IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 9TH FEBRUARY, 2010 / 20TH MAGHA, 1931 Crl.Rev.Pet.No. 348 of 2010 (SC.1850/2003 of ASSISTANT SESSIONS COURT, KOTTARAKKARA) .................... REVN. PETITIONER/AGGRIEVED PARTY: --------------------------------------------------------- R.RAJESH, THEMALATHU PUTHEN VEEDU, IRUMPANANAGADU P.O., EZHUKONE, KOLLAM. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): ----------------------- 1. BABU @ VAVACHAN, S/O. NANU, ALUVILAPADINJATTATHIL, ANNOOR MURI, NEDUVATHOOR VILLAGE, KOTTARAKKARA. 2. SANTHOSH @ KAKKAPANI, S/O. BALAN, CHARUVILATHAZHATHIL, NADUVATHOOR VILLAGE, KOTTARAKKARA. 3. PRADEEP, S/O. BALAKRISHNAN, NEDUVATHOOR VILLAGE, KOTTARAKKARA. 4. SIVAPRASAD @ PRASAD, CHARUVILAPUTHEN VEEDU, NADUVATHOOR VILLAGE, KOTTARAKKARA. 5. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R5 BY PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/02/2010, THE COURT ON 09/02/2010 PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No.348 of 2010 --------------------------------------------- Dated this the 9th day of February, 2010 O R D E R The revision petitioner herein, claiming that he is one of the injured persons, approached this Court challenging the order of acquittal of the trial court, in a prosecution for the offences punishable under Sections 323,324,307 and 34 of I.P.C. read with Section 27 of the Arms Act, 1959, by judgment dated 7.8.2009 in S.C.No.1850 of 2003 of the Court of Assistant Sessions Judge, Kottarakkara. 2. The above sessions case was instituted in the said court on receiving the case files on committing the case as per order dated 7.10.2003 of the Judicial First Class Magistrate Court-I, Kottarakkara in C.P.No.274 of 2003, on the final report filed by the Police after investigation in Crime No.222/02 of Ezhukone Police Station. Crl.R.PNO.348 of 2010 :-2-: 3. The prosecution allegation is that on 22.6.2002 at 8.15 p.m., while Pws.1 and 9 were standing on the side of Kollam-Chenkottah public road at Ambalathumkala Junction, and while they were talking, the accused persons came there with deadly weapons and attacked them with the above weapons. According to the allegation of the prosecution, A1, by using a sword in his hand, hit PW9 shouting to kill him and A2, by means of katthal, hit on the back of the head of PW9 twice and thereby caused injuries on the head of PW9. It is also stated that A1 kicked PW9. According to prosecution, when PW1 tried to prevent the attack against PW9, A1 and A2 assaulted him by fisting and kicking him and chased him away. It is also the case of the prosecution that when PW9 fell down, A1, by using the sword and A2 and A3 by using Katthal hit PW9 in quick succession and A3 thrashed him many times by means of an iron rode and thus, according to the prosecution, the accused caused lacerated injuries on PW9 on various parts Crl.R.PNO.348 of 2010 :-3-: of his body. Thus, the prosecution is specific in alleging that the accused persons attempted to kill PW9. 4. On the basis of the said allegation, the Police registered Crime No.222/02 in the Ezhukone Police Station. On finalisation of the investigation and on filing the report, the committal court took cognizance and committed the case and the Sessions Court, Kollam made over the case to the trial court for trial. A formal charge was framed in the trial court after hearing the prosecution as well as the defence for the offences punishable under Section 323,324 and 307 I.P.C. read with Section 27 of the Arms Act. When the charge was read over and explained to the accused, they pleaded not guilty, as a result of which the trial was further proceeded during which Pws.1 to 15 were examined and marked Exts.P1 to P16 as the documentary evidence for the prosecution. Neither any witness nor any document was produced from the side of the defence. After the prosecution evidence, when the accused were questioned Crl.R.PNO.348 of 2010 :-4-: under Section 313 of Cr.P.C., they denied the incriminating circumstances, which emerged through the prosecution evidence and the accused maintained the defence of total denial and false implication. The defence had given entirely different version as to how the prosecution witnesses sustained injuries. After considering the evidence on record and the facts and circumstances involved in the case, the trial court has categorically found that the prosecution has miserably failed to establish the case beyond reasonable doubt and the accused are entitled to get benefit of doubt. Accordingly, the accused, four in numbers were acquitted and it is the above order of acquittal and judgment challenged in this revision petition. 5. Heard Sri.P.S.Sreedharan Pillai, learned counsel appearing for the revision petitioner and also Sri.P.R.Jayakrishnan, learned Public Prosecutor. 6. Learned counsel for the revision petitioner took me through the evidence of prosecution witnesses referred in Crl.R.PNO.348 of 2010 :-5-: the judgment and the materials on record and also the impugned judgment of the trial court. According to the learned counsel, the trial court miserably failed to consider the acceptable and creditworthy evidence of Pws.1 and 9 who are the injured witnesses in the case. Learned counsel pointed out that the minor contradictions or inconsistencies that spell out during the trial, especially with respect to the version contained in the F.I.R and the evidence of the prosecution witnesses are not sufficient grounds to reject the prosecution case disbelieving those witnesses. According to the learned counsel, the approach made by the trial court in disbelieving the prosecution witnesses on the ground that there is no independent evidence, is illegal and incorrect. In order to support the above submission, learned counsel pointed out that the evidences of Pws. 1 and 9 are admissible and reliable since they are the injured persons in the alleged incident. It is the further submission of learned counsel that the judicial pronouncement shows Crl.R.PNO.348 of 2010 :-6-: that the evidence of substantial witnesses has to be given preference over the medical evidence and the inconsistencies between the medical evidence and ocular evidence shall not be treated as a ground to reject the entire prosecution case. It is also the case of learned counsel that rejection of evidence of PW10, who is an independent witness, is also illegal. Thus, the learned counsel submitted that the impugned judgment is liable to be set aside and the order of acquittal is liable to be reversed and the accused are liable to be punished for the offences levelled against them. 7. On the other hand, the learned Public Prosecutor submitted that the judgment of the trial court is not tainted or liable to be interfered with since there is nothing illegal, irregular or improper. It is also the submission of the learned Public Prosecutor that all the contentions of the petitioner are on the basis of the facts involved in the case which have already been considered by the trial court and Crl.R.PNO.348 of 2010 :-7-: this Court has no jurisdiction to consider the same in revision. 8. I have carefully considered the contentions advanced by the learned counsel for the revision petitioner as well as the learned Public Prosecutor and also perused the judgment of the trial court. 9. From the impugned judgment, it can be seen that the trial court has considered the entire materials and evidence on record and came into its own conclusion on the basis of such materials on record. The trial court has found that according to PW1, when Ext.P1 F.I.statement was given, the number of accused persons was shown as 12. PW1 was specific about the names of six persons among the gang and he had specifically stated in the F.I.statement that the rest of persons, i.e., six in numbers, can be identified at sight. It was on the basis of the above version of PW1 that contained in Ext.P1 F.I.statement, the Sub Inspector of Police, Ezhukone Police Station viz., PW13 registered the Crl.R.PNO.348 of 2010 :-8-: crime against six named persons and certain other six persons who are identifiable. Ext.P10 is the F.I.R. prepared on the basis of F.I.statement. The trial court referred the version contained in Ext.P10, according to which, PW1 was attacked and one Mullackal Santhosh by means of an axe (mazhu) hit on the head of PW9 twice and when PW1, on seeing the said attack, tried to prevent the attack and by that time, the two identifiable persons fisted and kicked him and threatened him. It is also found that as per the version in F.I.R., one Manjeri Unni, by means of sword, hit on the right hand of PW9 and further that it has been stated in Ext.P10 F.I.R. that among the attackers, one Kuttappan was also present and by using a sword, he hit PW9 on the various parts of his body. Thus, the names shown in the F.I.statement viz,, Mullackal Santhosh, Manjeri Unni and Kuttappan were arrayed as A1,A2 and A5 in Ext.P10 F.I.R. But, according to the trial court, the prosecution had abandoned such case which disclosed as per Ext.P10 F.I.R Crl.R.PNO.348 of 2010 :-9-: and during the trial, entirely new and different version has been given. Thus, the trial court found that as per the new case of the prosecution, the accused viz,, A1,A2,A5 whose names are found place in Exts.P1 and P10 F.I.R. had never participated in the commission of offence in the case. According to the trial court, the further deviation of the prosecution from its earlier case is to the effect that, only A3, among the persons shown as six identifiable persons in F.I.R., against whom the allegation was that PW9 was brutally tortured by deadly weapons, attacked PW9 and no other persons participated in the incident. Thus, on the basis of evidence and materials on record, the trial court has categorically found that the prosecution has given a go by to its own case stated in Ext.P1 F.I.statement and Ext.P10 F.I.R. that Pws.1 and 9 were brutally attacked by a gang of 12 persons, among them, six persons' names were given and six others were shown as identifiable at sight. 10. Further, the trial court evaluated the evidence of Crl.R.PNO.348 of 2010 :-10-: Pws.1 and 9 against the accused. According to the trial court, as per evidence of Pws.1 and 9, one Babu @ Vavachan is the person who firstly hit on the head of PW9 by using a sword and thereafter, A2 also hit on the head of PW9 twice. From the discussion of the trial court, it can be seen that the above version of Pws.1 and 9 regarding the overt act is a new story. No role was attributed to A1 as per Exts.P1 and P10 and according to Ext.P10 F.I.R., the first hit was effected by Mullakkal Santhosh and Manjeri Unni. The trial court further found that in the F.I.statement, PW1 had not stated the name of persons who assaulted him. But, for the first time before the court, it is stated that it is one Pradeep and Sivaprasad. The trial court was not prepared to believe the above version of PW1 implicating A3 and A4 for the first time after lodging Ext.P1 F.I.statement and registration of Ext.P10 F.I.R. on the ground that the witness has personal acquaintance with A3 and A4 for years back as they belong to the same locality. On the basis of the above Crl.R.PNO.348 of 2010 :-11-: fact, the trial court mooted a question as to why PW1 did not correctly say their names before Police, if they are the actual culprits. For the above reasoning, the trial court was not prepared to accept the explanation given by PW1 for not giving the name of A3 and A4. Therefore, I cannot find fault with the observation made by the trial court that the names of the present accused are given to the Police subsequently, as a result of deliberation of Pws.1 and 9, which is taken after giving Ext.P1 and registering of Ext.P10 F.I.R. 11. The trial court has also found that in Ext.P4 wound certificate, the name of one Santhosh was given as the person who inflicted the injuries. When PW5, who issued Ext.P4, was examined, deposed that the patient was conscious and he himself had stated about the person responsible for inflicting the injury as one Santhosh and no name of other persons was given. On the basis of the above material and evidence, the trial court has found that the prosecution has miserably failed to adduce proper evidence Crl.R.PNO.348 of 2010 :-12-: to identify the persons involved in the incident and the evidence of prosecution, regarding the number of persons involved in the incident, the identity of the persons and also the overt acts of the attackers, are shabby in nature and the evidence adduced is not consistent with Exts.P1 and P10 F.I.R. 12. In the light of the above discussion and as the trial court has found that the evidence adduced by the prosecution are shabby, especially with respect to the above three aspects, the trial court has undertaken the effort to find out any assurance from independent sources to accept the evidence of those injured witnesses. Out of the two independent witnesses, viz. Pws. 10 and 2, PW2 turned hostile and he had deposed that he did not see the incident. The evidence of PW10 in the chief examination shows that the accused persons came to the spot and pushed down PW9 and PW10, but is not in a position to say as to what had been done by each accused. It is also the version of PW10 Crl.R.PNO.348 of 2010 :-13-: that he did not tell the police about the overt acts in detail. The trial court was not prepared to accept the vague version given by PW10 regarding the incident, especially when PW10 admitted that he is a sympathiser of R.S.S., particularly when the injured are R.S.S.men. So the trial court concluded that the prosecution has failed to prove its case by examining independent witnesses though there was possibility of procuring independent witnesses since the alleged place of occurrence was in front of the tea shop of one Yashodharan and four or five persons were standing there. Learned counsel submitted that there was a failure on the part of the prosecution agency to procure the independent witnesses because they were hand in glove with the accused persons. The above submission is not supported by any document or material on record. 13. Through an elaborate discussion in paragraph 8 of the impugned judgment, which I am not intended to repeat here again, the trial court found that the ocular evidence Crl.R.PNO.348 of 2010 :-14-: and the medical evidence are conflicting each other and the medical evidence disproved the case of the prosecution. In this connection, the submission of learned counsel is that the substantial evidence of ocular witnesses has to be accepted by giving preference to the medical evidence. According to me, I have no hesitation to accept the above abstract proposition in the matter of appreciating evidence, but the above proposition, as such, is not applicable in the present case, in the light of the fact that when the prosecution relieved from its first version that borne out from Exts.P1 and P10. During the trial, regarding the incident, the number of accused, the name of the accused, the overt act of the accused etc, the prosecution has attempted to bring out a new case. The new story is not convincing as there is no acceptable and reliable evidence. Under the above circumstances, the inconsistencies between the medical evidence and the interested and inimical version of the prosecution witnesses assume much Crl.R.PNO.348 of 2010 :-15-: importance and therefore, the trial court is right in disbelieving the prosecution case as the medical evidence is not supporting the same. 14. In this juncture, it is relevant to consider the defence version regarding the incident. According to them, PWs.1 to 9 are R.S.S. workers and certain autorickshaw drivers at the Ambalathumkala East junction also belong to R.S.S. and there were frequent clashes in the place during night times and in the night of the alleged incident, some outsiders came at the place of occurrence and made confrontation with the R.S.S. men and PW9 came at the spot and PW9 sustained injuries in the subsequent incident that had taken place there. It is also the case of the defence that PW9 has got enmity towards the accused as they declined the request of PW9 to join R.S.S. and therefore, according to the defence, they were falsely implicated at the instance of R.S.S.persons. 15. When the facts and circumstances involved in the Crl.R.PNO.348 of 2010 :-16-: case are examined in the background of the defence set up by the accused, especially in the light of the fundamental defects pointed out by the trial court regarding the number of persons involved in the incident, overt act of each accused, the new version of prosecution deviating from Exts.P1 and P10, the contradictions and inconsistencies of the evidence of Pws.1 and 9, absence of independent evidence, glaring inconsistencies between the evidence of ocular witnesses and the medical evidence, I find no reason to interfere with the order of the trial court. From the above discussion, it is crystal clear that by appreciating evidence and the materials on record, in its correct perspective, the trial court, which got the privilege to observe the demeanour of the witnesses, has found that the prosecution has miserably failed to establish its case by adducing cogent and satisfactory evidence and as such it was held that the accused is entitled to get benefit of doubt. Nothing brought out to interfere with the above finding and Crl.R.PNO.348 of 2010 :-17-: conclusion of the trial court based upon the facts and circumstances involved in the case, so as to exercise the revisional jurisdiction of this Court. In the result, there is no merit in the Crl.R.P. and accordingly, the same is dismissed. SD/- V.K.Mohanan, Judge MBS/ -TRUE COPY- P.S.TO JUDGE. Crl.R.PNO.348 of 2010 :-18-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 ------------------------------------ -------- O R D E R Crl.R.PNO.348 of 2010 :-19-: DATED: -10-2009 Crl.R.PNO.348 of 2010 :-20-: