JITHESH KUMAR v. THE STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 3[RD] DAY OF JANUARY 2024 / 13TH POUSHA, 1945 CR.APPEAL (VICTIM) NO. 902 OF 2018 AGAINST THE JUDGMENT DATED 16.06.2016 IN CRA 194/2014 OF THE SESSIONS COURT, PALAKKAD AND THE JUDGMENT DATED 17.05.2014 IN CC 236/2007 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, CHITTUR CRIME NO.56/2007 OF CHITTUR POLICE STATION, PALAKKAD - APPELLANT/DE FACTO COMPLAINANT:** **JITHESH KUMAR AGED 36 YEARS S/O. LATE SUKUMARAN, ARIYAMPALLAM, CHITTUR, PALAKKAD DISTRICT, PIN - 678 101.** **BY ADVS. SUNIL NAIR PALAKKAT K.N.ABHILASH** ## **RESPONDENTS/STATE & ACCUSED:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682 031.**| |**2**|**RADHAKRISHNAN,**| ||**AGED 58 YEARS**| ||**S/O.LATE SUKUMARAN, KAVARAMEDU,**| ||**CHITTUR TALUK, PALAKKAD DISTRICT,PIN-678101.**| |**3**|**VIJAYAKUMAR,**| ||**AGED 49 YEARS**| ||**S/O.LATE SUKUMARAN,KAVARAMEDU,**| ||**CHITTUR TALUK, PALAKKAD DISTRICT,PIN-678101.**| 2 Cr.Appeal (Victim) No.902 of 2018 **R1 BY SMT SEENA C.- PUBLIC PROSECUTOR R2 & R3 BY SRI.S.RAJEEV R2 & R3 BY SRI.K.K.DHEERENDRAKRISHNAN R2 & R3 BY SRI.V.VINAY R2 & R3 BY SRI.D.FEROZE R2 & R3 BY SRI.K.ANAND** **THIS CRL.APPEAL BY DEFACTO COMPLAINANT/VICTIM HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Cr.Appeal (Victim) No.902 of 2018 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal (Victim) No.902 of 2018 ----------------------------------------------------------Dated this the 3[rd] day of January, 2024** ## **JUDGMENT** The appellant is the victim of the offence. He preferred this appeal under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (Code). He challenges the legality and correctness of the judgment dated 16.06.2016 in Criminal Appeal No.194 of 2014 of the Sessions Court, Palakkad. 2. Heard the learned counsel for the appellant, the learned Public Prosecutor and the learned counsel for respondent Nos.2 and 3. 3. C.C.No.236 of 2007 before the Judicial Magistrate of the First Class, Chittur was instituted on the final report filed by the Sub Inspector of Police, Chittur Police Station. The offences alleged were punishable under Section 324 read with Section 34 of the Indian Penal Code, 1860 (IPC). 4. The allegations were that respondents Nos.1 and 2, in furtherance of their common intention trespassed into the 4 Cr.Appeal (Victim) No.902 of 2018 house of the appellant, where he was residing along with his mother and picked up a quarrel in connection with cutting of a tree and as its sequel, respondent Nos.2 and 3 pushed down the mother of the appellant and assaulted the appellant, who tried to intervene. The 2[nd] respondent slapped on the face of the appellant/victim and the 3[rd] respondent hit at his right temple using a wooden stick. 5. The trial court tried respondent Nos.2 and 3 on the charge for the offences under Section 324 read with Section 34 of the IPC. After appreciating the evidence, which comprises oral testimony of PWs.1 to 9 and Exts.P1 to P5, found both of them guilty of the offence under Section 323 read with Section 34 of the IPC. Although, there was an allegation that the 3[rd] respondent inflicted an injury to the appellant using MO1 stick, which was identified by him during the trial, the trial court did not believe his evidence in that regard. Therefore, respondent Nos.2 and 3 were found not guilty of the offence under Section 323 of the IPC. The findings were that following the quarrel between the appellant 5 Cr.Appeal (Victim) No.902 of 2018 and respondent Nos.2 and 3 in relation to claim of right over a tree in their family property, respondent Nos.2 and 3 assaulted the appellant causing him bodily injuries. 6. In the appeal, respondent Nos.2 and 3 assailed the findings of the trial court on the ground that evidence of PWs.1 and 2 could not be believed. Their evidence is unsupported by any independent evidence and therefore their interested testimonies could not be believed. The Appellate Court after re-appreciation of the evidence accepted the said contention. The Appellate Court noticed that the evidence of PW2, the mother, could not be believed fully; since it was evident from the deposition itself that she was in inimical terms with respondent Nos.2 and 3. Ext.P2 is the wound certificate. No visible injury was noticed by PW4 at the time of examination of the appellant. He approached PW4 with the allegation that he was assaulted using a wooden stick. Finding that no corresponding injury was noted on the body of PW1, the appellant, the Appellate Court found that oral evidence of PWs.1 and 2 did not inspire 6 Cr.Appeal (Victim) No.902 of 2018 confidence to enter a positive finding. Accordingly, the findings of the trial court were reversed and respondent Nos.2 and 3 were acquitted. 7. The learned counsel for the appellant would submit that when PW1 approached the Doctor on the same day with the allegation that he was assaulted by his brothers, who are respondents No.2 and 3 and PW4-doctor noticed bodily injuries on the person of PW1 and noted the same in Ext.P2 certificate that render sufficient corroboration to the oral testimony of PW1 in court. Further, the learned counsel would submit that the evidence of PW2, the mother, shall be believed for, unless true, never a mother would depose in court against her sons. In answer to the said submissions, the learned counsel for respondent Nos.2 and 3 submitted that the very nature of the evidence tendered through PWs.1 and 2, who are interested and partisan witnesses and medical evidence it obviates a finding that the case of the prosecution is false. It is pointed out that respondents No.2 and 3 had also bodily infirmities indicating occurrence of an altercation and 7 Cr.Appeal (Victim) No.902 of 2018 tussle between the parties, and discarding possibility of a voluntary attack on the appellant. It is further pointed out that the admission of PW1 that there occurred a push and pull in the nature of hustle following the altercation substantiated the defense case. 8. The incident occurred inside the house of PW1, the appellant. PW2 is also a resident in that house. So, _prima facie_ it may appear that respondent Nos.2 and 3 voluntarily had attacked PW1. The evidence on record would show that the incident commenced with an altercation and that was followed by the alleged assault. Whether respondent Nos.2 and 3 were the aggressors or it was PW1 who triggered the violence is a matter to be ascertained from the evidence on record. 9. PW2 although deposed about the case of the prosecution, she deviated from her original version. The prosecution has an allegation that she was pulled down and thereby she sustained bodily infirmities. She denied any such thing during examination in court. As such, the evidence of 8 Cr.Appeal (Victim) No.902 of 2018 PW2 cannot be used to corroborate the oral testimony of PW1. 10. As stated, the medical evidence does not tally the oral evidence of PW1. From Ext.P2 it can be seen that PW1 sustained no injury except a linear abrasion on his lower back. The said injury does not correspond to the overt acts asserted by him. Thus, the evidence of PW1 does not get corroboration from any other evidence. 11. PW1 is the younger brother of respondents No.2 and 3. When the evidence of the mother, who claimed to have seen and involved in the incident, does not correspond to the evidence of PW1 and the medical evidence does not go in tandem to his evidence, the findings rendered by the Appellate Court that the evidence of PW1 is not fully reliable cannot be found fault with. On a re-appreciation of the evidence, a different finding cannot be entered into, especially when this is an appeal against acquittal. 12. In an appeal against acquittal, powers of appellate Court are as wide as that of the trial court and it can review, 9 Cr.Appeal (Victim) No.902 of 2018 re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate Court. So long as the view of the trial court can be said to be reasonably formed, regardless of whether the appellate court agrees with the same or not, the verdict of the trial court cannot be interdicted and the appellate court cannot supplant the view of the trial court. (See: **Chandrappa and others v. State of Karnataka,** **[(2007) 4 SCC 415]; Shyam Babu v. State of U.P. [(2012) 8 SCC 651]; Central Bureau of Investigation v. Shyam Bihari and others [(2023) 8 SCC 197].** 13. In this case, a possible view on the evidence of prosecution had been taken by the appellate court. Therefore, on the reason that another view was equally possible, this Court cannot disturb the decision of the appellate court. In the circumstances, I find no reason to interfere with the findings 10 Cr.Appeal (Victim) No.902 of 2018 accorded by the Appellate Court and consequent acquittal of respondents No.2 and 3. 14. The unfortunate incident occurred in front of the mother. The dispute was between brothers in connection to a claim over a tree on their family property. Brothers quarreled with each other in the presence of their mother over such a trivial conflict. The hapless mother also had to be involved in a criminal case, rather dragged in by the sheer misdeeds of her children. The appellant or respondents No.2 and 3 did not bother or get themselves ashamed of doing such an injustice to their mother. Let wisdom prevail over them and they sort out the difference thereby to ensure peace of mind to their mother. With the above observations, I dismiss the appeal confirming the judgment dated 16.06.2016 passed by the Appellate Court. The appeal is dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** smf/dkr