Abdul Rasheed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **CRL.A.No.58 OF 2004** **AGAINST THE ORDER/JUDGMENT IN CC 404/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA** **AGAINST THE ORDER/JUDGMENT IN CRL.L.P NO. 444/2003 DATED 21-102003 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **ABDUL RASHEED, S/O. HYDROSE, CHIRAYATH HOUSE, NADACAVU BHAGOM, SOUTH EZHIPURAM.** ## **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/S:** |**1**|**K.M.GIGIMON,**| |---|---| ||**S/O.MATHEW, SUB INSPECTOR OF POLICE,, KOTHAMANGALAM.**| |**2**|**SADANANDAN**| ||**SO.KESAVAN, DRIVER (HEAD CONSTABLE), PERUMBAVOOR.**| |**3**|**MOHAMMED**| ||**SO.IBRAHIM, POLICE CONSTABLE,, KIZHAKKUMBHAGOM.**| |**4**|**STATE OF KERALA**| ||**REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,**| ||**ERNAKULAM.**| ||**R1 BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM**| ||**R1 BY ADV. SRI.V.RAJENDRAN PERUMBAVOOR**| ||**SR.PP- SRI. K.B.UDAYAKUMAR**| **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-12-2020, THE COURT ON 17-12-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.58 OF 2004** **2** ## **J U D G M E N T** ## **Dated this the 17th day of December 2020** Appellant is the complaint in C.C No.404/99 on the file of the Judicial First Class magistrate-I, Aluva. 2. The above complaint is filed by the appellant against three police men, who are respondents No.1 to 3 in this appeal. (Hereinafter, parties are mentioned in accordance with their rank before the trial court.) 3. The case of the complainant in brief is that, on 25.07.1998 at 7.30 p.m, the first and third accused came in a departmental jeep driven by the second accused to the crusher unit conducted by the complainant which is taken on lease from PW8. Complainant was taken into custody. It is alleged that the accused Nos.1 to 3 assaulted the complainant **CRL.A.No.58 OF 2004** **3** mercilessly, from the jeep and from the station. The complainant narrated the details of the assault received by him from the accused in the complaint in detail. Subsequently, when the complainant was produced before the learned Magistrate, in connection with Crime No.510/1998 of Aluva Police Station. Ext.P2 is the remand report of the complainant. In Ext.P2, there is an endorsement by the learned Magistrate to the effect that there was a complaint from the complainant that he was manhandled by the police. That was on 26.07.1998 at 5 p.m. Thereafter, the brother of the complainant filed C.M.P no.1045/1998 before the Judicial Magistrate Court, Perumbavoor, alleging that the Jail Superintendent is not giving proper treatment to the complainant. As per order dated 28.07.1998, the learned Magistrate called for an explanation from the Jail Superintendent. Ext.P4 is the order passed by the learned Magistrate in C.M.P No.1045/1998. Subsequently, the complainant was produced before the **CRL.A.No.58 OF 2004** **4** Doctors and Ext.P1 is a certificate issued by the Assistant Surgeon, Govt. Hospital, in which, it is stated that she examined the complainant on 05.11.1998 and the audiogram of the complainant shows that there is loss of hearing to the left side of his ears. Hence, it is alleged that the accused committed the offences under Sections 341, 342, 323, 324, 325, 294 r/w 34 IPC. 4. The complaint was taken on file by the the learned magistrate, after conducting preliminary enquiry, for the offences under Sections 341, 342, 323, 324, 325, 294 r/w 34 IPC. Thereafter, a preliminary enquiry was conducted and the court framed charge under Sections 323, 324, 342, 325 r/w 34 IPC. 5. To substantiate the case, 11 witnesses were examined on the side of the complainant. Ext.P1 to P8 were also marked. After going through the evidence and documents, the trial court found that the accused is not guilty for the offences alleged. Accordingly, the accused is acquitted. **CRL.A.No.58 OF 2004** **5** Aggrieved by the above acquittal order, this Criminal Appeal is filed. 6. Heard counsel for the appellant/complainant and the counsel for respondent/accused. I also heard the learned Public Prosecutor. 7. The counsel for the appellant submitted that this is a case in which there is police torture to a citizen. The counsel submitted that a perusal of Exts.P2 and P3 will show that the complainant has got grievance from the beginning that there is police torture. The counsel takes me through Exts.P2 and P3, in which the learned Magistrate also taken cognizance of the fact that there is a complaint from the complainant about the police torture. The learned counsel submitted that there is eye witnesses to the incident and PW3 to PW5 are eyewitnesses. The counsel also submitted that the medical evidence also adduced by the complainant to prove the offence. **CRL.A.No.58 OF 2004** **6** 8. According to the counsel, in the light of the evidence of PW1 to 5 and the medical evidence adduced by the complainant, the offence is proved and the learned Magistrate erred in acquitting the accused. 9. The counsel for the accused submitted that the trial court after considering the entire oral and documentary evidence, came to a definite conclusion that the accused is not guilty. The counsel submitted that this is an appeal against acquittal, in which this court may not interfere with the well considered judgment of the lower court. The counsel submitted that there is nothing to interfere with the acquittal order passed by the lower court. 10. The point for consideration is whether the judgment dated 02.7.2003 in C.C No.404/99 on the file the Judicial First Class Magistrate-I, Aluva is sustainable. 11. It is an admitted fact that the complainant was an accused in Crime No.510/98 of Aluva Police Station. It is also **CRL.A.No.58 OF 2004** **7** an admitted fact that the complainant was arrested in connection with Crime No.510/98 of Aluva Police Station. Therefore, the arrest and detention of the complainant is proved by Ext.P2 remand report. Then the question is whether the allegation of assault and wrongful confinement, alleged by the complainant is proved in the facts and circumstance of the case. I perused the complaint and the evidence adduced by complainant. A reading of the complaint and the evidence adduced by the complainant, will show that there was brutal assault on the complainant. The details of the attack/assault from the side of the accused is narrated by the complainant in the complaint and in the evidence. The first document to show that the complainant sustained some injury is Ext.P5. It is dated from 26.07.1998 onwards. It is true that there is allegation of assault noted in these documents. But no serious external injury is seen. 12. I perused Ext.P1 a disability certificate issued by the **CRL.A.No.58 OF 2004** **8** Dr.Elizebath Chandy, who is the Assistant Surgeon, Taluk Head Quarters Hospital, Aluva. That document only show that the audiogram which was conducted on 05.11.1998. It is true that there is hearing loss to the complainant. There is no evidence to show that the complainant sustained the hearing loss because of the assault from the accused. If the allegation of the complainant that he was brutally assaulted and attacked as narrated by him in the complaint and in the evidence, according to me, there will be injury even on the day on which he was examined by the Doctor. But there is no external injury to the complainant. Moreover, simply because in the audiogram, it is noted that there is hearing loss, this Court cannot conclude that the hearing loss sustained to the complainant because of the assault on him on 25.07.1998. It is true that the allegation against the accused are very serious. Moreover, the complainant has got a grievance from the beginning itself that he was assaulted by the accused. That is **CRL.A.No.58 OF 2004** **9** proved from Exts.P2 and P3. But the evidence adduced by the complainant is not in tune with the medical evidence adduced in this case. 13. This is an appeal against the acquittal. The jurisdiction of this Court to entertain an appeal against the acquittal, is considered by this Court and the Apex Court in several judgments. Once an accused is acquitted, the presumption of innocence is strengthened is the settled position. In **Chandrappa and others Vs. State of Katakana** [2007 4 SCC 415] the Apex Court considered all the earlier judgments and laid down certain general principles regarding the power of appellate court while considering an appeal against acquittal. 14. In **Sambat Babso Kale and another v. State of Maharashtra** [AIR 2019 SC 1852], the above judgment was again considered by the apex court and reiterated the same. The relevant portion is extracted hereunder: **CRL.A.No.58 OF 2004** **10** 7. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415, laid down the following principles: “42.From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (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 than 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 **CRL.A.No.58 OF 2004** **11** innocence is available 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.” 15. I have to consider this appeal against the acquittal based on the above principle laid down by the Apex Court. 16. The trial court after considering the entire oral and documentary evidence came to a definite conclusion that the accused is not guilty. The concluding portion of the impugned judgment is extracted hereunder: 19. PWs 1 to 3 and 8 deposed about serious assault on the body of PW1. As contended by the defence counsel and as discussed in the preceding paragraph, the complainant could not succeeded to prove his case beyond reasonable doubt. The evidence given by the prosecution witnesses is not cogent and convincing. PW 2 and 3 who alleged to have witnessed the incident of accused No. 1 beating to PW1 that could not be approved by the complainant. Moreover, PW2 given a complaint before the Judl.I Class Magistrate's Court Perumbavoor stating that the eyes of his brother is sustained injury caused by accused and he was denied medical aid etc. That is against the **CRL.A.No.58 OF 2004** **12** prosecution case. The evidence tendered by PWs 2 and 3 who reached together in the auto rickshaw of PW5 cannot be believed. They are the witnesses cited to prove the alleged assault at the police station. To prove the alleged incident at the crusher, prosecution has examined PW4 and 8. Admittedly, PW4 is co-accused of complainant and PW 8 is the landlady. Their version also is not cogent and and it is contradicting the evidence of PW1. According to pw1 the first incident took place in the metal crusher. Accused No.1 alleged to have beat on his both ears. PW 1, 4 and 8 deposed about the incident. The words alleged to have used by the accused NO. 1 immediately on his arrival, is spoken to by the witnesses in the three different ways. Admittedly, 4 and 8 are interested witnesses PW1 has alleged that by the act of accused No.1 he lost the hearing capacity of both ears. However he could not produce the medical evidence to prove the hearing deficiency. PW10 issued Ext.P1certificate relying on a audiogram. Audiogram is not proved in this case. The doctor who made the audiogram is also not examined. PW10 opined that hearing deficiency can occur due to several reasons, such as by birth by standing near a place of explosions etc. Complainant could not succeed to prove that he has suffered hearing deficiency and that was occurred due to any act of the accused herein. 20. The 2[nd] part of incident is alleged to have taken place in the police station premises. PW1 gave evidence that he was brutally man handled by the accused herein. He deposed that accused No.1 heat and kicked, accused No. 2 tied his hands put ruler behind hand and head and accused No.1 beat on his palm, leg with the cane and beating continued till it was broken. He was unable to walk etc. He did not report this aspect to the Perumbavur Magistrate. He was taken to the hospital on the 4[th] day. He was not having any injuries on his body. He is a person who is beaten with a stick on the palm till the stick is broken there is every possibility of sustaining injury. There is absolutely no medical evidence. PW2 deposed that he found blood coming out from the ear of PW1 and PW 3 deposed that **CRL.A.No.58 OF 2004** **13** blood coming from the mouth of PW-1 and PW1 does not have any such. The evidence of PWs2, 3 and 5 are not at all reliable. Moreover, PW2 filed P3 petitioner on the next date before the Judl.I Class Magistrate's Court Perumbavoor, alleging that his brother who sustained injury on the eyes is not provided with medical aid and as directed by the court etc. PW1 has deposed that there were many people gathered when he was taken away by the police from the crusher. But no independent witness is cited to prove the incident . Though the complainant was allegedly an offence punishable u/s. 294 (b) I.P.C. Cognizance was not taken and thus there is no charge also. Admittedly, the complainant was an accused in a cognizable case. The S.I. arrested him and brought to the station. The police official arresting a person need to produce him before the concerned court within 24 hours. Here he has no case that he was not produced before the court within the stipulated time. Arresting the person keeping him in the station for completing the other formalities cannot be held to have committed wrongfully confinement. There is no evidence to prove an offence u/s. 342 I.P.C as discussed in the proceeding paragraph. Evidence adduced in the complaint is also not sufficient to warrant a conviction u/Ss. 323, 324, 325 I.P.C. 21. Due to the above infirmities in the prosecution evidence I find that complainant could not succeed to prove the charge leveled against the accused I find all of them not guilty for offence punishable u/Ss. 323, 324, 342, 325 r/w. 34 I.P.C. Point number one is found against the prosecution. 17. I see no reason to interfere with the above finding of the trial court. The trial court after appreciating the evidence and after watching the demeanour of the witnesses, came to a conclusion that the accused is not guilty. Even if **CRL.A.No.58 OF 2004** **14** another view is possible, this Court cannot interfere with the acquittal order in an appeal against the acquittal. Considering the entire facts and circumstance, according to me, there is nothing to interfere with the acquittal order. Therefore, this Criminal Appeal is dismissed, confirming the judgment dated 02.07.2003 in C.C No.404/99, on the file of the Judicial First Class Magistrate-I, Aluva. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** JS