Abdul Manof v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934** **Crl.L.P..No. 823 of 2008 ( )** **---------------------------AGAINST THE JUDGMENT IN CC.568/2000 of J.M.F.C.-II,PALAKKAD, DTD.22.1.2004** **ACCUSED(S)/COMPLAINANT:** **----------------------** **ABDUL MANOF, S/O. BAPPUKUTTY, KADAVATH VEEDU, PARALI PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** ## **COMPLAINANT(S)/RESPONDENT/STATE & ACCUSED:** **------------------------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHRI.PRASAD, S/O. ABRAHAM, PRAMOD, HOUSE KANJIKODE, PALAKKAD. 3. SUKUNA SUNDARAN, S/O. MADHAVAN, CHADAYAN KALAI, KANJIKODE. BY ADV.SMT.LALIZA T.Y., PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 19-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.L.P..No. 823 of 2008** ## **APPENDIX** **EXHIBITS FOR THE PETITIONER :-** **ANNEXURE I : COPY OF THE JUDGMENT IN C.C.NO.568/2000 OF JFCM-II, PALAKKAD** **EXHIBITS FOR THE RESPONDENT :- NIL** **//TRUE COPY//** **P.A. TO JUDGE** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.L.P.No.823 of 2008** ## **------------------------------Dated this the 19[th] day of September, 2012.** ## **O R D E R** The complainant in a private complaint is the petitioner herein who seeks leave of this Court to file an appeal against the judgment dated 22.1.2004 in C.C.No.568 of 2000 of the court of Judicial First Class Magistrate-II, Palakkad, since the learned Magistrate acquitted the accused-two in numbers, under section 248 (1) of Cr.P.C., who faced the prosecution for the offence punishable under section 324 r/w 34 of IPC. 2. Heard the counsel for the petitioner and the learned Public Prosecutor. I have perused the judgment sought to be impugned. 3. The case of the complainant is that on 9.1.2000 at about 9 p.m. when he was travelling in a motor cycle both the accused chased him in another motor cycle and 2 ## **Crl.L.P.No.823 of 2008** intercepted him near the Kalmandapam bridge and attacked A1 beat with a wooden rafter on the head and face of the complainant and A2 beat with stick on his knee voluntarily causing hurt to him. It is the further case of the complainant that he was residing alongwith his family in the house of the father of accused no.1 on rent and accused no.1 and his family members were always threatening the complainant and his family and therefore the wife of the complainant filed O.S.No.953 of 1999 before the Munsiff's court, Palakkad, against the father of A1 and the accused attacked the complainant due to the above enemity. It is also the case of the complainant that he had questioned A1 against the disturbance caused by A1 to the female servant in the house of the complainant and the accused caused hurt to him. According to the complainant, the police had registered a crime, but the same was referred and therefore he approached the trial court. 4. On the appearance of the accused after examination 3 ## **Crl.L.P.No.823 of 2008** of Pws.1 and 2 and preliminary hearing, a formal charge was framed against the accused for the offence punishable under section 324 r/w 34 of IPC and the same was denied by the accused when it read over and explained to him. Thereafter, Pws.1 and 2 were further examined and PW3 was also examined and Ext.P1 was marked. Finally, the trial court has found that the complainant has not succeeded in proving the case against the accused beyond reasonable doubt and therefore extending the benefit of doubt, the accused are acquitted under section 248(1) of Cr.P.C. It is the above findings and order of acquittal are sought to be challenged for which leave of this Court is prayed for under section 378(4) of Cr.P.C. 5. Though the above leave petition was presented in this Court as early as on 10.9.2004, the above petition is pending before this Court for the last 8 years. The learned counsel for the petitioner vehemently submitted that the findings of the court below are incorrect and illegal and are 4 ## **Crl.L.P.No.823 of 2008** liable to be interfered with. According to the learned counsel, without assigning any proper and convincing reasons, the learned Magistrate rejected the evidence of PW1 regarding the occurrence inspite of the fact that the evidence of PW1 is corroborated by the evidence of Pws.2 and 3. It is also the case of the counsel that the evidence of PW3, who is an independent witness, is also discarded by the trial court. It is the further case of the counsel that on the basis of the evidence of Pws.1 and 2, the complainant has established his consistent case and the learned Magistrate rejected the case merely on the ground that the police has referred the case. According to the counsel, in the absence of any major discrepancy among the prosecution evidence, the learned Magistrate is not correct in rejecting the version of eye witnesses simply on the basis of minor inconsistencies. Therefore, the counsel submitted that in case an appeal is entertained, there is every possibility to interfere with the findings of the court below 5 ## **Crl.L.P.No.823 of 2008** and to convict the accused. 6. I have carefully considered the arguments advanced by the learned counsel for the petitioner and I have gone through the evidence and materials on record. 7. In the light of the arguments advanced by the learned counsel for the petitioner and in the light of the evidence and materials on record, the question to be considered is whether the petitioner is entitled to get the leave as sought for or whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the judgment sought to be impugned. 8. I have already referred the case of the complainant. In this juncture it is relevant to note that the police has already registered a crime on the basis of the statement given by the complainant, as crime no.12/00 but subsequently the police has referred the same as false case. Ext.D1 is the said refer report. DW1 is the Sub Inspector of police, Town North Police station, through whom Ext.D1 6 ## **Crl.L.P.No.823 of 2008** was marked. Going by the evidence of the prosecution it can be seen that, according to PW2, the doctor and as disclosed by Ext.P1 wound certificate PW1, the complainant had sustained the following injuries **:** - “(1) Contused abrasion on the back of right writ. (2) Contused abrasion on the dorzum of right hand. - (3) A contused abrasion on the right side of face. - (4) A contused abrasion on the dorzum of right foot. - (5) A contused abrasion on the right thigh.” But according to DW1-the Sub Inspector of police of Town North Police station, the investigation revealed that the case is a false one and according to the police and as per Ext.D1 report, the complainant sustained injuries while he was travelling in a motor cycle and when he reached near the Kalmandapam bridge, the vehicle was skid up and overturned and thus the complainant sustained injuries. According to the defence, as the complainant and his family were evicted from the house of father of A1, the case was falsely foisted against the accused. In this respect it is 7 ## **Crl.L.P.No.823 of 2008** relevant to note that, DW1 has deposed that an intimation was sent to the police station by the doctor stating that the complainant was undergoing treatment in the hospital for the injuries sustained in a road traffic accident at Kalmandapam on 9.1.2000 at 9 p.m. According to DW1, in the statement recorded during the investigation, the doctor concerned has stated about the said fact to DW1. 9. The trial court on appreciation of evidence has found that, according to PW2, the alleged cause of injury was beating with wooden rafter on the head when PW1 was travelling in a motor cycle. The learned Magistrate has found that, the intimation referred to above is not produced. It is also found by the learned Magistrate that the accused has not challenged the intimation. Thus the learned Magistrate has observed that, though according to the doctor the alleged cause of injury was beating with wooden rafter on the head, an intimation was sent from the hospital to the police station stating that the cause of injury was 8 ## **Crl.L.P.No.823 of 2008** road traffic accident. 10. In para 11 of the judgment which is sought to be impugned, the learned Magistrate has considered the evidence of PW3 who cited as witness to corroborate the evidence of PW1-the complainant. In para 12 of the judgment the learned Magistrate has found that, according to PW1, and as per his complaint, the incident took place near the Kalmandapam bridge but PW3 has deposed that the incident took place at the middle of the bridge. PW3 has also stated that the people gathered there took PW1 to the hospital. But when PW1 was examined, he claimed that, though people gathered there and they sent him to hospital, firstly he went to his house and then only he gone to the hospital. So on the basis of the above evidence, according to the learned Magistrate, if PW3 had seen the incident, he could have stated the actual place of occurrence and he would have seen that nobody had accompanied PW1 to the hospital and thus the learned Magistrate is not prepared to 9 ## **Crl.L.P.No.823 of 2008** accept the evidence of PW3 as an eye witness. The learned Magistrate has also found that, though PW3 deposed, that he had stated in his sworn statement about the beating by both the accused, the sworn statement given by PW3 shows that he stated before the court that only one person beat PW1. Thus, after a thorough scrutiny of the evidence of PW3, the learned Magistrate has found that the identification of accused made by PW3 before the court cannot be accepted as correct. Similarly, after appreciation of the evidence of PW3, the learned Magistrate is also of the opinion that the evidence of PW3 cannot be accepted as correct, that he had seen the incident. 11. It is relevant to note that, in para 15 of the judgment, the learned Magistrate has found that though according to PW1 both the accused caused hurt to him, in the sworn statement according to PW1, only one accused was there in causing hurt to him. The learned Magistrate has also found that though in the chief examination of PW1 10 ## **Crl.L.P.No.823 of 2008** it is stated that after the incident, he was taken to the hospital, in the cross examination he has deposed that he reached the hospital, which is about 1 k.m. away from the place of incident, only at 3.30 a.m. and that at first he went to his house. The learned Magistrate has also found that in the re-examination, PW1 has stated that though he was sent to the hospital by the people gathered there, he went to his home and thereafter only, he went to the hospital. It is the further finding of the learned Magistrate that though according to PW1 he reached the hospital at 3.30 a.m., the evidence of PW2 shows that, PW1 was examined by PW2 only at 8.50 a.m. The learned Magistrate was not prepared to accept the explanation offered by PW1 with respect to the delay in examining him by the doctor. On the basis of the discussion in para 16 of the judgment, the learned Magistrate was also not inclined to believe the case of PW1 that he had sustained injuries on his head and there was bleeding and there was injury on his right knee, since he did 11 ## **Crl.L.P.No.823 of 2008** not preferred to go first to the hospital. The learned Magistrate was also of the opinion that, especially in the light of the evidence of DW1 that intimation was received from the hospital stating that the cause of injury was road traffic accident, the case of the complainant cannot be accepted, particularly when the parties were on enemical terms. Thus according to the learned Magistrate, the complainant has miserably failed to prove his case against the accused beyond reasonable doubt. 12. From the above discussion and the materials and evidence referred to above, which relied on by the learned Magistrate it can be seen that, the learned Magistrate has properly appreciated the evidence on record and came into his own conclusion about the standard of the evidence adduced and he refused to accept those evidence because of its inherent improbabilities and defects. Thus it can be seen that the learned Magistrate in support of his findings assigned judicial and sound reasons and the said findings 12 ## **Crl.L.P.No.823 of 2008** and reasonings cannot be treated as perverse or illegal. 13. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.” Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the presumption of innocence bolstered as per the 13 ## **Crl.L.P.No.823 of 2008** judgment in question. 14. Therefore, I find no reason to grant special leave as prayed for, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge