Abdul Salam v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942** **Crl.Rev.Pet.No.2585 OF 2006(C)** **CRA 298/2004 OF ADDITIONAL SESSIONS FAST TRACK COURT-1 (ADHOC), MANJERI** **CC 1000/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAPPANANGADI** ## **REVISION PETITIONER/S:** **ABDUL SALAM, S/O MUHAMMED HAJI KALIYATT KOZHIUSSERI HOUSE, OZHOOR AMSOM, OMACHAPUZHA DESOM.** **BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No.2585 OF 2006(C) ..2.. ## **ORDER** Dated this the 28[th] day of September, 2020 The revision petitioner is the accused in CC No. 1000 of 2003 on the file of the Judicial First Class Magistrate Court, Parappanangadi. The Sub Inspector of Police, Tanur Police Station filed final report before the learned magistrate alleging offences punishable under Sections 447 and 324 r/w Section 34 of the Indian Penal Code (hereinafter referred to as, “IPC”). Originally, there were two accused in the final report. The learned magistrate took cognizance of the offences punishable under Sections 447 and 324 r/w Section 34 of the IPC and numbered the case as CC No.311 of 1996 against the aforesaid two accused. This revision petitioner is the 2[nd] accused in the above case. In respect of the very same offence, there was a counter case as CC No.305 Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [31 x 8] intentionally omitted <==** of 1996 against the _defacto_ complainant in this case. The case and counter case came up for consideration before the trial court. As the revision petitioner/2[nd] accused in this case had absconded, the case against him was split up and it was decided to proceed with the case against the 1[st] accused. Thus, the case and counter case were tried and disposed of together and pronounced judgment one after another on the same day on 01.12.2003, whereby the 1[st] accused and the _defacto_ complainant, who was the accused in CC No. 305 of 2006, were acquitted by the trial court. Subsequently, the 2[nd] accused appeared before the trial court and the case against him was renumbered as CC No. 1000 of 2003 by the trial court. 2. Upon appearance of the accused before the trial court, charge was framed under Sections 447 and 324 r/w Section 34 of the IPC against Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [31 x 8] intentionally omitted <==** the accused. The charge was read over, to which he pleaded not guilty. 3. During the trial of the case, PWs 1 to 6 were examined and marked Exts.P1 to P4 and MO1 series on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure (hereinafter referred to as, “Cr.P.C.”). The accused contended that PW1, who is the _defacto_ complainant, influenced the doctor of a private hospital and obtained a medical certificate to initiate false prosecution against him. He also stated that in respect of the very same occurrence, CC No. 305 of 1996 was initiated against PW1 and he was acquitted in the said case without conducting trial. He denied all the incriminating circumstances appearing in the evidence against him. 4. By the judgment dated 25.05.2004, the trial Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [31 x 8] intentionally omitted <==** court convicted the accused for the offences punishable under Sections 447 and 324 r/w Section 34 of the IPC and sentenced to pay a fine of Rs.250/- for the offence punishable under Section 447 r/w Section 34 of the IPC and in default of payment of fine to undergo simple imprisonment for 20 days; and for the offence punishable under Section 324 of the IPC to undergo simple imprisonment for four months and to pay a fine of Rs.5,000/- and in default of of payment of fine to undergo simple imprisonment for one month more. 5. Challenging the conviction and sentence, the revision petitioner/accused preferred Crl.Appeal No.298 of 2004 before the Additional Sessions Judge, Manjeri and the learned Sessions Judge confirmed the conviction in appeal. However, the sentence was modified. Feeling aggrieved, the revision petitioner/accused has come up in revision. Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [31 x 8] intentionally omitted <==** 6. Heard Sri.P.M.Rafiq, the learned counsel for the revision petitioner, and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State. 7. PW1 is the _defacto_ complainant in this case. He was an accused in CC No. 305 of 1996 before the trial court in respect of an occurrence during the course of the very same transaction between the parties. Ultimately, the case and counter case were tried together and PW1 was acquitted in CC No. 305 of 1996 by the trial court. Similarly, the 1[st] accused also was acquitted in CC No. 311 of 1996 before the trial court. 8. PW5 was the owner in possession of a canal, from which PW1 was drawing water during the relevant time. PW1 stated that PW5 had given consent for drawing water from the canal for irrigating betel plant cultivation owned by him. According to him, regarding this canal, Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [31 x 8] intentionally omitted <==** there was a civil case between the parties before the Munsiff Court, Tirur, which was decreed in his favour. During cross-examination, he admitted that there was an appeal pending before the Sub Court, challenging the decree and judgment passed by the learned Munsiff. 9. PWs 2 and 3 are two independent witnesses, who supported the version of PW1 that the accused assaulted PW1 in connection with drawing water from the canal on the date of occurrence. PW6, the Head Constable attached to Tanur Police Station, conducted investigation and filed final report. He questioned the doctor and obtained Ext.P3 wound certificate. It is evident from the records that the learned counsel for the accused raised objection in marking the document, which was overruled by the court. As per Ext.P3, the following injuries were sustained to PW1; Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [31 x 8] intentionally omitted <==** “Bruise and scratch marks over (1) Lt. Knee lateral aspect (2) Lt. flank below the costal margin (3) Medial to scapula(4) over the neck (5) Lt. forearm. Lt. forearm swollen and tender. Bruises and nail marks over anterior aspect of neck (6) Swelling Lt. parietal region.” 10.It is clear from the evidence of PW1 that a civil case is pending between the parties in respect of a canal on the date of occurrence. PW1 further admitted that although the learned Munsiff decreed the suit, the accused preferred an appeal before the Sub Court and it was pending consideration on the date of occurrence. Evidently, this is a case of disputed possession. When there is a case on disputed possession, an offence under Section 447 of the IPC is not attracted. Further, a civil case also was pending between the parties on the date of occurrence. 11.One of the allegations levelled against the accused is that the accused assaulted PW1 and inflicted injuries on him. Ext.P3 wound Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [31 x 8] intentionally omitted <==** certificate is self explanatory in this regard. However, the doctor, who had examined PW1, was not examined before the trial court despite serious objections by the learned counsel for the revision petitioner. Relying on a decision of this Court in **Paulose** v. **State of Kerala** [MANU/KE/0462/1995], the learned counsel for the revision petitioner contends that Ext.P3 is not proved in terms of the Evidence Act or in terms of Section 294 of the Cr.P.C. It is well settled law that the medical certificate issued by a medical practitioner is only an opinion evidence and unless and until the medical practitioner is examined before the court and proved the contents therein, it cannot be acted upon. In the case on hand, formal proof of Ext.P3 document has not been discharged by the prosecution. 12.The occurrence in this case was on 05.12.1995. Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [37 x 8] intentionally omitted <==** The 1[st] accused was acquitted on 01.12.2003. PW1 was also acquitted in CC No. 305 of 1996 on 01.12.2003. It is not logical to remand the case for examination of the doctor after a lapse of 20 years. 13.Since the offence under Section 324 of the IPC is not proved, the offence under Section 447 is not attracted. There is nothing on evidence to indicate that the accused entered into the property of PW1 with an intent to commit an offence or to intimidate, insult or annoy him as defined under Section 441 of the IPC. Hence, Section 447 of the IPC is also not proved. Both the trial court as well as the appellate court erroneously appreciated the evidence on record and wrongly convicted the accused for the offences punishable under Sections 447 and 324 of the IPC. Hence, the conviction and sentence imposed by the trial court as confirmed by the appellate court are Crl.Rev.Pet.No.2585 OF 2006(C) **==> picture [37 x 8] intentionally omitted <==** liable to be set aside. In the result, the revision petition is allowed. The conviction and sentence imposed by the trial court as confirmed and modified by the appellate court are set aside. The revision petitioner/accused is found not guilty of the offences punishable under Sections 447 and 324 of the IPC and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any amount is deposited during the pendency of this revision petition as directed by this Court before the trial court, the same shall be refunded to the revision petitioner/accused in accordance with law. Pending applications, if any, stand disposed of. ## **Sd/-** ## **N.ANIL KUMAR** ## **JUDGE** Bka/28.09.2020