M.V. Rajeev v. N. Krishnankutty and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 7TH DAY OF AUGUST 2012/16TH SRAVANA 1934** **CRL.A.No. 1797 of 2009 ( )** **--------------------------** **(AGAINST THE JUDGMENT IN CC.865/2001 of J.M.F.C., PERUMBAVOOR, DTD.27.7.2006)** ## **APPELLANT(S)/COMPLAINANT:** **------------------------** **M.V.RAJEEV, S/O.VELUKUTTAN, MADAPPILLY HOUSE, OKKALKARA, CHELAMATTAM VILLAGE PERUMBAVOOR.** **BY ADV. SRI.ANIL K.MOHAMMED** **RESPONDENT(S)/ACCUSED AND STATE:** **--------------------------------** **1. N.KRISHNANKUTTY, S.I. OF POLICE, PERUMBAVOOR (RESIDING AT 'PANJAJANYAM', POIKATTUSSERY (VIA), CHENGAMANAD P.O., ALUVA).** **2. STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SRI.K.RAMAKUMAR (SR.) FOR R1 BY ADV. SRI.T.RAMPRASAD UNNI BY ADV. SMT.SMITHA GEORGE BY ADV. SMT.LALIZA T.Y., PUBLIC PROSECUTOR FOR R2** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.1797 of 2009 ------------------------------Dated this the 7[th] day of August, 2012.** ## **J U D G M E N T** The appellant is the complainant in C.C.No.865 of 2001 as he is aggrieved by the judgment dated 27.7.2006 of the court of Judicial First Class Magistrate-Perumbavoor in the above case, since the learned Magistrate acquitted the sole accused under section 248(1) of Cr.P.C. who faced the prosecution for the offence punishable under section 342, 323, 324 and 325 of IPC. 2. The case of the complainant, who is examined as PW1, is that on 12.1.2000 at about 5.30 a.m., the accused who was the then Sub Inspector of police, Perumbavoor police station and seven police men came to the residence of the complainant and trespassed into the bed room of the complainant searching for him and thereafter he was taken into the police jeep stating that there was a case against 2 ## **Crl.A.No.1797 of 2009** the complainant. According to the complainant, though he asked to disclose the details of the case, the details were not furnished to him. It is also the case of the complainant that, thereafter the accused and other policemen were proceeded to the houses of Pws.2 and 3 and they were also forcibly taken to the jeep and all of them brought to the police station. According to the complainant, Pws.1 to 3 were taken to the office room of the accused where the complainant was shown a notice and enquired him whether he was the author of the same. It is the further case of the complainant that when he denied the paternity of that notice, he was brutally tortured and Pws.2 and 3 were also manhandled. 3. Whereas the case of the accused is that, Pws.1 to 3 were the accused in crime no.26/2000 and they were arrested in connection with the above crime and they were released on bail by 9 o'clock on 12.1.2000 and the accused denied all other allegation of torturing and manhandling. 3 ## **Crl.A.No.1797 of 2009** 4. According to PW1, though he had preferred a complaint in the court on 18.1.2000, the same was transmitted to the Circle Inspector of police, Perumbavoor under section 156(3) of Cr.P.C. who in turn registered crime no.42/2000 in the Perumbavoor police station but by report dated 29.3.2000, the police had referred the above crime. Therefore, the complainant had preferred the present complaint as a protest against the dropping of the case by the police and thus the present protest complaint was filed on 5.4.2000. 5. When the accused entered appearance, Pws.1 to 3 were examined under section 244 of Cr.P.C. and Exts.P1 to P4 series were marked and after hearing the complainant as well as the accused, a formal charge was framed against the accused for the offences punishable under section 323, 324, 325 and 344 of IPC and the accused pleaded not guilty when the said charge was read over and explained to him. Thereafter, Pws.1 and 2 were recalled and subjected to 4 ## **Crl.A.No.1797 of 2009** cross examination, and in addition to Pws.1 to 3, Pws.4 to 8 were also examined and Exts.P5 to P10 were also marked. After the 313 proceedings, during the defence evidence, the accused himself was got examined as DW1 and marked Exts.D1 to D4. The trial court on the basis of the rival contentions and the evidence and materials on record formulated four points for its consideration. The first point considered was, whether the accused wrongfully restrained the complainant and Pws.1 and 2 as alleged, and the second point is whether the accused voluntarily caused hurt to the complainant and Pws.1 and 2 with dangerous weapons as alleged, and the third point is whether the accused voluntarily caused grievous hurt to the complainant as alleged. After due consideration of the evidence and materials on record, the learned Magistrate has came into a conclusion that, the complainant has failed to prove the allegation against the accused beyond reasonable doubt and thus found that the accused is not guilty for the offence 5 ## **Crl.A.No.1797 of 2009** charged against him and accordingly he is acquitted under section 248(1) of Cr.P.C. It is the above findings and order of acquittal challenged in this appeal. 6. I have heard Sri. Anil K.Muhamed learned counsel for the appellant and the learned counsel for the first respondent/accused, and I have also perused the judgment of the trial court. 7. The learned counsel for the appellant vehemently submitted that, the evidence of Pws.1 to 3 positively proves the allegation against the accused and it is practically impossible to get independent evidence in a case of custodial torture and therefore the learned Magistrate is wrong in holding that the complainant was failed to produce the independent evidence. It is also the submission of the learned counsel that, after the incident and when Pws.1 to 3 were bailed out from the police station, they got admitted in the Taluk Head Quarters Hospital at Perumbavoor as evident by the refer slips attached to Exts.P5 to P7 with 6 ## **Crl.A.No.1797 of 2009** respect to Pws.1 to 3 respectively. But the learned Magistrate has refused to believe the case of Pws.1 to 3 that they were admitted firstly in the Taluk Head Quarters Hospital at Perumbavoor and the above finding of the court below is factually incorrect. It is also the submission of the learned counsel that the evidence of Pws.1 to 3 and other prosecution witnesses are supported by the documents produced by the prosecution such as Exts.P1, P3, P4, P5 to P7, P8 and P9, which would show that the complainant and Pws.2 and 3 were sustained injuries in the police station from the accused. But the learned Magistrate had over looked the above materials and came into an erroneous conclusion that the prosecution has failed to prove its allegation against the accused. 8. On the other hand, learned counsel for the respondent/accused submitted that the learned Magistrate, in arriving on his own conclusion, had assigned several reasons on the basis of the evidence and materials on 7 ## **Crl.A.No.1797 of 2009** record and therefore it cannot be said that the findings of the court below are perverse or illegal. Therefore, no interference is warranted with respect to the acquittal recorded in favour of the respondent/accused. 9. I have carefully considered the rival contentions of the counsel for the appellant and the respondent and the findings of the court below which is supported by the evidence and materials referred to in the impugned judgment. Thus, the question to be considered is whether the appellant has succeeded in making out a prima facie case so as to entertain this appeal any further and whether the appellant has succeeded in making out any exceptional or substantial case so as to interfere with the order of acquittal recorded by the trial court in favour of the accused. The crux of the prosecution allegation is that the accused, at the instance of the defacto complainant in crime no.26/2000 of Perumbavoor police station, illegally and forcibly taken Pws.1 to 3 into custody and moved to the 8 ## **Crl.A.No.1797 of 2009** police station and tortured them, as a result of which PW1 sustained several serious injuries and the eardrum of the appellant raptured which resulted in permanent privation of hearing of his left ear. Whereas the case of the defence is that Pws.1 to 3 were arrested on 12.1.2000 as part of the investigation in crime no.26/2000 and they were released on bail by 9 a.m. on the same day itself. The learned Magistrate after evaluation of the evidence on record, particularly on appreciation of the evidence of Pws.1 to 3, has found that though Pws.1 to 3 were released from the police station at about 9 a.m. on 12.1.2000, even according to Pws.1 to 3, they went to the Taluk Head Quarters Hospital at Perumbavoor only at 2.20 p.m. The learned Magistrate has specifically found that in the reference slips attached to Exts.P5 to P7, no time has been mentioned there and therefore from Ext.P1 series and Ext.P5, the exact time at which PW1 was firstly examined by a Medical Officer, cannot be found out. No explanation is 9 ## **Crl.A.No.1797 of 2009** forthcoming as to what happened to Pws.1 to 3, though they were released from the police station on bail at 9 a.m. Though Pws.1 to 3 had claimed that they got admitted in the Taluk Head Quarters Hospital at Perumbavoor and refer slips were attached to Exts.P5 to P7, no doctor from the Taluk Head Quarters Hospital was examined to prove the contents of the refer slips attached to Exts.P5 to P7. So the case of the complainant, that Pws.1 to 3 were admitted initially in the Taluk Head Quarters Hospital at Perumbavoor, is not proved. In this juncture it is also relevant to note that, according to PW1-the complainant, he was discharged from the Little Flower Hospital, Angamaly on 17.1.2000 and preferred a complaint before the Magistrate on 18.1.2000 and thereafter when the police referred the case, the protest complaint filed on 5.4.2000. In this juncture it is pertinent to note that the case of the complainant is that, he himself and Pws.2 and 3 were arrested from their respective houses at 5 a.m. on 10 ## **Crl.A.No.1797 of 2009** 12.1.2000. But no evidence or materials brought on record to show that any of the relatives of Pws.1 to 3 or their friends had taken any steps or conducted any enquiry about the arrest of Pws.1 to 3. Though PW7- the brother of the complainant had claimed that he went and searched in the police station, there is no convincing or independent evidence in this regard. If the allegation is true that the police had forcibly and illegally arrested Pws.1 to 3, naturally some persons interested on them were likely to conduct an enquiry as to what happened to those persons who were taken by the accused in their custody and to take legal steps, if the arrest was illegal and arbitrary. But in the present case, there is no whisper regarding this aspect. It is also relevant to note that even if the case of the complainant is admitted as true for the time being, Pws.2 and 3 have no much grievance or injury so as to prevent them from filing any complaint or taking steps against the illegal arrest of Pws.1 to 3 and against the so called torture 11 ## **Crl.A.No.1797 of 2009** they also have not taken any steps and to redress the grievance if any. 10. The learned Magistrate has refused to believe the version of Pws.1 to 3 and PW4 - the wife of PW1 and PW7, since all these witnesses had played ignorance and denied the factum of involvement of Pws.1 to 3 in crime no.26/2000 of Perumbavoor police station. The learned Magistrate has elaborately considered the evidence of these witnesses with respect to the above facts and found that they are telling lie before the court. Whereas the defence evidence, particularly Exts.D2 and D3 would show that Pws.1 to 3 were accused in crime no.26/2000 and the said case was compromised while the same was pending in the same court as C.C.No.1259/2000. But Pws.1 to 3 had spoken against the above documentary evidence. Learned counsel for the appellant submitted that all the witnesses including Pws.1 to 3 had deposed to the effect that, Pws.1 to 3 are not involved in any other crime at the time of their examination 12 ## **Crl.A.No.1797 of 2009** as witnesses in the court. I am unable to sustain the above explanation offered by the counsel for the appellant. No evidence or material is brought to the notice of the learned Magistrate or this Court to the effect that these witnesses were deposing truth to those question and facts, after referring only to the situation at the time of examination of the witnesses but their trend was to deny the factum of involvement of Pws.1 to 3 in the criminal case, though the said facts were within their knowledge. Therefore, I find no reason to doubt the correctness of the observation and finding of the learned Magistrate regarding the reliability of Pws.1 to 3 and other witnesses. Thus, the learned Magistrate by assigning proper reasons refused to believe Pws.1 to 3. 11. It is also relevant to note that as the learned Magistrate has found in the light of the nature of the evidence of Pws.1 to 3 and other witnesses, that they deposed against the facts and the documents connected 13 ## **Crl.A.No.1797 of 2009** with the crime in which Pws.1 to 3 were involved, the learned Magistrate was in loath to act upon the evidence of Pws.1 to 3 regarding the incident and therefore the learned Magistrate was very much in search of independent evidence to find corroboration of the evidence of Pws.1 to 3. Normally, it is impossible or rare to get evidence regarding the custodial torturing. But in the present case, even according to Pws.1 to 3, after the so called incident, they were released on bail by the police themselves when the counsel on behalf of Pws.1 to 3 and sureties approached the police. Therefore, the learned Magistrate observed that even though the sureties for Pws.1 to 3 and their counsel was present in the police station, none of those persons were examined to prove the incident. It was also found by the learned Magistrate that the leaders of SNDP Union were also present in the police station at the time when Pws.1 to 3 were taken out on bail. None of those persons were cited or examined by the complainant. According to 14 ## **Crl.A.No.1797 of 2009** me, the above findings and observation of the court below are absolutely correct and legal. As I indicated earlier, the learned Magistrate was loath in believing Pws.1 to 3 because of their interest in the prosecution and as they deposed before the court against the truth and documents, the court below was in search of independent evidence to corroborate the evidence of Pws.1 to 3. But in the present case, though there were independent evidence available, the complainant had miserably failed to examine those independent persons present in the police station when Pws.1 to 3 were taken on bail. The learned counsel for the appellant submitted that they were not the eye-witnesses to the incident and they reached in the police station subsequently. Even the said submission is taken as true, according to me, the failure on the part of the complainant in examining these witnesses, in effect resulted withhelding the best evidence from the scrutiny of the court. If such persons were examined, they would have deposed about 15 ## **Crl.A.No.1797 of 2009** what they have seen at that time and those facts could have been appreciated by the learned Magistrate to come into a correct conclusion with respect to the allegation in the complaint. So, absolutely there is no cogent and satisfactory evidence to substantiate the allegation of the complainant that Pws.1 to 3 were manhandled or tortured while theywere under the custody of the accused/ respondent. 12. Thus from the above discussion it can be seen that the learned Magistrate after proper evaluation of the materials on record and appreciation of the evidence of Pws.1 to 3 has found that the complainant has miserably failed to prove his allegation against the accused. In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal (2012 (4) Supreme 72)** , the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: 16 **Crl.A.No.1797 of 2009** “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence.” Thus, on an examination of the facts and circumstances involved in the case, especially in the light of the evidence which referred to by the learned Magistrate in the impugned judgment, particularly in the light of the dictum laid down by the Honourable Apex court in the decision cited supra, it can be seen that the appellant has miserably failed to make out any exceptional or substantial reasons to interfere with the findings of the court below and the order of acquittal recorded in favour of the accused. So also, the appellant has failed to convince this Court that the judgment impugned is a perverse one or the learned Magistrate has over looked any material which are in favour of the appellant and against the accused. If that be so, 17 ## **Crl.A.No.1797 of 2009** even if this appeal is entertained any further, I do not find even a remote scope to interfere with the findings of the court below and to reverse the order of acquittal recorded in favour of the accused. Hence the appellant has miserably failed to make out a prima facie case in support of his challenge against the judgment impugned in this appeal. In the result, there is no merit in this appeal and accordingly the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge