IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 CRL.A.No. 365 of 2005() ----------------------- SC.85/2001 OF SESSIONS COURT, THALASSERY. .................... APPELLANT(S)/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,(CRIMWE NO.394/99 OF KOOTHUPARAMBA, POLICE STATION). BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. RESPONDENT(S)/ACCUSED: ---------------------------------------- 1. KOOLI SASEENDRAN, S/O.KANNAN, PEON, MEENCHIRA HOUSE, 34 YEARS, KANDANKUNNU AMSOM, AYITHARA. 2. KORAMBATH SHAJI, S/O.KOTTAN, COOLIE, 29 YEARS, SREENILAYAM, SIVAPURAM AMSOM, MALOOR. 3. KARIPPAYI RAJAN, S/O.KOTTAN, COOLIE, 36 YEAR, KANDAMKUNNU AMSOM, AYITHARA DESOM. 4. KOLLAMKUNUMMAL ASHAJI, S/O. NANU, COOLIE, 26 YEARS, MOZHIKKUNU HOUSE, KANDAMKUNNU AMSOM, AYITHARA. 5. PULAPPATI SAJEEVAN, S/O.KUNHIRAMAN, COOLIE, 31 YEARS, KANDAMKUNU AMSOM, AYAITHARA. 6. MAMATHAN NANDANA, S/O.GOPALAN, VATCHMAN, 41 YEARS, DILNA NIVAS, KANDAMKUNNU AMOSM NEERVELI. 7. KARIPPAYI BABU, S/O.KOTTAN, COOLIE, AGED 29 YEARS, KANDAMKUNNU AMSOM, AYITHARA. 8. NHALLI MANOHARAN, S/O.ANANDAN, COOLIE, 29 YEARS, KANADAMKUNNU AMSOM, AYITHARA (4TH PAGE B EINGS). 9. CHALAI BABU, S/O.BALAN, COOLIE, 27 YEARS, KAVUKUNDAM HOUSE, KANDAMKUNNU AMSOM, AYITHARA DESOM. 10. PARAKKANDY SUDHEER, S/O.KUNHIRAMAN, COOLIE, 28 YEARS, KANDAMKUNU AMSOM, AYITHARA. 11. CHELERI RAVEENDRAN, S/O.GOVINDAN CONDUCTOR, 39 YEARS, SHYJALAYAM, KANADAMKUNNU AMSOM, AYITHARA DESOM. 12. KOLLUNNOL RAVEENDRAN, S/O.KANNAN, BUSINESS 36 YEARS, SIVAPURAM AMSOM, KANAHILERI. 13. KOREMBETH ANEESH, S/O.NANU, CARPENTER, 27 YEARS, SIVAPURAM AMSOM, KANHILERI. 14. MEEPPADAN PRASADAN, S/O.GOVINDAN, COOLIE, 28 YEARS, MANOJ NIVAS, SIVAPURAM AMSOM, KANHILERI. ADV. SRI.M.K.DAMODARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2009, ALONG WITH CRRP NO. 130 OF 2009, THE COURT ON 23/05/2009 DELIVERED THE FOLLOWING: A.K. BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 365 of 2005 & Crl. Rev.Ptn. 130 of 2009. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2009. JUDGMENT Bhavadasan, J, Fourteen persons would have marched out of the court with a contemptuous smile on 6.9.2003 having secured clean acquittal of the offences punishable under Sections 143, 147, 148, 302 read with Section 149 Indian Penal Code and Sections 3 and 5 of the Explosive Substance Act, mainly due to the magnanimity shown by the court below. 2. The deceased, namely, Parayil Sasi, P.Ws.1 and 3 and the accused belong to two rival political parties. The incident in this case occurred on 12.10.1999. On the said date at the relevant time P.W.1 was taking tea from the tea shop of Rajan. At about 8.30 a.m. he heard the sound of an explosion from the side of the play ground of the L.P.School. He came out of the tea shop. At that time, he found the accused and several others coming along running and the deceased and others going along the varamba of the paddy field. He found the accused running towards the deceased and two others, who were accompanying the deceased. The first accused is stated to have CRA. 365/2005. 2 extorted 'kill him'. He threw a bomb at the deceased. That exploded on his face. The deceased fell down. The accused left the place. P.W.1 also says that the accused were carrying dangerous weapons. After the accused persons left the place, P.W.1 says that when he went near the victim he found him dead. He would say that the assailants were the followers of CPM and the deceased was a follower of RSS. He would say that the reason for the attack was political rivalry. 3. P.W.1 claims to have laid Ext.P1 First Information Statement before the Koothuparamba Police Station. Ext.P1 statement given by P.W.1 was recorded by P.W.9, who then was a Sub Inspector of Koothuparamba Police Station. On the basis of the said statement, he registered Ext.P1(a) First Information Report for Crime No.394 of 1999 for offences punishable under Sections 143, 147, 148, 302 read with Section 149 Indian Penal Code and Sections 3 and 5 of Explosive Substance Act. He claims to have informed his superior officer. Investigation was taken over by P.W.11. He was then in the Crime Detachment, Kannur as Deputy Superintendent of Police. He prepared Ext.P2 scene mahazar. He recovered M.Os. 16, 18, 19, 20, 21, 22, 23 and 24 from the place of occurrence. Inquest was conducted over the body of the deceased and CRA. 365/2005. 3 Ext.P4 report was drawn up. The body was then sent for autopsy. P.W.6 conducted autopsy over the body of the deceased and prepared Ext.P5 postmortem certificate. P.W.11 had the material objects collected during investigation sent for chemical analysis and the reports received by him are Exts.P7, P8 and P9. He recorded the statements of witnesses. He arrested the accused, completed investigation and laid charge before court. 4. Judicial First Class Magistrate, Kuthuparamba, before whom final report was laid took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. Learned Magistrate found that the case is one exclusively triable by a court of Sessions and accordingly committed the case to the Sessions Court, Thalassery under Section 209 Criminal Procedure Code. Sessions Court, Thalassery made over the case to Additional Sessions Court, Adhoc-II for trial and disposal. The latter court, on receipt of the records issued summons to the accused. They entered appearance. After preliminary hearing, charge was framed for offences punishable under Sections 143, 147, 148, 302 read with Section 149 IPC and Sections 3 and 5 of Explosive Substance Act. When the charge was read out to the accused, they pleaded not guilty and claimed to be tried. Therefore, the prosecution had P.Ws.1 to CRA. 365/2005. 4 11 examined and Exts.P1 to P9 marked. M.Os. 1 to 24 were identified and marked. After closing of the prosecution evidence the accused were questioned under Section 313 of Criminal Procedure Code regarding the incriminating circumstances brought out against them. They denied all the incriminating circumstances against them and maintained that they were innocent. Finding that the accused could not be acquitted under section 232 Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence. 5. On an appreciation of the evidence in the case the court below came to the conclusion that the prosecution had miserably failed to establish the case against the accused and hence acquitted them of the charges levelled against them. The State has filed Crl. Appeal 365 of 2005 challenging the acquittal of the Sessions Court. Smt. Parayil Meenakshi, mother of the deceased has preferred Crl. Revision Petition. 130 of 2009 assailing the acquittal. 6. The question that arises for consideration is whether any interference is called for with the judgment of the court below? 7. Point: Facts fall within a narrow compass. According to the prosecution on 12.10.1999 at about 8.30 p.m. accused persons, who found CRA. 365/2005. 5 the deceased and two others coming along the paddy field threw bombs at them. One of the bombs exploded on the face of the deceased and he fell down. He did not survive. The prosecution mainly relies on the evidence of P.Ws.1 and 3 to prove the incident. They are the eye witnesses to the incident. The court below gave the following reasons for its conclusion: i) The evidence of P.Ws.1 and 3 are mutually contradictory and therefore ought to be ignored. ii) The evidence of P.W.3 is that he and one Suresh Babu had accompanied the deceased at the relevant time. P.W.3 says that several bombs were thrown at them. The lower court feels that if that is the case, P.Ws. 1 and 3 ought to have suffered injuries. iii) The court below then says that it is not possible to believe that version of the witnesses that several bombs were thrown at them, therefore the presence of P.W.3 is suspicious. iv). The investigating officer had recovered unexploded bombs from the place of occurrence. P.Ws. 1 and 3 did not say anything about the unexploded bomb. v) The lower court says that P.Ws.1 and 3 depose that three or four bombs were thrown by the accused. The court below observes that CRA. 365/2005. 6 there is no sign at the place of those bombs having exploded and that creates doubt about presence of P.Ws.1 and 3. vi) In Ext.P1, P.W.1 has stated that the accused were armed with dangerous weapons. But he does not say so while giving evidence in court. He also did not say at the time of evidence that the deceased was accompanied by three or four persons. vii) P.W.1 is a highly interested witness and furnished Ext.P1 FIS without any bonafides. The authenticity and genuineness of Ext.P1 is open to serious doubt. viii) Both P.W.1 and 3 are involved in several crimes and their antecedents are bad. ix) P.Ws. 1 and 3 had deep animosity and they have political vendetta towards the accused. The court blow observes that they were prolling for opportunity to wreck vengeance. x) The court below observes that P.Ws. 1 and 3 and the accused persons are hailing from the same locality and that P.W.1 and 3 are highly interested witnesses. Therefore their identification of the accused is not a material evidence. CRA. 365/2005. 7 xi) A reading of the evidence of P.W.3 would show that Rajeevan's tea shop was closed and if that is so, the evidence of P.W.1 is open to doubt. xii) The various articles collected from the scene of occurrence by P.W.11 remains unexplained. That also casts doubt about the prosecution story. 8. It was based on the above reasons that the court below acquitted the accused. 9. Learned Public Prosecutor pointed out that the findings of the court below and the reasonings given for acquittal are perverse and untenable both on facts and in law. The court below was not justified in drawing the above conclusions. Learned Public Prosecutor drew the attention of this court to the fact that regarding the act committed by the accused, P.Ws.1 and 3 gave uniform version. It is true that there are minor contradictions, omissions and inconsistencies in the evidence of P.Ws.1 and 3. But that has occurred due to several reasons. Reasons given by the court below to ignore the evidence of P.Ws. 1 and 3 are not legally justified. Characterising P.Ws. 1 and 3 as interested and chance witnesses CRA. 365/2005. 8 do not have the sanction of law. May be that P.Ws. 1 and 3 belong to a rival political camp. Learned Public Prosecutor drew the attention of this court to Ext.P1 and pointed out that the names of the accused find a place in the said document. Even assuming that P.Ws. 1 and 3 are interested witnesses, it is not the law that the evidence of those witnesses will have to eschewed. There is no legal bar against accepting their evidence and there is no compulsion to reject the same. First Information Statement was promptly lodged. Learned Public Prosecutor concluded by pointing out that the judgment of the court below is unsustainable. 10. Learned counsel appearing for the revision petitioner in Cr.R.P.170 of 2009 supplemented and supported the Public Prosecutor. 11. Adv. Sri. M.K. Damodaran, learned Senior Counsel appearing for the accused on the other hand pointed out that the court below has considered all the aspects and there are no grounds made out to interfere with the judgment of the court below. Learned counsel cautioned this court that the scope of interference in appeal, especially in a case of acquittal, is extremely limited. Learned counsel pointed out that the lower court, which had the occasion to see the demeanour of the witnesses and appreciate the evidence has to come to a conclusion which shall not easily upset. CRA. 365/2005. 9 Learned counsel stated that the finding of the court below that the evidence of P.Ws.1 and 3 do not stand scrutiny is fully justified. They are incompatible and are mutually inconsistent and destructive. According to the learned counsel, the accused have been falsely implicated by P.Ws.1 and 3 due to political vendetta. No independent witnesses have been examined. Learned counsel stressed that even going by the evidence, soon after the incident, the police were informed. It was several hours thereafter that Ext.P1 FIS was lodged. It is stated that Ext.P1 FIS was drawn up later conveniently. P.Ws. 1 and 3 are partisan witnesses and their evidence cannot be accepted. Learned counsel stated that as per the evidence the RSS Sakha Office is nearby and therefore the CPM workers would not have ventured to go anywhere near that place. Several articles were seized from the place of occurrence and their presence in the place remain unexplained. The evidence considered by the court below clearly indicate that the prosecution version is open to serious doubt. The lower court had occasion to find that the prosecution had not established the case beyond reasonable doubt and extended the benefit of doubt to the accused. According to the learned counsel , there is no scope for interference in appeal. 12. It will be first useful to consider the scope of interference CRA. 365/2005. 10 by the appellate court (namely High Court) in a case of acquittal. Relevant provisions (as they now stand) read as follows: “378. Appeal in case of acquittal.- Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), - (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non- CRA. 365/2005. 11 bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (3) No appeal to the High Court under sub-section (1) or sub-section(2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).” 13. Section 386 deals with the powers of appellate court. So far as it is relevant in the present case, reads as follows: CRA. 365/2005. 12 “386. Powers of the Appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;” 14. It is no doubt true that the scope of interference in appeal is restricted. The State has been given a right to appeal against the acquittal. It is however settled law that the High Court has full power to re-consider the entire evidence upon which the order is founded and to come to its own conclusion. No limitation has been fixed on the power of the High Court. But courts have been cautioned regarding the manner in which the evidence is to be appreciated and also the findings of the court below are to be treated. 15. Both sides referred to several decisions in this regard. 16. In the decision reported in Batcu Venkateshwarlu v. Public Prosecutor, High Court of A.P. ( 2009(1) Crimes 252 (SC)), it was CRA. 365/2005. 13 held as follows: “From the above decisions, in Chandrappa and Ors. v. State of Karnataka (2007(4) SCC 415), the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal that to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available CRA. 365/2005. 14 to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 17. In the decision reported State of U.P. v. Satish in ((2005) 3 SCC 114) it was held as follows: “There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon CRA. 365/2005. 15 the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v, State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of Bihar, State of Punjab v. Karnail Singh and State of Punjab v. Phola Singh.” 18. In the decision reported in Sambhaji Hindurao Deshmukh v. State of Maharashtra (JT 2008(1) SC 569), it was held as follows: “The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence which can dislodge the findings arrived by the trial court, which were CRA. 365/2005. 16 the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt. Keeping the said principles in view, we will examine the evidence to find out whether the findings of the trial court were not based on evidence and whether there was justification for the High Court to interfere with the decision of the trial court.” 19. In the decision reported in Thanedar Singh v. State of M.P. (2002) 1 SCC 487) it was held as follows: “The foregoing discussion shows that the High Court was not justified in making the comments that the trial court did not give reasons on certain important aspects or misdirected itself in the appreciation of evidence. Though the judgment of the CRA. 365/2005. 17 trial court is somewhat perfunctory and lacking clarity in certain respects, on the whole, the approach and conclusions of the trial court cannot be said to be perverse or vitiated by any serious error warranting interference with the verdict of acquittal. The view taken by the trial court, in our opinion, is a reasonably possible view and, therefore, the High Court was not justified in reversing the acquittal insofar as the appellant is concerned. The High Court failed to address itself to certain crucial factors discussed above concerning the credibility of eyewitness account and the correctness of the FIR.” 20. A reading of the above decisions will clearly show that the appellate court has the powers to reappraise the evidence in