Gopalan Ezhuthassan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944** **CRL.REV.PET NO. 260 OF 2005** **SC 185/1998 OF IV ADDITIONAL SESSIONS COURT,ERNAKULAM** ## **REVISION PETITIONER/WITNESS NO.2:** GOPALAN EZHUTHASSAN S/O.AYYAPPAN EZHUTHASSAN, CHITTETHUPARAMBU,, MUTHUVARA, PUZHAKKAL, TRICHUR DISTRICT. BY ADVS.SRI.T.K.VENUGOPALAN SRI.V.DEVAN SRI.SHIBU JOSEPH ## **RESPONDENTS/COMPLAINANT & ACCUSED:** 1 STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, CBI SPE,, COCHIN THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA 2 C.K.JAYAKRISHNAN BABU CHITTATHUPARAMBIL, MOORKANIKKARA,, TRICHUR DISTRICT. 3 J.SIVASANKARA PILLAI AMPAZHAVELI VEEDU KOIKKAL BHAGAM, PERUVELIKKARA, WEST KALLADA,, KOLLAM. 4 J.RAVEENDRAN NAIR,H.NO.24 MUNIRAMAPPA GARDEN, RMV, 2ND STAGE,, GOODENAHALLI ,BANGALORE. Crl.R.P.No.260/2005 -:2:- 5 M.A.KUNJU MOHAMMED @ KUNJUMON S/O.MUHAMMED ALI, III/44, CHITTATTUKARA,, (WEST PARUR BRIDGE, VADAKKEKARA P.O., NORTH PARUR, ERNAKULAM DISTRICT. 6 K.SAKTHIRAJAN @ SAKTHI S/O.KRISHNANKUTTY, NO.7, AMBIK NAGAR,, THURIYALUR, COIMBATORE-34, TAMIL NADU BY ADVS.ANIL K.MUHAMED R.ANIL DELVIN JACOB MATHEWS GEORGE PHILIP PUBLIC PROSECUTOR B.RAMAN PILLAI (SR.) RAJU RADHAKRISHNAN SRI G SUDHEER-PP SR.S. MANU, DSG THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.260/2005 ## -:3:- ## **O R D E R** Dated this the 27[th] day of October, 2022 This criminal revision has been preferred by the victim (the father of the deceased) challenging the judgment of acquittal passed by the IV[th] Additional Sessions Court, Ernakulam (for short, the court below) in SC.No.185/1998 dated 29[th] October, 2005. 2. The respondents 2 to 6 are the accused Nos.1 to 5. They faced trial for the offences punishable u/s 120 B of IPC r/w 302, 307, 436, 460 of IPC and substantive offence u/s 302, 307, 436 and 460 of IPC r/w 34 of IPC. 3. The prosecution case in short is as follows: The 1[st] accused Sri. C.K. Jayakrishnan was working as a sergeant in the Central for Air Borne Systems (CABS), Indian Air Force (IAF), Bangalore during 1990-91. He is the eldest son of Sri. Krishnan Ezhuthassan, Chittathparambil House, Muthuvara Village in Thrissur district. The second accused Sri.T.Sivasankara Pillai was a sergeant and a colleague of the accused No.1 in CABS, IAF, Bangalore. The third accused Sri.J.Raveendran Nair Crl.R.P.No.260/2005 ## -:4:- was Junior Warrant Officer and the fifth accused Sri.K.Sakthirajan was a sergeant in IAF, Banglore during the above period. The fourth accused Sri.M.A.Kunumuhammed @ Kunjumon was a driver attached to Ayyappa Travels, Banglore where car CAZ 2674 of A3 was running as a tourist taxi. The accused Nos. 1 to 3 and 5 were colleagues and close associates. 4. The deceased Dr.Ajithkumar was the eldest son of Sri.Gopalan Ezhuthassan, Chittachparambil House, Muthuvara. This Gopalan Ezhuthassan and the aforesaid Krishnan Ezhuthassan are brothers. They have another brother by name Sankara Narayanan and were residing in adjacent houses in Muthuvara. Gopalan Ezhuthassan had three sons viz. Dr.Ajithkumar, Shajikumar and Prajithkumar. The family of Gopalan Ezhuthassan and Krishnan Ezhuthassan had developed long standing enmity. The rift between the brothers started with the partition of the family property. Krishnan Ezhuthassan who was staying with his father, got a will executed by his father bequeathing his property in his favour which was later objected to by Gopalan Ezhuthassan and Sankara Narayanan. Because of that reason, elder people intervened and partition had to be Crl.R.P.No.260/2005 -:5:- effected ignoring the will document. This was the beginning of the enmity among the brothers more particularly between Krishnan Ezhuthassan and Gopalan Ezhuthassan. 5. The mother of the accused No.1 died of cancer. His sister Geetha had developed signs of mental illness. The accused No.1 and his family members firmly believed that it was due to the black magic/sorcery performed by Gopalan Ezhuthassan and his family that they had to suffer all those miseries. The accused No.1 had a marriage proposal with the sister-in-law of a wing commander in IAF. But, an anonymous letter to the girl's parents spoiled the alliance. He and his family believed that the anonymous letter was sent by Gopalan Ezhuthassan and his family to wreck the marriage. They also believed that the marriage proposals for Geetha also fell through due to Gopalan Ezhuthassan and his family. He and his family were very much jealous of Gopalan Ezhuthassan's family when Ajithkumar, his son became a MBBS doctor. Their enmity and hatred towards Gopalan Ezhuthassan's family grew unabated. 6. On the intervening night between 22.3.1991 and 23.3.1991 Ajithkumar was sleeping in the northern end room and Crl.R.P.No.260/2005 -:6:- Shajikumar in the southern end room of the said dwelling house. Their father Gopalan Ezhuthassan was sleeping in the middle room and mother Smt.Lakashmy Bai and younger brother Prajithkumar were sleeping in the western room of the building. This building was a tiled one having no ceiling or thutt. There were entrances to the middle room from the said three rooms. There was also an outer door to the eastern courtyard from the middle room. On the eastern side of the building, the public road from Muthuvara to Kuttoor lies in north-south direction. 7. At about 3 a.m, while Ajithkumar and Shajikumar were sleeping, the clothes worn by them and the beds and cots on which they were sleeping caught fire simultaneously. They woke up, cried aloud and rushed to the middle room with fire on their body. Hearing their hue and cry, the other inmates of that house woke up. Their father immediately opened the outer door leading to eastern courtyard, through which Ajithkumar and Shajikumar went out and some how or other they managed to extinguish the fire caught on their body. Their father put off the main switch suspecting that the fire broke out due to electric short circuit. Hearing the hue and cry, neighbours rushed there Crl.R.P.No.260/2005 -:7:- and extinguished the fire in the rooms pouring water. Ajithkumar and Shajikumar who sustained burn injuries were taken to Medical College Hospital, Thrissur in an autorickshaw. 8. One Thampiraj, an electrician who came there switched on the main switch to ascertain whether the fire was caught due to electricity short circuit. As all the bulbs got lighted, he confirmed that the fire was not due to electricity short circuit. The persons who assembled there found one wooden stick each inserted into the northern and southern end rooms through the gaps in between the wall and roof from outside with burnt cotton pieces at the tips of those sticks. It was also noticed that fire broke out inside the rooms by means of the lighted cotton pieces tied on the tips of the sticks soaked in fuel, as a result of which the aforesaid persons sleeping inside the rooms sustained burn injuries. While undergoing treatment Ajithkumar died on 5.4.1991. Shajikumar had to suffer grievous hurt. Further unlawful loss was caused to Gopalan Ezhuthassan as the household articles were burnt. 9. As instructed by Gopalan Ezhuthassan, his neighbour and relative Ayyappan went to Peramangalam police station and Crl.R.P.No.260/2005 -:8:- gave First Information Statement to the Sub Inspector there on the same day. On the basis of that statement, Crime No.36/91 of that police station was registered for the offence u/s 436 IPC. On getting information, the Circle Inspector of Police, Kunnamkulam took up investigation of the case on the same day. As directed by him, the Sub Inspector who registered the case went to Medical College Hospital, Thrissur on that day itself and recorded the statement of Shajikumar. Since Ajithkumar was seriously injured and anesthesia was administered to him, his statement could not be recorded on that day. However, the Sub Inspector on 25.3.1991 recorded his statement at the Medical College Hospital. Ajithkumar was taken to Medical Trust Hospital, Ernakulam for better treatment and later he succumbed to his burn injuries at that hospital at 4.30 am on 5.4.1991. 10. Initially the investigation was conducted by the local police. Later on, it was handed over to CBCID, Thrissur and subsequently to CBI as per the direction of this court in O.P.No.3424/1992. On completion of investigation, the CBI filed final report and the case was committed to the court below. 11. The Court below on hearing both sides and perusing Crl.R.P.No.260/2005 ## -:9:- the records, discharged the accused No.4. Charge was framed against the accused Nos. 1 to 3 and 5. The prosecution examined PW1 to PW68 and marked Exts.P1 to P63. On the side of defence, DW1 to DW4 were examined and Exts.D1 to D33 were marked. Exts.C1 and C2 were marked as court exhibits. After full fledged trial, the court below found that the prosecution has failed to establish the case against the accused Nos. 1 to 3 and 5 beyond reasonable doubt and they were acquitted. Challenging the said judgment of acquittal, the victim who was examined as PW2, (the father of the deceased) preferred this revision. 12. There is no direct evidence to the occurrence. The prosecution relied on circumstantial evidence to prove the incident and to fix the culpability on the accused. It is settled that when a case stands entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken Crl.R.P.No.260/2005 -:10:- cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis except that of the guilt of the accused. It is equally settled that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. 13. The court below examined in detail all the circumstances projected by the prosecution on the basis of evidence adduced by it. After such analysis, the court below found that the prosecution has miserably failed to prove the chain of circumstances. There is specific finding that the prosecution failed to prove the criminal conspiracy attributed on the accused that in furtherance of criminal conspiracy and common intention, the accused persons herein committed lurking house trespass by night and intentionally caused death of the deceased Ajithkumar and attempted to murder PW3 by setting fire to the dwelling house. Crl.R.P.No.260/2005 -:11:- 14. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The Apex Court in _**K.Prakashan v. P.K.Surenderan**_ [(2008) 1 SCC 258] has held that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. 15. It is well settled that the revisional jurisdiction under Sections 397 and 401 Cr.P.C was to confer power upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon reappreciation of evidence. In _**Shlok Bhardwaj v. Runika**_ Crl.R.P.No.260/2005 -:12:- _**Bhardwarj and others**_ [(2015) 2 SCC 721], the Apex Court held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence. I have carefully gone through the entire records, evidence, proceedings and judgment of the court below. I find no impropriety or illegality therein warranting interference under the exercise of revisional powers vested with this court. The Crl.R.P fails and it is, accordingly, dismissed. sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **kp**