Joseph v. Joy and Raji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 **CRL.A.No. 651 of 2001** ( CC.125/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD) .................... APPELLANT/COMPLAINANT: ---------------------------------- JOSEPH, S/O.KURIAN, VELAMKUNNEL HOUSE, UMMINEZHI, PULAPPATTA, PALAKKAD DISTRICT. BY ADV. SRI.VIJU ABRAHAM RESPONDENTS/ACCUSED: ------------------------------- 1. JOY, S/O.JOSEPH, KAVALATHU HOUSE, UMMINIZHI.P.O., PULAPPATTA. 2. RAJI, S/O.JOSEPH, KAVALATH HOUSE, UMMINIZHI HOUSE, PULAPPATTA. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2008, ALONG WITH CRL.A.NO.910/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------------------Crl.A.Nos. 651 & 910 of 2001 --------------------------------------------Dated this the 30[th] day of October, 2008** ## **J U D G M E N T** Crl.A.No.651 of 2001 is preferred by the complainant challenging the order of acquittal passed by the court below under Section 248(1) of the Code of Criminal Procedure, on a private complaint for prosecution under Sections 341,323,379 read with Section 34 I.P.C., by the judgment dated 6.9.2000 in C.C.No.125 of 1995 of the Judicial First Class Magistrate Court-II, Palakkad. Crl.A.No.910 of 2001 is another appeal which is also preferred by another complainant for the prosecution under Section 323 read with Section 34 I.P.C., challenging the order of the Judicial First Class Magistrate Court-II, Palakkad in C.C.No.318 of 1998 acquitting the accused under Section 255(1) of the Code of Criminal Procedure. 2. Except slight difference with respect to the place of occurrence, the date of occurrence as well as the time of occurrence are same. Both the cases were tried and disposed of by the same court. Under the above circumstances, both the appeals are heard together and for convenience, the same are disposed of by this common judgment. 3. Admittedly in both these cases, the time of occurrence is 8 p.m. and the date of occurrence is 6.10.1994. In Crl.A.No.910 of 2001, the ## **CRL.A.Nos.651 & 910 of 2001** ## **:-2-:** place of occurrence is shown as 'Kolara Padam' paddy field, but In Crl.A.No.651 of 2001, the place of occurrence is shown as 'Puthukkuzhi'. Crl.A.No.651 of 2001 pertains to C.C. No. 125 of 1995 and Crl.A.No.910 of 2001 pertains to C.C.No.318 of 1998. As stated earlier, both the cases were instituted upon private complaints. The facts and circumstances involved in the case and the finding arrived by the court below can be examined separately. ## **Crl.A.No. 651of 2001** The above appeal, as indicated earlier, is preferred challenging the order of acquittal passed by the court below by its judgment dated 6.9.2000 in C.C.No.125 of 1995. According to the averments contained in the complaint, the place of occurrence is at Puthukkuzhi. According to the complainant, the accused two in numbers, who are brothers, restrained the complainant and the first accused had beaten him on his chest and kicked on his abdomen and the second accused held on his neck. It is also the case of the complainant that the first accused had snatched away the bag containing Rs.1200/- from the complainant. According to the complainant, seeing the local people, the accused ran away from the spot. On the basis of the statement given by the complainant, the Kongad Police registered Crime No.166/94 for the offences punishable under Sections 341,323,379 read with Section 34 of ## **CRL.A.Nos.651 & 910 of 2001** ## **:-3-:** I.P.C. According to the complainant, the Police after registration of the crime and investigation, referred the crime as mistake of fact. Thus, aggrieved by the refer report of the Police, he had approached the court below filing the above complaint, and after taking cognizance, the above case was instituted and accused denied all the charges levelled against them. During the trial, Pws.1 to 6 were examined from the side of the complainant and Exts.P1` to P3 were marked. The defence took a total denial of the allegations and contended that the said case was filed only as counter blast to the incident taken place, according to them, at the paddy field on the same day. The defence has examined DW1 and got marked Exts.D2 scene mahazar and Ext.D1 refer notice in Crime No.166 of 1994 at Kongad Police Station. The trial court, after considering the facts and circumstances involved in the case and also the appreciation of evidence, came in to a conclusion that the incident narrated by PW1 in that case might not have happened and found that the accused were not guilty for the offence charged against them and accordingly acquitted them under Section 248(1) of the Cr.P.C. ## **Crl.A.No.910 of 2001** This appeal is filed against the judgment dated 6.9.2000 in C.C.No.318/98 against the order of acquittal passed by the court below under Section 255(1) of Cr.P.C. The allegation in the said complaint is **CRL.A.Nos.651 & 910 of 2001** ## **:-4-:** that the complainant and accused were neighbours and the complainant had got paddy field and in order to protect the same, he had erected fence around the paddy field and on the date of the incident namely on 6.10.1994 at about 8 p.m., he saw the accused destructing the fence erected by the complainant. According to the complainant, he questioned the above act of the accused and the first accused had beaten the complainant with hand and second accused pushed him into the paddy field. According to the complainant, though a statement was given to the Mannarkkad Police on 7.10.1994, no action was taken by them. It is also the case of the complainant that for treating the injury, on that day he met the Doctor. As the Police had not taken any action, he approached the court below by filing Crl.M.P.No.3207 of 1994. The court took cognizance upon the above complaint and instituted C.C.No.318 of 1998 and on appearance of the accused, the particulars of the allegations were read over and explained to them to which they pleaded not guilty which resulted further trial of the case during which Pws.1 to 3 were examined and Ext.P1 wound certificate was marked. After considering the case, the court below acquitted the accused. It is the above acquittal challenged in this appeal. 4. I have heard learned counsel for the appellant as well as the respondents in this appeal. ## **CRL.A.Nos.651 & 910 of 2001** ## **:-5-:** 5. On considering the facts and circumstances involved in the above cases, it appears that on the basis of the statement given by the complainant in C.C.No.125 of 1995 though a crime was registered by the Kongad Police Station, after a detailed investigation, the said crime was referred on the ground of mistake of facts. In C.C.No.318 of 1998 also, though the complainant had approached the Mannarkkad Police Station, no further action was taken by them considering the particular facts and circumstances involved in the case. However, on the basis of the full-fledged trial conducted by the court below in these two cases, the trial court came into the conclusion that the complainants failed to establish the case beyond reasonable doubt in the manner as suggested by them. 6. It is relevant to note that the parties to the above cases are neighbours and there arose a dispute between them and the said dispute dragged into the court. In C.C.No.125/1995, PW2 is the complainant himself and Pws.2 to 4 were cited as independent witnesses to prove the occurrence. After considering the evidence of those witnesses, the court was of opinion that their evidences cannot be accepted as such since they are having interest in the prosecution in favour of the complainant – PW1. In Ext.P3 wound certificate, the name of the offender is not mentioned and PW6 had also stated that the name of the offender was not mentioned. ## **CRL.A.Nos.651 & 910 of 2001** ## **:-6-:** Apart from that, the defence in the case produced Exts.D1 and D2. Exts.D1 and D2 are with respect to Crime No.166/1994 which was registered at the instance of the complainant-PW1. As per Ext.D1, the Police referred that crime. By adducing the documentary evidence such as Ext.D1, the defence has proved that according to the complainant/PW1 before the Police, his version was that the place of occurrence is Maruthankode. On filing the complaint, the place of occurrence is mentioned as Puthukkuzhi. Thus, on the basis of the shabby and unbelievable nature of the evidence adduced by the complainant, the court found that the incident has not taken place as narrated by the complainant/PW1. The above finding of the court below is based upon materials and the evidence on record and there is no reason or ground made out to take a different finding. 7. It is relevant to note that in C.C.No.318 of 1998, the accused were acquitted on the basis of the undue interest shown by the complainant and his interested testimony for canvassing a conviction. When he preferred the complaint, there is no averment in it to the effect that the accused had committed any mischief. But, when he was examined in the court as PW1, he had made substantial improvement and gone to the extent to depose that the accused committed the mischief to the tune of Rs.2000/-. Apart from PW1, the other witness examined was **CRL.A.Nos.651 & 910 of 2001** ## **:-7-:** PW2 who is none other than the mother of the complainant. To prove the incident, there is no other independent witnesses. The evidences of Pws.1 and 2 are suffering from serious contradictions and thus the evidences of Pws.1 and 2 are not free from doubt. The main allegation in that complaint is to the effect that the accused has committed the offence punishable under Section 323,334 read with Section 34 of I.P.C. According to PW3, the Doctor who examined in the case deposed, there was no external injury. It has also come out in evidence that the complainant PW1 approached the court only on the next day of the alleged incident. On the basis of the above shabby evidence, the trial court found that the complainant has miserably failed to establish the guilt of the accused and thus the accused were found not guilty and accordingly acquitted them under Section 255(1) of Cr.P.C. On evaluation of the evidence of prosecution witnesses and the facts and circumstances involved in the case, I find no reason to interfere with the finding and observation arrived on by the court below. The Apex Court in the decision reported in **Ghurey Lal** v. **State of U.P.** [2008(4) KLT SN 17 (C.No.17) SC] enumerated the principles and power of the Appellate Court in interfering with the order of acquittal passed by the trial court, by giving several grounds for the interference of the appellate court with the order of acquittal. The Apex Court had held that the appellate court could ## **CRL.A.Nos.651 & 910 of 2001** ## **:-8-:** interfere only for very substantial and compelling reasons. On examination of the facts and circumstances involved in the above two cases and in the light of the above decision, I find no reason to interfere with the order of acquittal passed by the court below and therefore, both the appeals are devoid of merits and accordingly, they are dismissed. ## **V.K.Mohanan, Judge.** MBS/ ## **CRL.A.Nos.651 & 910 of 2001** ## **:-9-:** ## **V.K.MOHANAN, J.** -------------------------------------------- **CRL.A.Nos.651 & 910 of 2001** ------------------------------------------- ## **J U D G M E N T** DATED:30-10-2008 ## **CRL.A.Nos.651 & 910 of 2001** **:-10-:**