay in registering the crime and there is 7 days delay between the date of occurrence and date of registration of the FIR and in the meanwhile the injured ,namely, PW1 who is an active political worker of the rival group of the accused has implicated the accused persons as a result of afterthought due to political animosity. The learned counsel also, supporting the impugned judgment, submitted that there is no independent evidence to establish the prosecution case against the accused, and the identity of the actual assailants are not established by the prosecution beyond doubt. After inviting the facts and circumstances involved in the case, and the evidence and materials on record, the learned counsel submitted that the injured could not identify the accused and the present accused are falsely implicated out of sheer political CRL.R.P.No.1255/10 -:15:- vengeance. 13. I have carefully considered the arguments advanced by the learned counsel for the contesting respondents and also perused the impugned judgments. 14. Going by the judgment of the trial court and the discussions made by the learned Sessions Judge, it can be seen that, he recorded the acquittal after giving the benefit of doubt to the accused-respondents, mainly on three grounds, namely, the unexplained culpable delay of 7 days in registering the crime; the unbelievable and interested and inimical testimony of the prosecution witnesses and also the chance for false implication of accused due to political animosity. The learned counsel took me through the deposition of PWs 1, 2 and 5 and submitted that PWs1 and 2, the injured persons and PW5, who is the mother of PW1 and wife of PW2 , who was in the house at the time of the attack , categorically deposed the incident and identified the accused. On the strength of the decision reported in CRL.R.P.No.1255/10 -:16:- Gurshinder Singh v. Joga Singh and Another (2000 KHC 1803)(SC), the learned counsel submitted that this Court has to entertain this Revision Petition and to dispose of the same on merit even though the State has not filed any appeal against the order of acquittal. On the strength of the decision in Jayan v. State of Kerala (2007(3) KLT short note 1 (case No.1), the learned counsel submitted that the facts and circumstances involved in the case would show that the delay that occurred in the case is natural and it was explained properly and therefore, the trial court ought not have acquitted the accused on the ground of delay in registering the crime. 15. Whereas Sri K.S.Madhusoodanan, learned counsel appearing for respondents , on the strength of the decisions of the Apex Court in Johar and others v. Mangal Prasad and another {(2008) 3 SCC 423}; M.C.Ali and another v. State of Kerala {(2010) 4 SCC 573} and also relying upon the decisions which relied on by the trial court, namely, Thulia CRL.R.P.No.1255/10 -:17:- Kali, v. The State of T.N. (AIR 1973 SC 501) and State of Orissa v. Mr. Brahmananda Nanda (AIR 1976 SC 2488), submitted that the trial court is absolutely correct in acquitting the accused for the culpable delay that occurred in registering the crime, especially, when the prosecution and the prosecution witnesses failed to properly explain the delay and establish the identity of the accused beyond shadow of doubt. . 16. I have carefully considered the arguments advanced by the learned counsels . It is beyond dispute that the incident had taken place at about 10 a.m on 4.12.2000 in the house of PW1 and the FI Statement, viz., Ext.P1 was recorded only at 12.30 noon on 11.12.2000 from the Medical College Hospital, Kozhikode. For such a long delay, no explanation is forthcoming. According to the prosecution, after the incident, PWs 1 and 2 were initially taken to the hospital at Kuthuparamba and as there was no doctor, they were taken to Government Hospital, Thalasery and thereafter CRL.R.P.No.1255/10 -:18:- to the Medical college Hospital, Kozhikode wherein both PWs 1 and 2 were admitted and treated as inpatient for a certain period. The only reason given by PW1 for the delay is that after the incident there was Hartal for 2 – 3 days and the police could not reach in the hospital. The above explanation was rejected by the court below as the Hartal is not an obstruction for the police to reach in the hospital. In this juncture, it is also relevant to note that DW1 had admitted that he could not produce the G.D.file summoned by the court. Thus, regarding the actual time of receipt of the information, absolutely, there is no evidence. Even According to PWs 1 and 2, they were taken to two hospitals before reaching the Medical College Hospital, Kozhikode. It is unbelievable that the persons who took PWs 1 and 2 failed to inform the police if the same are correct. The learned Sessions Judge has correctly observed that PW5 - mother of PW1 and wife of PW2, who claimed to be an eye witness to the incident, had also not made any attempt to inform the matter before CRL.R.P.No.1255/10 -:19:- appropriate authority. Thus, from the available materials and evidence, it can be seen that there is long delay in registering the FIR for which there is no plausible and convincing explanation. 17. The culpability of the undue and unexplained delay in registering the FIR is more clear and relevant on taking into account in the subsequent events including in implicating the accused. In this juncture, it is relevant to refer to the plea taken by the accused and according to them, it was a false case foisted against them due to political animosity. It is also came out in evidence that several other murder cases were registered during the relevant period. After discussing and appreciating the evidence, mainly of the injured witnesses, the trial court has held that the evidence regarding the identity of the persons who caused injuries to PWs 1 and 2 is doubtful. In support of such conclusion, the learned Sessions Judge assigned convincing reasons which according to me, absolutely correct. CRL.R.P.No.1255/10 -:20:- 18. It is beyond doubt that though the alleged incident was on 4.12.2000 at about 10 a.m, Ext.P1 F.I.Statement was recorded only on 11.12.2000 at 12.30 p.m and thus, there is a delay of 7 days. The only explanation offered for the delay is that there was hartal on the subsequent days. I have already found that the said explanation is rightly rejected by the court as not convincing. It is also relevant to note that even according to PWs 1 and 2, they were attacked due to political enmity. Even though PWs 1 and 2 and PW5 claimed that neighbours came to their house immediately after the incident, they have no case that the names of the assailants disclosed to such persons. It is also relevant to note that the names of A7 and A8 not stated in the FIS though the same was recorded after 7 days. It was based upon Ext.P8 report dated 23.12.2000, the names of A7 and A8 incorporated in the array of the accused. The learned Sessions Judge doubted the correctness of the implication of the accused at the instance of PW1, that too after 7 days from the date of CRL.R.P.No.1255/10 -:21:- the incident. The learned Sessions Judge observed that mother of PW1 namely, PW5, stated that the police came firstly to their house only on the 12th day of the incident and recorded her statement. It is borne out from her statement that though the three named persons firstly came their house after the incident, she did not tell them as to who are responsible for inflicting the injuries on PWs 1 and 2. She had also failed to mention the name of the accused to the neighbouring ladies who came in their house immediately after the incident. It is also came out in evidence that PW5 went to the hospital to meet PWs 1 and 2 after 10 days from the date of the incident and, even on that day, PW1 did not tell her the name of the attackers. The learned sessions Judge has observed that though PW5, the mother of PW1 and wife of PW2, is an eye witness to the incident , she did not went to the police station to inform the matter. Thus, the trial court found that after the incident, though several persons allegedly came to the house and also to the hospital to visit PWs 1 CRL.R.P.No.1255/10 -:22:- and 2, neither PW1 nor PW2 seen to have mentioned the name of such visitors who visited them or informed the incident or name of the assailants to the police before they recording the FI Statement. According to the learned Sessions Judge, during the span of 7 days, chances for choosing and giving the