Muneer A.K. v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** ## **CRA(V).No. 396 of 2013 (D)** **AGAINST THE JUDGMENT IN SC No.27/2011 of ADDLL. DISTRICT AND SESSIONS COURT (ADHOC-III), KASARAGOD, DATED 17-12-2012** **IN CP No.97/2010 of JUDICIAL FIRST CLASS MAGISTRATE-I,KASARAGOD** ## **APPELLANT/DEFACTO COMPLAINANT/PW18:** **MUNEER.A.K., S/O. ABDUL KHADER, BAMBRANA-671321, KASARAGOD DISTRICT.** **BY ADVS.SRI.C.ANILKUMAR (KALLESSERIL) SRI.C.Y.VINOD KUMAR** ## **RESPONDENTS/ACCUSED 1 TO 5 & COMPLAINANT:** - **1 H.RAMESH, AGED 21 YEARS, S/O. H. HAREESH, KALYANI NILAYAM, NEAR TAHLIPADAPPU GROUND, KASABA VILLAGE, KASARAGOD DISTRICT-671121.** - **2 K. SAJITHKUMAR, AGED 19 YEARS, S/O. K. RAGHAVAN, KELUGUDDE HOUSE, AYYAPPA NAGAR, KUDLU VILLAGE KASARAGOD DISTRICT-671124.** - **3 B.K. PAVAN KUMAR @ PAVAN, AGED 26 YEARS, S/O. BALAKRISHNAN, SHASTHA KRIPA, AYYAPPA NAGAR, KELUGUDDE, KUDLU VILLAGE, KASARAGOD DISTRICT-671124.** - **4 SASIDHARA @ SASI, AGED 32 YEARS, S/O. ACHUTHAN, KORUVAYAL HOUSE, KORUVAYAL, KUDLU VILLAGE, KASARAGOD DISTRICT-671124.** - **5 SATHEESH NAIK, AGED 30 YEARS, S/O. RAMAYYA NAIK, BANKARAKKUNNU, NELLIKKUNNU, KASABA VILLAGE, KASARAGOD DISTRICT-671121.** - **6 STATE OF KERALA, (REP. BY CIRCLE INSPECTOR OF POLICE, KASARAGOD POLICE STATION, CR. NO. 817/2009 OF KASARAGOD POLICE STATION,) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. S.U. NAZAR** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON 09.10.2018 DELIVERED THE FOLLOWING:** Crl. Appeal (V) No.396 of 2013 2 ## **JUDGMENT** ## **P. Somarajan, J.** Against the order of acquittal of accused Nos. 1 to 5 in Sessions Case No.27/2011 of the Additional Sessions Court, Kasaragod, dated 17.12.2012, PW18, one of the injured in the alleged incident came up with this appeal. 2. The crime was registered in connection with the allegation of offence punishable under Sections 143, 147, 148, 341, 323, 324, 307 and 302 read with Section 149 IPC. The deceased, one Mohammed Azharuddin, met with a sad death on 15.11.2009 at Karanthakkadu, Adkathbayal Gramam, Kasaragod. 3. The prosecution case is that the accused persons with the intention to do away the victim and with that common object attacked CWs 1 to 4, the followers of Muslim League, with knife and wooden sticks by which the deceased Mohammed Azharuddin received very serious injuries and later on he succumbed to the injuries. PW18 and PW21 also sustained injuries. 4. The post mortem examination report reveals ten external injuries and 6 internal injuries which are as follows: Crl. Appeal (V) No.396 of 2013 3 _“External injuries :_ _(1) Contused abrasion right shoulder._ - _(2) Laceration 1x0.5x0.5cm over right chest 6cm below right nipple muscle deep wound._ _(3) Penetrating laceration 5x2cm size, 3cm lateral to the umbilicus on left side of abdomen._ _(4) Contused abrasions over left hip._ _(5) 2x1 cm lacerated wound to the left of midline of back of neck, 6cm below left ear lobule._ _(6) Penetrating laceration 3x2cm over upper part of right scapula._ _(7) Penetrating laceration 5x2cm size over back of right chest elbow the scapula and 4cm lateral to T7 spine (oblique)._ _(8) Laceration 3x1x3cm at the level of L1-L2 vertebra (transverse)._ _(9) 4x1x4cm vertical lacerated wound, 2cm lateral to the right side of L2 vertebra._ _(10) 1.5x0.5x2cm penetrating laceration 5cm lateral to the left side of L2 vertebra (transverse)._ ## _Internal injuries:_ _(1) One litre of blood present in the right pleural cavity._ _(2) 2x1cm laceration over inferior surface of right lobe of liver._ _(3) 5x2cm laceration of upper lobe of right lung._ _(4) Laceration of upper pole of right kidney._ _(5) Perinephric haematoma present. Serosal laceration_ _over splenic flexure of colon. Minimal blood in the_ Crl. Appeal (V) No.396 of 2013 4 _parachrolic area on the left side of peritoneal cavity._ _(6) Injury to spinal cord at the level of L1-L2 vertebrae.”_ 5. Exhibits P7 and P8 are the two wound certificates of PW18 and PW21, Muneer and Sainuddin. The injuries noted therein are as follows: _“Exhibit P7 - (1) A lacerated wound on the left scapular region 3x1x1cm. (2) Contusion on the back with abrasions._ _Exhibit P8 - (1) A cut wound on the right supra spinacular region of scapula of back 3x1x1cm. (2) A cut wound on the low back 4x1x1cm. (3) A cut wound on the left elbow 1x1/2x1/2cm.”_ The cause and the history of injuries is stated to be “alleged assault with knife and sticks at Karanthakkadu, Kasargod, by a group of people” in both Exhibits P7 and P8 wound certificates. 6. The learned Sessions Judge acquitted all the accused mainly on the reason that there is no consistent case with respect to the place of occurrence, the way in which the incident happened and the nature of weapon used and that there is no proper identification of the accused persons. The oral evidence tendered by the eye witnesses cannot be relied on as there are Crl. Appeal (V) No.396 of 2013 5 inconsistencies writ large on its face. It was also found that the identification made by PW18 and PW21 regarding accused Nos. 2 and 5 cannot be relied on. The medical evidence adduced did not support the main substratum of the prosecution case. Aggrieved by the order of acquittal, one of the injured, PW18, came up with this appeal. 7. The eye witnesses examined by the prosecution are PW18, PW21 and PW22. PW18 is the first informant. He is also an injured in the alleged incident and hence his oral testimony lies on a higher pedestal than an ordinary witness as there is a guarantee for his presence in the place of occurrence at the time of alleged incident. The incident happened on 15.11.2009. Immediately after the incident, he was removed to the hospital by nearby officials of the fire force. The oral evidence of PW18 was rejected mainly on the reason that there are inconsistencies in the FIS given by him and the version given at the time of his examination as a witness to the prosecution. Test Identification Parade was conducted and accused Nos.2 and 5 alone were identified by PW18. The main inconsistency brought out is that he had given an entirely different version against the FIS. The FIS is Crl. Appeal (V) No.396 of 2013 6 so specific regarding the participation of about ten assailants, but PW18 disowned the same stating that there were only five assailants. He had also admitted that what he had given at the time of FIS is not the true version. Further, another inconsistency was also brought out. In the FIS, the weapon used by the assailants is stated to be wooden reapers and knives. No such wooden reapers were recovered either from the place of occurrence or otherwise in connection with the alleged incident. During his examination, he had given a different version stating the user of wooden stick instead of wooden reapers. Further, the case advanced in the FIS that after receiving injury he ran away from the place of occurrence and fell unconscious on the road lying in front of the fire force station had been given up stating that after receiving injury he went to the fire force station and informed the alleged incident to the fire force officials. The case that he became unconscious and fell on the road had been given up while in the box. There is no consistent case regarding the place of incident. The place of occurrence stated in the FIS being the Traffic Circle, NH Road, Karanthakkadu had been given up setting an entirely different place, the road in front of Crl. Appeal (V) No.396 of 2013 7 Karanthakkadu Bus Stop and fire station and even according to him there is a distance of 50 meters between the bus stop and the fire station. The petrol pump and the fire station are situated about 200 meters on the northern side of NH Road Circle at Karanthakkadu. Besides the inconsistencies writ large on its face, material omissions were also brought out. 8. Inconsistent versions were given by PW18 while in the box. At first he advanced a case that he did not see the destruction caused to the name board and the flags of the other political party. Later on he admitted that he had seen the destruction caused to the name board and the flags of rival parties. So many other inconsistencies were also brought out during his examination. In the commotion, injuries were sustained to the Superintendent of Police, Circle Inspector of Police and several other police officials and it was admitted by PW18. The employment of teargas by the police was also admitted. The inconsistencies brought out, in the said circumstance, looms large and it is too dangerous, to rely on the oral evidence of PW18. Further, the medical evidence adduced through PW9 also stand against the prosecution case. During Crl. Appeal (V) No.396 of 2013 8 cross examination it was deposed by PW9, the Doctor who issued Exhibits P7 and P8 wound certificates, regarding the injuries sustained by PW18 and PW21, that none of the injuries noted in Exhibit P8 could be caused by an assault by a blunt weapon like wooden stick shown to him. Further, he deposed that the injuries noted in Exhibit P7 can be caused by a fall on a rough and hard surface and on a sharp object. The genesis of the incident is so doubtful as it had happened in the very same vicinity wherein a commotion took place in connection with the convention of Muslim League wherein thousands of workers assembled, a violent mob attacked nearby Bhajana Mandiram and engaged in destruction of flags and name boards of rival parties which has resulted in a commotion and interference of police resulting injuries to police officials including senior police officials. Even at the time of giving FIS, PW18 had disclosed that his associates who are injured ran away from the place in various directions. 9. In the FIS there is a specific statement by PW18 that the persons who were associated with him had also received injuries and after receiving injuries they went away from the place of occurrence to various directions. No investigation was conducted Crl. Appeal (V) No.396 of 2013 9 with respect to the other persons who were the associates of PW18. Even according to PW18, they ran away to various directions from the place of occurrence which would sufficiently show that the number of persons is not limited to one or two persons. This would show that at the time of alleged incident PW18 was in the company of several other persons and not limited to the injured PW21 and the deceased. A sudden group fight between PW18 and his associates with a rival group or with the police officials, in the said circumstance, cannot be ruled out. PW18 even did not mention anything with respect to the presence of his associates or the injuries sustained by them or the fact that they ran away from the place of occurrence to various directions. No such case was advanced at the time of his examination as PW18. 10. The FIS was given only on the next day of the alleged incident which would _prima facie_ show that it was recorded only on a highly belated stage. No FIR was registered though the incident had happened at 6.45 p.m. on 15.11.2009 till 9.00 a.m. on 16.11.2009. It was seen received by the concerned Magistrate by 2.30 p.m on 16.11.2009. The long delay in giving the First Crl. Appeal (V) No.396 of 2013 10 Information Statement would be an indication of chances of embellishment which is otherwise well evident from the inconsistencies brought out at the time of examination of the first informant, PW18, besides the material omissions. 11. The next eye witness examined is PW21 who had identified only one accused during the Test Identification Parade which also stand against the case advanced by PW18. He did not have any case of user of wooden reapers in the commission of offence by the assailants. Though he claims to be an injured in the same incident, he had given different versions on all material aspects which were marked as Exhibits D1 to D7 contradictions with respect to the genesis of the alleged incident, the manner in which the incident was proceeded with and the way in which they had sustained injuries. 12. The other eye witness examined by the prosecution, PW22, admittedly have no prior acquaintance with any of the accused. Though the Test Identification Parade was conducted, he is not a participant and hence his identification cannot be accepted. Further, during cross examination he had given entirely different versions and Exhibit D8 to D11 material contradictions Crl. Appeal (V) No.396 of 2013 11 were marked. 13. One of the material documents withheld by the prosecution was also brought to the notice of this Court. PW1 is the person who attended the injured at first and removed them to the hospital. According to him, he had recorded the entire aspects as revealed by the injured (presumably by PW18) in the diary kept in the fire force station and a copy of the same was handed over to the Investigating Officer. He had deposed that the entire aspect was recorded in the general diary kept in the Fire Station and extract of the general diary was given to the Sub Inspector of Police in connection with the investigation, but that document was not produced by the prosecution for the reason best known to them. The non production of the above said material document also causes a serious doubt as to the genuineness of the prosecution case. 14. It is now settled that it is not proper to reverse the order of acquittal by the Appellate Court unless there is substantial and compelling reasons warranting interference. The existence of another probability is not a ground for reversing the order of acquittal by the Appellate Court. This Court had an Crl. Appeal (V) No.396 of 2013 12 occasion to consider the jurisdictional limits of Appellate Court against an order of acquittal in Crl. Appeal No.1477/2012, dated 18.09.2018, wherein it was observed that a right was conferred on the accused by giving a definite value to the judgment of acquittal by the incorporation of sub section (3) of Section 378 Cr.P.C. for preferring an appeal against an order of acquittal by referring the decisions reported in **Sheo Swarup v. King Emperor** [1934 SCC Online PC 42], **Sanwat Singh v. State of Rajasthan** [AIR 1961 SC 715], **Govindaraju v. State** [(2012) 4 SCC 722], **Kali Ram v. State of Himachal Pradesh** [(1973) 2 SCC 808 : AIR 1973 SC 2773], **State of Rajasthan v. Raja Ram** [(2003) 8 SCC 180 : AIR 2003 SC 360], **Chandrappa & Ors. v. State of Karnataka** [(2007) 4 SCC 415 : AIR 2007 SC (Supp) 111], **A. Shankar v. State of Karnataka** [AIR 2011 SCC 2302], **Upendra Pradhan v. State of Orissa** [(2015) 11 SCC 124 : AIR 2015 SC (Supp) 1265], **Golbar Hussain & Ors. v. State of Assam and Anr.,** [(2015) 11 SCC 242 : 2015 AIR SCW 3248] and **Harbeer Singh v. Sheeshpal and others** [AIR 2016 SCC 4958]. Crl. Appeal (V) No.396 of 2013 13 15. In the instant case, the oral evidence tendered by one of the injured witnesses, PW18, was not relied on by the Lower Court due to material inconsistencies. The oral evidence of PW21 and PW22, the other two eye witnesses, are full of contradictions on material aspects and hence cannot be relied on. PW22 was not participated in the Test Identification Parade. No other satisfactory evidence was adduced to bring home the guilt of accused persons and as such we are not in a position to interfere with the finding of the Lower Court and the order of acquittal. Hence, appeal lacks in merits, deserves only dismissal and we do so. In the result, Crl. Appeal is dismissed. **Sd/-** **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **P.SOMARAJAN JUDGE** DMR/-