N. GOPALA PILLAI v. GOPAKUMAR & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938** **Crl.Rev.Pet.No. 3090 of 2003 ( )** **--------------------------------AGAINST THE JUDGMENT IN CC 1930/2003 of JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOLLAM DATED 10-11-2003** **REVISION PETITIONER(S)/DEFACTO COMPLAINANT: PW1: -----------------------------------------------N. GOPALA PILLAI, S/O. NARAYANA PILLAI, MANAKKATTU VEEDU, PERUMBUZHA, KUNDARA, KOLLAM.** **BY ADVS.SRI.A.ANTONY SMT.LEELAMMA ANTONY** **RESPONDENT(S):- ACCUSED & STATE:** **-------------------------------1. GOPAKUMAR, S/O. GOPINATHA PILLAI, MANAKKATTU THEKKATHIL PUTHEN VEEDU, MEVARAM, PERUMPUZHA CHERRY, ELAMPALLOOR VILLAGE, KUNDARA, KOLLAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.LEO GEORGE R2 BY PUBLIC PROSECUTOR SMT. M.G. LISHA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.3090 of 2003 ---------------------------------------------Dated this the 29[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the defacto complainant against the judgment in C.C. No.1930/2003 of Judicial First Class Magistrate Court-I, Kollam. The accused was charge sheeted by the learned Magistrate for having committed offence punishable u/s.324 IPC. After trial, the learned Magistrate acquitted the accused. Being aggrieved by that acquittal, the defacto complainant preferred this revision petition. 2. The charge against the accused is that on 8.5.1997 at 10.30 a.m., the accused hit on the left cheek of the defacto complainant with an iron rod, thereby sustained Crl.R.P.No.3090/2003 2 injury and committed the offence. On the basis of information, Kundara Police registered a crime and after completing investigation, Sub Inspector of Police, Kundara laid charge before Judicial First Class Magistrate Court-I, Kollam. During trial, prosecution examined PW1 to PW7 and marked Exts.P1 to P5. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Heard both sides. For ascertaining the correctness, legality and propriety of the finding of the Court below, I have examined the oral and documentary evidence in this case. The revision petitioner was examined as PW1 in the trial Court. His evidence shows that on 8.5.1997 at 10.30 a.m., while he was returning home from the field, the accused came there in a bicycle and hit against his left cheek with an iron piece, as a result, he Crl.R.P.No.3090/2003 3 sustained serious injury. Immediately he was removed to District Hospital, Kollam and treated as inpatient for 12 days, for that he gave Ext.P1 statement to the police. His wife and one Regunathanpillai and Balakrishna pillai rushed to the scene, at that time the accused left the place. PW2 and PW3 supported the evidence of PW1. A close scrutiny of the evidence of PW1 and PW3, it is clear that there is no independent evidence to prove the alleged occurrence. 4. The doctor, who treated PW1, was examined in the trial Court as PW4. The wound certificate was marked as Ext.P4, in which he noticed a contusion 6 x 6 cm on the left side of face 2 cm in front of the ear. There was bleeding from nose. Therefore, it is clear from Ext.P4 that PW1 sustained injury but in cross examination, PW4 admitted that the injury could be possible due to fall upon Crl.R.P.No.3090/2003 4 a projected rough surface by hitting his face. 5. There was delay of 19 days in giving the First Information Statement to the Kundara Police. The explanation offered by the complainant for the delay was not satisfactory. No documentary evidence has been produced by the defacto complainant to show that the delay of 19 days in giving Ext.P1 statement was due to his treatment in the hospital. The principal object of the First information report from the point of view is to set the law in motion. When there is delay in transmitting the information to the police, it is the responsibility of the complainant to explain the delay. Ext.P1 F.I. Statement was recorded by PW6 and Ext.P3 is the FIR. Ext.P1 (a) is the body note. Ext.P4 is the scene mahazar. Ext.P5 is the report. PW7 conducted investigation and laid charge before Court. Crl.R.P.No.3090/2003 5 6. It is settled law that FIR is not substantive evidence and it is not the evidence of the facts about which it is mentioned. Its importance as conveying the earlier information regarding the occurrence cannot be doubted. The delay in lodging the FIR often results in embellishment, which is a creature of afterthought and on account of delay, the report not only gets bereft of the advantage of spontaneity, but danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation and for these reasons, it is essential that delay in lodging the first information report should satisfactorily be explained. Apex Court explained the importance of FIR in **State of Bombay** v. **Rusy Mistry** [AIR 1960 SC 391], in which it is held that “a First Information Report means, the information by whomsoever given to the 6 Crl.R.P.No.3090/2003 officer in charge of a police station in relation to the commission of a cognizable offence and which is first in point of time and on the strength of which the investigation into that offence has commenced.” 7. Apex Court in **Apren Joseph** v. **State of Kerala** [1973 SCC (crl) 195] held that “The FIR will have better corroborative value if it is recorded before there is time and opportunity to embellish or before the informant's memory fails. Undue or unreasonable delay in lodging the FIR therefore, inevitably gives rise to suspicion which puts the Court on guard to look for the possible motive and the explanation and consider its effect on the trustworthiness or otherwise of the prosecution version.” The trial Court was of the view that there was no independent corroboration to prove the alleged occurrence and failed to explain the delay, finally the learned Magistrate Crl.R.P.No.3090/2003 7 acquitted the accused. I do not find any illegality in the finding of the trial Court. Therefore, there is no merit in this revision petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd