K.K. Mohanan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **CRL.A.No.2001 OF 2005** **AGAINST THE JUDGMENT IN CC 788/1998 DATED 17-08-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHANGANACHERRY** ## **APPELLANT/S:** **K.K.MOHANAN, KARIKANIRAVIL HOUSE, KUTHRAPPALLY, KARUKACHAL.** **BY ADV. K.K.MOHANAN(PARTY)** ## **RESPONDENT/S:** - **1 GOPALAN, ASST. SUB INSPECTOR OF POLICE, CHANGANACHERRY POLICE STATION.** - **2 ARAVINDHAKSHAN, HEAD CONSTABLE, CHANGANACHERRY POLICE STATION.** - **3 ANTONY THOMAS POLICE CONSTABLE, CHANGANACHERRY POLICE STATION.** - **4 MAJIAD, ASST. SUB INSPECTOR OF POLICE CHANGANACHERRY POLICE STATION.** - **5 M.J.MATHEW, SUB INSPECTOR OF POLICE CHANGANACHERRY POLICE STATION.** - **6 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** - **R1 BY ADV. SRI.CHRISTUDAS STEPHENSON R1 BY ADV. SRI.P.S.DIVAKARAN R1 BY ADV. SMT.K.R.KRISHNAKUMARI R1 BY ADV. SMT.LEKSHMY RAMANATHAN R6 BY SRI.K.B.UDAYAKUMAR, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2001 OF 2005 2** ## **JUDGMENT** ## **Dated this the 16th day of October 2020** Above appeal is filed against the judgment dated 17.08.2005 in C.C.No.788/98 on the file of the Judicial First Class Magistrate, Changanassery, by which, the respondent Nos.1 to 5 were acquitted. It was a private complaint filed by the appellant alleging offences punishable under Sections 326 and 323 r/w Section 34 IPC. 2. The case of the complainant is as follows: The complainant is a bus driver by profession and is the joint secretary of a trade union known as BMS. On 27-1-98 at 6.45 P.M., when the complainant was standing at the old private bus stand, Changanassery, a quarrel took place between the employees of 2 buses named Marymatha and Lovely. Complainant was attempting to settle the dispute. At that time, A3 who is a police official on duty at the bus stand and A2 who was in civil dress arrived at the place. The complainant along with three others who were ## **CRL.A.No.2001 OF 2005 3** involved in the dispute were taken to the police station. At the police station, the complainant and 3 others were assaulted by the accused, who were police officials attached to Changanassery police station. The complainant sustained grievous hurt and his left ear drum was broken. The accused were acting in furtherance of their common intention. Though complainant filed petition before DYSP Kottayam, no action was taken. On the above grounds, the complainant has alleged the commission of the above mentioned offences by the accused. 3. The learned Magistrate, after recording the sworn statement of one witness, found that there is prima facie case and the accused was taken on trial and cognizance was taken under Sections 326 and 323 r/w Section 34 IPC. 4. To substantiate the case, PW1 to PW6 were examined. Exts.P1 and P2 were marked on the side of the complainant. Two witnesses were examined on the side of the defense. D1 to D8 were marked on the side of the defense. After going through ## **CRL.A.No.2001 OF 2005 4** the evidence and documents, the trial court found that the accused is not guilty and hence the accused were acquitted under Section 248(i) Cr.P.C. Aggrieved by the above judgment, this Crl.Appeal is filed. 5. When this case came up for consideration on 24.09.2020, there was no representation and hence the case was posted for disposal on 30.09.2020. The case again came up for consideration before this Court on 01.10.2020, on which date, this Court passed the following order. _“The counsel who filed this appeal is elevated as Judge of this Court. Therefore, the Registry will issue a notice to the appellant informing that, this Crl.Appeal is posted for final hearing on 16.10.2020. Post on 16.10.2020.”_ 6. But the notice issued to the appellant is returned with an endorsement “not known”. In such circumstances, this appeal has to be heard on merit. Since it is an appeal filed under Section 378 Cr.P.C., and the appeal is already ## **CRL.A.No.2001 OF 2005 5** admitted, the appeal cannot be dismissed for default. Therefore, I decided to peruse the records and decided the matter on merit. 7. Heard learned Public Prosecutor. 8. The point for consideration in this appeal is whether the acquittal order passed by the trial court is sustainable or not. 9. The trial court, after considering the entire evidence and documents, came to the conclusion that the accused is not guilty. The trial court considered and scanned entire evidence and documents involved in the case and came to the conclusion that the accused did not committed the offence. In paragraphs 27 to 36, the trial court considered the points in details, which is extracted hereunder: _“27. In this regard the accused have contended that the complainant did not take step for production of the wound certificate. According to them, if the wound certificate had been produced, it would have revealed the reason that was disclosed by PW1 at the earliest opportunity regarding the cause of the injury. As pointed out by the accused_ **CRL.A.No.2001 OF 2005 6** _Ext.P1 is only a discharge certificate. It is clear that it was issued only at the time of discharge. PW1 was discharged on 2-2-98. It is true that in Ext.P1, the alleged cause of injury has been stated as assault of police. PW4 who issued Ext.P1 admitted that without verifying the case records, he cannot say as to who originally admitted PW1. His evidence as well as Ext.P1 do not indicate that it was PW4 who originally treated PW1. Similarly either the wound certificate or other document which would have been prepared after examining PW1 on the date of admission was not produced in evidence. In his re-examination, PW4 deposed that he issued Ext.P1 on the basis of the case sheet. If that be so the complainant could have taken steps to get the case sheet produced in order to reveal the alleged cause of injury which PW1 disclosed at the time of admission. He had not taken any step in this regard. It is another circumstance which caste a shadow on doubt upon the case of the complainant. 28. The long delay caused in filing the complaint brings in the possibility of false implication. The alleged incident took place on 27-1-98. The complaint was filed on 4-6-98. The_ ## **CRL.A.No.2001 OF 2005 7** _complaint states that though the complainant filed a petition before DYSP Kottayam, no action was initiated. But in the box, PW1 stated during his cross examination, that after the incident, he filed a petition before C.I. of police, Changanassery. According to him, the said petition was a legally filed about 1 week after the incident. Thus, the case in the complaint differs from the case deposed to by PW1 in the box. The long delay caused has not been properly explained in page 11 of his cross examination. PW1 admitted that he was discharged from the medical college on 4-2-98. Even thereafter, long delay was caused in filing the complaint. PW1 admitted that he discussed the matter with his union and even the State Vice President of the union was consulted. It is clear that it was after discussing with his political bosses that PW1 opted to file the above complaint. Learned counsel for the complainant relied upon the decision of the Hon’ble High Court of Kerala in State of Kerala Vs. Padmanabhyapillai [1989(I)KLT Short note 17]to contend that even unexplained delay is not fatal to the prosecution. On the other hand, learned counsel for the accused relied_ ## **CRL.A.No.2001 OF 2005 8** _upon the decision of the Alahabad High Court reported in 1996 CRl.L.J 86 (State of UP Vs Reji Bahadur) to contend that where extreme delay was caused due to the informant obtaining legal advice, the prosecution evidence has to be rejected. Here, Ext.D2 to D7 are documents produced by the accused, to establish that PW1 had been chargesheeted in many cases by the police and due to political reasons, PW1 was inimical towards the police. According to them, out of the said enmity, PW1 chose to implicate the accused in a false case. Ext.D2 is certified copy of FIR in Cr.No.460/99 of Changanassery police station. PW1 is the accused. The offence alleged is under Section 107 Cr.P.C. Ext.D3 is certified copy of FIR in Cr.No.226/97. PW1 is the accused. Ext.D4 is certified copy of final report filed in St.4768/98. PW1 was the first accused. Ext.D5 is certified copy of final report filed in FIR 164/96 of Karukachal police station. The offences alleged are U/s 447, and 427 R/w 34 IPC. PW1 was the first accused. Ext.D6 is certified copy of FIR in Cr.No.66/97 of Karukachal police station. The offences alleged are U/s 447 and 427 R/w 34 IPC. PW1 was the_ ## **CRL.A.No.2001 OF 2005 9** _first accused. Ext.D8 is final report filed in Ext.D7 case. Ext. D2 to D8 show that PW1 had been implicated in some earlier cases by the police. Relying upon the decision of the Hon’ble High Court of Kerala in Kuttappan Vs State of Kerala [1988(I)KLT 606], the complainant contended that merely due to bad antecedents of the victim, his evidence cannot be disbelieved. But, in this case, the evidenciary value of Ext.D2 to Ext.D8 lies in the fact they point out the possibility for false implication. Even if it is held that PW1 was manhandled at the police station, it cannot be certain that all the accused were involved. Due to the long delay caused in filing the complaint, and the strained relationship of PW1 with one police as shown by Ext.D2 to Ext.D8, there is every possibility of false implication. 29. In this regard, it is also relevant to note that no motive which might have prompted the accused police officials to manhandle PW1 one after another has been brought. As per the version of PW1 what he had done was only to put an end to the quarrel between the two bus employees. It is not clear as to what would have motivated the accused police_ **CRL.A.No.2001 OF 2005 10** _officials to allegedly manhandle PW1. Relying upon the decision in 1998(I) KLT 606 referred to above, learned counsel for the accused contended that proof of motive is not essential in all cases. But, the evidence of PW1 is to the effect that the accused had the motive to manhandle him. In page No.18 of his deposition, he stated that the accused had previous enmity towards him. He further deposed that A3 is the relative of the defacto complainant in C.C.1275/99 in which he was an accused. Thus, PW1 had referred to a specific motive at least on the part of A3 to manhandle him. But, such a case has not been stated in the complaint. The said case is not supported by any evidence also. I find it difficult to believe that without any motive, all of the accused, would dare to torture PW1 at the police station._ _30. The allegation regarding wrongful restrain is also not supported by any satisfactory evidence. The arrest of PW1 and his detention at the police station was in connection with ST.4768/98. It is not in dispute that on the very same day of arrest, PW1 was released on bail. The evidence adduced do not establish that PW1 was wrongfully restrained at the police_ **CRL.A.No.2001 OF 2005 11** _station._ _31. The learned counsel for the complainant contended that the version of the accused to the effect that PW1 sustained hurt in scuffle and clash between the bus employees cannot be accepted because no case was registered in connection with such an incident. But, it was for the complainant to disclose before the police that he sustained hurt as a result of attack by some other bus employees. Unless and until PW1 had raised such a grievance, there was no occasion for the police to register such a case. On the other hand, what PW1 ventured to do was to allege that he sustained hurt due to torture by the police. Hence, due to the mere fact that no case was registered, the possibility of PW1 sustaining hurt due to the clash between the bus employees cannot be ruled out. 32. After a careful analysis of the evidence adduced, I am of the opinion that the complainant has failed to establish the guilt of the accused beyond reasonable doubt. I am of further opinion that this is a case in which the benefit of doubt has to be extended to the accused. 33. Therefore, I hold that the_ ## **CRL.A.No.2001 OF 2005 12** _complainant has failed to prove that the accused committed the offences alleged._ _34. Points 2 to 4 are answered against the complainant. 35. Point No.5:In the light of my findings on points 2 to 4, I find the accused not guilty U/ss 325, 323 and 341 R/w 34 IPC. Therefore they are acquitted U/s 248(i) Cr.P.C._ _36. The bail bonds of the accused are cancelled and they are set at liberty.”_ 10. I see no reason to interfere with the above finding of fact by the trial court. The trial court considered each and every aspect of the case and came to the conclusion that the accused are entitled to benefit of doubt. This Court is sitting in appeal against the acquittal. Once the court below acquitted an accused, it is now settled that the presumption of innocence of the accused is strengthened. The Apex Court in _**Sampath Babso Kale and another v. State of Maharashtra AER 2019 SC 1852**_ and in _**Chandrappa & Ors Vs. State of Karnataka 2007 4 SC 415**_ **CRL.A.No.2001 OF 2005 13** considered this matter. The relevant portion of the judgment in Sampath’s case (supra) in which chandrappa's (supra) case is also considered, is extracted hereunder: _“7. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This court in the case of Chandrappa & Ors.v. State of Karnataka laid down the following principles:-_ _“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:_ _(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded._ _(2) The Code of Criminal_ _Procedure, 1973 puts no limitation,_ **CRL.A.No.2001 OF 2005 14** _restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law._ _(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion._ _(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured_ ## **CRL.A.No.2001 OF 2005 15** _his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable_ _conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”_ ## 11. Bearing in mind the above principle laid down by the Apex Court, I considered the evidence and documents in this case. I see no reason to interfere with the well considered judgment of the trial court. Therefore, the Crl.Appeal is dismissed, confirming the judgment dated 17.08.2005 in C.C.No.788/98 of Judicial First Class Magistrate Court, Changanassery. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** uu 22.10.2020