K. Vasu v. Madhavan, Ramachandran, Rajan, Raju, Sahadevan, Gangadhar, Appunni, Kannan, Murughan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938 Crl.Rev.Pet.No.17 of 2006 (B2) ------------------------------- AGAINST THE JUDGMENT IN CRA 164/2002 of I ADDL. SESSIONS COURT, PALAKKAD DATED 07-10-2005 AGAINST THE JUDGMENT IN S.T.NO.2493/1998 of J.M.F.C., ALATHUR DATED 10-05-2002 REVISION PETITIONER/DEFACTO COMPLAINANT (NON-PARTY): ---------------------------------------------------------------------- K. VASU, S/O. LATE KATHU, CHATHAMANGALAM, NENMARA, PALAKKAD DISTRICT. BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.M.V.BIPIN RESPONDENTS/APPELLANTS & RESPONDENT/ACCUSED & COMPLAINANT: ---------------------------------------------------------------- 1. MADHAVAN, S/O. RAMAN, PANDICKAL VEEDU, CHATHAMANGALAM, NENMARA, PALAKKAD. 2. RAMACHANDRAN, S/O. NARAYANAN, MEENICKODE, CHATHAMANGALAM, NENMARA, PALAKKAD. 3. RAJAN, S/O. PANGI, PUTHENPURA VEEDU, CHATHAMANGALAM, NENMARA, PALAKKAD. 4. RAJU, S/O. MANY, KUNNUPARAMBU, CHATHAMANGALAM, NENMARA, PALAKKAD. 5. SAHADEVAN, S/O. CHAMUKUTTY, PUTHENPURAVEEDU, CHATHAMANGALAM, NENMARA, PALAKKAD. 6. GANGADHARAN, S/O. MADHAVAN, PONNICKAL VEEDU, CHATHAMANGALAM, NENMARA, PALAKKAD. (CNTD...........2) ## Crl.Rev.Pet.No.17 of 2006 (B2) **==> picture [26 x 8] intentionally omitted <==** 7. APPUNNI, S/O. RAMAN, CHATHAMANGALAM, NENMARA, PALAKKAD. 8. KANNAN, S/O. CHAMU, CHATHAMANGALAM, NENMARA, PALAKKAD. 9. MURUGHAN, S/O. APPU, CHATHAMANGALAM, NENMARA, PALAKKAD. 10. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 TO 3 & 5 TO 9 BY ADV. SRI.JACOB SEBASTIAN R4 BY ADV. SRI.LEGY ABRAHAM R4 BY ADV. SRI.JOSWIN THAMBI KUNNATH R10 BY PUBLIC PROSECUTOR SRI.P.V.ELIAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.17 Of 2006 --------------------------------- Dated this the 17th day of May, 2016. ## O R D E R The revision petitioner herein is the defacto complainant in Crime No.15/1998 of Nenmara Police Station for offences registered against the accused under Secs.143, 147, 149 & 342 of the Indian Penal Code, which led to S.T.No.2493/1998 on the file of the Judicial First Class Magistrate Court, Alathur. The learned Magistrate, as per judgment dated 10.5.2002 in S.T.No.2493/1998 had found all the accused guilty for the offences under Secs.143 & 342 of the IPC and had accordingly convicted them and sentenced to pay a fine of Rs.2,000/- for the offence under Sec.143 of the IPC and in default to undergo simple imprisonment for one month and a fine of Rs.1,000/- for the offence under Sec.342 of the IPC and in default to undergo simple imprisonment for one month. The accused were found not guilty for the offences under Sec.147 of the IPC. All the accused except accused No.8 had preferred Crl. Appeal No.164/2002 before the Court of Sessions, Palakkad, against the said impugned judgment dated 10.5.2002 of the Judicial First Class Magistrate Court, Alathur, in ::2:: Crl.R.P.No.17 Of 2006 S.T.No.2493/1998. The learned Sessions Court, by the impugned judgment rendered on 7.10.2005 in the said Criminal Appeal had found that there was insufficient evidence to justify the conviction and sentence imposed on the accused and accordingly allowed the Criminal Appeal and the conviction and sentence imposed by the learned Magistrate was set aside and the accused were acquitted. It is aggrieved by the order of acquittal rendered by the Criminal Appellate Court that the defacto complainant has approached this Court by filing the instant Criminal Revision Petition by resort to the remedy conferred under Secs.397 and 401 of the Code of Criminal Procedure. 2. Heard Sri.K.Sajan Varghese, learned counsel appearing for the revision petitioner and Sri.Legy Abraham, learned counsel appearing for the 4th respondent, learned Public Prosecutor appearing for the 10th respondent and Sri.Jacob Sebastian, learned counsel appearing for all the other respondents in the Revision Petition. 3. The main plank of the argument advanced by the learned counsel appearing for the revision petitioner/defacto complainant is that the finding of the lower appellate court that there is insufficient evidence in the matter is perverse and based on no material and that though this Court in exercise of revisional power is not competent to ::3:: Crl.R.P.No.17 Of 2006 convert the order of acquittal to one of conviction, this Court would be well justified in the facts and circumstances of this case to set aside the impugned appellate judgment and to remit the mater to the appellate court for fresh consideration of the appeal based on all relevant facts and circumstances proved in the instant case. Per contra, the learned Advocate appearing on behalf of the respondents/accused would contend that the view taken by the learned Sessions Judge in the Criminal Appeal is a reasonable view in the matter and at best the defacto complainant can only contend that another reasonable view is possible and that the in-depth appreciation of evidence rendered by the lower appellate court cannot in any manner be termed to be perverse or based on no materials and that this Court in exercise of its power is not justified in remitting the matter merely on the ground that another reasonable view is possible in the facts and circumstances of this case. 4. The gist of the prosecution allegations is that the revision petitioner who is the de facto complainant was the poojari of the temple in question at Chathamangalam and that on 10.02.1998, at about 4.30 a.m, the accused persons had formed into an unlawful assembly with a common object of committing crime, had entered into the temple premises and locked PW-1 who was to discharge his duties as poojari in ::4:: Crl.R.P.No.17 Of 2006 the temple and that the de facto complainant was taken out only after the police had intervened in the scene. All the accused faced trial before the Judicial First Class Magistrate's Court, Alathur in S.T.No.2493/1998 for offenses under Section 143, 147, 342 and 149 of IPC. The prosecution examined PW's 1 to 6 on their side and Ext.P1 to P5 documents were also marked. There was no evidence on the side of the defense. 5. Ext.P-1 is the FI statement said to be lodged at about 5:15 a.m. on 9.2.1998 and Ext.P-3 is the FIR said to be registered on 9.2.1998. The main reliance made by the prosecution is on the oral evidence of prosecution witnesses, PWs 1, 2 and 3. PW-1 is the defacto complainant and PW-2 is said to be the independent eye witness who had witnessed the entire incident and PW-3 had seen only the later part of the incident. PW-5 is the Head Constable and PW-6 is the Station House Officer/Sub Inspector of Police, who came to the scene and who had intervened to release PW-1 from the alleged illegal confinement. There appears to be even dispute regarding the actual date of incident as to whether it happened on 9.2.1998 or on 10.2.1998. As per Ext.P-1 FI statement, the incident is said to have happened on 9.2.1998 at 4:30 a.m. and Ext.P-1 FI statement is said to have lodged on the same day ::5:: Crl.R.P.No.17 Of 2006 (i.e., 9.2.1998) in the morning. Ext.P-3 is the FIR said to be registered on 9.2.1998. Whereas in the oral evidence tendered by PW-1 it is stated that the incident had happened on 10.2.1998. The trial court has come to the conclusion that the evidence in the case reveals that the incident was on 9.2.1998. After detailed appreciation of the evidence, the appellate court was convinced based on the evidence on record that there were several disputes between two groups of people relating to the property of the temple in question and that one group belonged to the accused persons whereas PW-1 and some others were actively involved in the other rival group. On this basis, the Sessions Court had come to the considered conclusion that this crucial aspect of the matter would well be considered as the basis for the motive of the accused persons in the commission of the crime and that this could also be equally considered as a reason for the possible false implication of the accused in the above crime. It has also come out in evidence that complaints were pending before the Sub Divisional Magistrate concerned and it has been admitted by PW-6, the investigating officer, that the Sub Divisional Magistrate has issued orders restraining the accused persons and their supporters as well as PW-1 and other persons in the rival group from entering into the temple premises. PW-6 ::6:: Crl.R.P.No.17 Of 2006 has also deposed in evidence that PW-1 (revision petitioner) had no right to be present in the temple premises on the day in question in view of the order of restraint passed by the Sub Divisional Magistrate and that police has registered a crime as against PW-1 and PW-2 for having unauthorisedly entered into the temple premises in violation of the order of restraint passed by the Sub Divisional Magistrate. It has also come out in evidence that though by Ext.P-5 order dated 18.12.1997 the Sub Divisional Magistrate had ordered that the poojari who was performing the poojas in the temple would continue with such ceremonies, the specific order as per Ext.P-4 was rendered by the Sub Divisional Magistrate only on 18.12.1999 whereby PW-1 was specifically permitted to conduct the poojas in the temple. Therefore, Ext.P-4 order specifically permitting PW-1 to perform the poojas in the temple was issued by the Sub Divisional Magistrate only on 18.12.1999 which is much after the incident (9.2.1998 or 10.2.1998 as the case may be). It is in the background of these serious disputes between the rival groups that the Sessions Court appreciated the evidence and held that the evidence on record has to be scanned in the perspective of the crucial fact that serious disputes were pending ::7:: Crl.R.P.No.17 Of 2006 between the rival groups headed by the accused persons on the one hand and PW-1 and his supporters on the other. 6. The appellate court found that there were serious divergences and discrepancies in the version of prosecution witnesses. The specific version of PW1 was that the assailants had suddenly came to the spot and even before he could react, they had locked the door suddenly and he has also asserted that the accused persons did not utter anything. Even regarding the number of persons who had come to the spot, divergent versions are spoken to by PWs-1 to 3. The appellate court noted that according to PW-1 there were only 10 persons whereas according to PW-2 there was about 30 persons. Still further PW-3 has deposed by saying that there were in fact about 10 - 50 persons. The Sessions Court also found that even regarding the factum of actual incident, PW-2 has given version which is substantially divergent from the one projected by PW-1. That according to PW-2, the accused persons came to the spot and made an attempt to lock the door and at that time PW-1 quarrelled with them and it is stated by PW-2 that the accused persons had asked PW-1 as to why he opened the temple and PW-2 had also deposed that when PW-1 went inside the temple they quarrelled with PW-2 whereas as noted earlier as per ::8:: Crl.R.P.No.17 Of 2006 the version given by PW-1, they had locked the door suddenly and that they had not uttered nothing to him, etc. The Sessions Court also noted that there was serious divergence in the very sequence of incidents spoken to by PWs 1 & 2 on such material points. 7. Still further, the lower appellate court found that PW-2 disclosed the names of only two persons to the police. Whereas when he was examined in court, PW-2 deposed the names of several other persons. PW-2 in his oral evidence had deposed that it was A-8 and A- 3 who locked the door and there were several other persons and whereas in cross examination, PW-2 deposed the involvement of not only A-3 but also of one Kesavan. Kesavan is not seen arrayed as an accused either in the FIR or in the Final Report. PW-3 deposed that he came to the spot after hearing the noise and later two persons went to police station and informed about the incident to the police. PW-5 Head Constable and PW-6 Station House Officer who were the police personnel concerned came to the spot and found PW-1 locked inside the room. According to PW-5 and PW-6, PW-1 was released after opening the door. According to PW-5 when the police party had reached the spot, two-three accused were even present in the scene and PW-6 has intimated that several other persons were also at the spot. ::9:: Crl.R.P.No.17 Of 2006 Based on these aspects, the appellate court comes to the conclusion that it is very hard to believe that if the accused persons were actually responsible for the commission of the crime that they would have remained there about an hour, even for the police to come to the scene and register the crime against them, etc. These aspects regarding the appreciation of evidence made by the Sessions Court cannot in any way be blamed as perverse or unreasonable in the facts and circumstances of this case. A version was seen projected as if the lock of the door was broke opened in order to release PW-1. However, the Head ConstablePW5 in his evidence has deposed that the door was opened by PW-6 by using a key but he could not say as to who had given the key to PW-6. Based on this crucial aspect, the appellate court would note that certainly somebody had locked PW-1 inside the room. The person from whom the possession of the key was taken would have given the key to the police party and the crucial conduct on the part of PWs 5 & 6 in not disclosing as to from whom they had obtained the key for opening the door is a serious omission. The Sessions Court has also noted based on the evidence on record that there is an indication based on the materials on record that PW-1 was not expected to be inside the temple premises at the relevant time and that the defence set up by the accused ::10:: Crl.R.P.No.17 Of 2006 was that he was locked inside by somebody on a belief that a stranger had entered inside the temple. Based on the evidence on record, the appellate court held that there is no reliable and proper evidence adduced by the prosecution on the crucial aspect as to who had locked the room and that the omission on the part of PWs-5 & 6 in disclosing before the court as to from which person they had obtained the key is a very serious omission on the part of the prosecution. More importantly, the Sessions Court holds that pendency of the long standing dispute between the rival parties give rise to the court to conclude that there is serious possibility of wrong implication which cannot be ruled out. Based on these aspects, the Sessions Court came to the considered conclusion that the prosecution has not been able to prove beyond reasonable doubt as to the exact manner in which the incident has transpired and as the prosecution is conspicuously silent as to from whom the key of the lock was obtained puts a strong dent on the veracity and believability of the prosecution version projected in this case. It is in appreciation of these crucial aspects of the matter the appellate court holds that there is insufficient evidence to sustain the conviction. Keeping in view the contentions raised by the revision petitioner, it would be pertinent to bear in mind the scope and ambit of ::11:: Crl.R.P.No.17 Of 2006 the revisional jurisdiction conferred on this Court and also to bear in mind the principles regarding the exercise of such revisional powers in respect of a judgment of acquittal. 8. The well known judicial rulings in this regard are in cases as in Pakalapati Narayana Gajapathi Raju V. Bonapalli Peda Appadu reported in 1975 (4) SCC 477, Akalu Ahir v. Ram Deo Rao reported in 1973 (2) SCC 583, Mahendra Pratap Singh V. Sarju Singh reported in AIR 1968 SC 707, K.Chinnasaamy Reddy V. State of Andhra Pradesh reported in AIR 1962 SC 1788, Logendranath Jha v. Polai Lal Biswas reported in AIR 1951 SC 316, etc. In the celebrated ruling in Akalu Ahir v. Ram Deo Rao reported in 1973 (2) SCC 583, the Apex Court has illustrated the following categories of cases which would justify the High Court in interfering with the acquittal in a revision and also further held that those categories are merely illustrative and there could be other cases of similar nature which can also be properly held to be of exceptional nature, where the High Court can justifiably interfere with an order of acquittal. The categories of cases delineated therein are as follows:- “i) where the trial court has no jurisdiction to try the case, but has still admitted the accused ; ii) where the trial court has wrongly shut out the evidence which prosecution is to produce ; iii) where the Appellate Court has wrongly held the evidence which is admitted by the trial court to be inadmissible ; ::12:: Crl.R.P.No.17 Of 2006 - iv) where material evidence has been overlooked either by the trial court or the Appellate Court or the acquittal is based on compounding of the offense which is invalid under the law.” 9. It was also held by the Apex Court in various rulings that the appraisal of evidence by the Criminal Court concerned may not be perfect or free from flaw and the Court of Appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to re-appraise the evidence for itself as if it is acting as a Court of Appeal and then order a re-trial. In the case of Vimal Singh V. Khuman Singh reported in 1998 (7) SCC 223 it was held as follows in ## para 9 thereunder:- “9. Coming to the ambit under Section 401 of the Code, the High Court against the revisional power does not ordinarily interfere with the admission of the acquittal passed by the trial court unless there has been manifest error of law or procedure. Interference in the order of acquittal passed by the trial court is limited only to exceptional cases where it is found that the order under revision suffers from glaring illegality that has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where a material evidence which clinches the issue has been overlooked. These are the instances where the High Court could be justified in interfering with the order of acquittal. Sub Section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus the High Court could not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High court in exercise of its revisional power, can set aside an order of acquittal if it comes during the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal to an order of conviction. The only course left to the High Court in such exceptional cases is to order for re-trial.” ::13:: Crl.R.P.No.17 Of 2006 10. Considering the applicability of the aforementioned rulings, the Apex Court has held in the case Venkateshan V. Rammaiya and another reported in 2013 (14)SCC 207 that the aforequoted rulings would clearly go to show that the revisional jurisdiction of the High Court while examining the order of acquittal is extremely narrow and ought to be exercised only in cases where the trial court had committed a manifest error of law or procedure or had overlooked or ignored relevant and material evidence whereby causing miscarriage in justice. Re-appreciation of evidence is an exercise that the High Court must refrain while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. The aforementioned contentions of the revision petitioner will not in any way disclose a case where the Appellate Court has wrongly shut out evidence which the prosecution has adduced. The instant case also does not involve one in which the Appellate Court has wrongly held the evidence which were admitted by the trial court to be inadmissible. So, the crucial question to be examined is as to whether material and relevant evidence has been overlooked by the Appellate Court in coming to the conclusion that there is insufficient evidence to justify the impugned conviction and sentence in the instant case. On an examination of the contentions of ::14:: Crl.R.P.No.17 Of 2006 the revision petitioner as well as the impugned judgment of the Appellate Court it can be seen that the Appellate Court has not in any manner shut out evidence which the prosecution has relied on nor does the Appellate Court in any manner wrongly held that the evidence which was admitted by the trial court to be inadmissible. 11. Taking into account, the facts and circumstances in the case as well as the evidence on record, the aforementioned view taken by the Appellate Court especially on the serious divergences in the versions of prosecution witnesses, cannot be said to be in any manner perverse or unreasonable. At best, even if the contentions of the revision petitioner are accepted, it will amount to a situation that a more and reasonable view in the matter could be possible. That is not a matter within the narrow compass of the revisional jurisdiction conferred on this Court especially while considering a judgment of acquittal. The Appellate Court has re-appraised the evidence of the trial court in the case in hand and has come to the considered conclusion that it is constrained to disagree with the findings rendered by the trial court. This by itself, is not a ground for this Court to interfere with the impugned Appellate judgment so long as the said judgment is not based on perverse and unreasonable appreciation of the crucial evidence on record. Hence ::15:: Crl.R.P.No.17 Of 2006 this Court has no hesitation to hold that the Appellate Court has not egregiously earned in any manner so as to warrant the invocation of revisional jurisdiction in the facts and circumstances of this case. The approach of the Appellate Court cannot be said to be one wherein material and relevant evidence has been overlooked in this matter. None of the parameters mentioned in the aforementioned rulings of the Apex Court has been fulfilled in the instant case so as to justify the invocation of revisional interference. Accordingly, this Court is constrained to hold that the revision petition is devoid of any merit and it is ordered that the same stands dismissed. ALEXANDER THOMAS, Judge. bkn/AVK