Nirmala v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943** ## **CRA(V) NO. 168 OF 2017** **AGAINST THE JUDGMENT IN SC 413/2008 OF ADDITIONAL SESSIONS** ## **COURT,NEYYATTINKARA** **CP 38/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS** ## **-II,NEYYATTINKARA** ## **APPELLANT:** ## **NIRMALA,** **D/O. REETHAMMA, PUTHUVAL PURAYIDAM, PARUTHIYOOR, POZHIYOOR, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY ADV SRI.N.P.RENJITH RAO** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, PARASSALA (CRIME NO.24/2006 OF POZHIYOOR POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENAKULAM-682031.** - **2 SIVAKURISU, S/O. SEBASTHIAR ADIMA, PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **3 ANTONY @ ANTHONIPILLA, S/O. KARLOSE, PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **4 JNANAPRAKASAM @ ABRAHAM, S/O. SEBASTIAN, PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **5 JUSTIN, S/O. ANTHONYAPPAN, , PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **6 RAJENDRAN @ RAJU, S/O. MARIYADASAN, , PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **7 RAJENDRAN @ KOONAN, S/O. PANDIYADIMA, , PUTUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** **Crl.A.(V).168 /2017 & - 2 - connected case.** - **8 JNANAMIKHAYEL @ POKKUDI, S/O. SEBASTIAN, , PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **9 DAVILLS, S/O. KARLOOSE, , PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **10 JOHN BRITTO @ THOLAN, S/O. PANIYADIMA, , PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **11 FRANKLIN, S/O. KARLOOSE, , PUTHUVAL PURAYIDOM VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583.** - **12 STELLUS @ OTTI, S/O. MALAYADIMA, PLANKALA VEEDU, PARUTHIYOOR, POZHIYOOR DESOM, KULATHOOR, THIRUVANANTHAPURAM-695583. BY ADVS. SMT.N.P.ASHA SRI.G.SUDHEER** ## **OTHER PRESENT:** ## **SRI.ALEX.M.THOMBRA, SENIOR PUBLIC PROSECUTOR** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 18.11.2021 ALONG WITH UNNUMBERED APPEAL NO... OF 2020(FILING NO.17747 OF 2020), THE COURT ON 03.12.2021 DELIVERED THE FOLLOWING:** **Crl.A.(V).168 /2017 & connected case.** **- 3 -** **K.Vinod Chandran & C.Jayachandran, JJ. --------------------------------------------Crl.A.(V) No. 168 of 2017 & Crl.A.No. of 2020 [Filing No.17747 of 2020] --------------------------------------------Dated this the 03[rd] December, 2021** ## **JUDGMENT/ORDER** **Vinod Chandran,J.** ## _**Chandrappa and others v. State of Karnataka (2007**_ _**(4) SCC 415)**_ **restated the principles regarding the scope of the power of appellate Court to re-appreciate, review or reconsider evidence and interfere with an acquittal. The general principles were encapsulated in the following manner:** **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, 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** **Crl.A.(V).168 /2017 & - 4 - connected case.** **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 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.** **The appeal arises from the acquittal of the accused from the charge under Ss.143, 147, 148, 450, 323, 324, 326, 307 and 302 IPC r/w. Section 149 of IPC. The allegation was that the first accused had enmity with the deceased regarding the theft of fishing net belonging to PW4, on which accusation there was an altercation and scuffle on the previous day between the first accused, the deceased and PW4. The accused then, formed themselves into an unlawful assembly and armed with deadly weapons like iron bars, rods, wooden reapers and logs, criminally trespassed into the house of Israel where the deceased and PW1 to 7** **Crl.A.(V).168 /2017 & - 5 - connected case.** **were involved in the discussion about the theft of a fishing net. The assailants assaulted the deceased and PW1 to PW7, inflicting blows with deadly weapons and by beating and hitting the witnesses. The 1[st] and 2[nd] accused inflicted blows upon the head and lower back of the deceased. Likewise, 3[rd] and 4[th] accused hit the deceased on the right leg, while the 5[th] accused inflicted a blow on the left leg of the deceased. The 2[nd] accused inflicted a blow upon the head of PW1 and 8[th] accused upon the foreleg of PW2 causing a fracture. The 4[th] accused also inflicted a blow upon the left side of the head of PW2, the 9[th] accused upon the forehead of PW3 who also sustained an injury from the blow inflicted by the 10[th] accused. The 8[th] and 11[th] accused hit the back side of the head of PW4 and PW5 sustained injuries from the attack of accused Nos. 8 and 9. PW6 sustained injuries at the hands of the 6[th] and 7[th] accused and PW7 at the hands of the 4[th] accused. The deceased tried to flee from the assailants, which attempt was thwarted by A1 to A5 who chased him and together brutally beat him on his head and various parts of the body, on the Pozhikkara road near to the residence of A1. All the injured were taken to the** **Crl.A.(V).168 /2017 & connected case.** **- 6 -** **Neyyattinkara Taluk Hospital, from where the grievously injured deceased was immediately referred to the Medical College Hospital, Thiruvananthapuram. The deceased succumbed to his injuries at around 09.45 p.m on 06.02.2006. The accused stood trial for the house trespass and assault committed by them with the common object to murder the deceased. Before the Trial Court, the prosecution examined PW1 to PW22 witnesses through whom were marked 65 documents as Exts.P1 to P60. MO1 to MO15 were also marked, of which MO 1 to MO5, MO8 and MO9 are said to be the weapons used by the assailants recovered under S.27 of the Evidence Act. The defence examined DW1 and marked Exts.D1 to D3 contradictions. The prosecution also marked Exts.P2 to P4 contradictions. The Trial Court acquitted the accused, against which the above appeal is filed.** **2. PWs1 to 6 are the eye witnesses, all of whom were injured. PW1 is the person who gave the First Information Statement (FIS), based on which Ext.P12 FIR was registered by PW15. PW1 identified MO1 and MO2 weapons and MO3 and MO4 weapons were marked through PW2, all used to** **Crl.A.(V).168 /2017 & - 7 - connected case.** **assault the accused. PW3 identified MO5 weapon and PW5 identified MO6 and MO7 dress worn by the deceased. PW6 identified Mos8 and 9 weapons which were used to inflict injuries on her. PW7 marked the recovery mahazar at Ext.P5, PW11 the recovery mahazar at Ext.P8, PW12 that at Ext.P9 and PW18 that by Ext.P23. PW8 spoke about the scuffle between the deceased, accused and PW4 on the previous day. PW4, whose fishing net was alleged to have been stolen; which theft is said to be the genesis of the quarrel, turned hostile to the prosecution. Exts.P2 to P4 contradictions from the 161 Statement of PW4 were proved through PW21-Investigating Officer (I.O).** **3. PW9 attested the scene mahazar Ext.P6 and PW10 was the Doctor who conducted postmortem examination and marked Ext.P7 report. PW13 is the attester to the inquest report (Ext.P10) and PW14 received the body of the deceased evidenced by the acknowledgment issued by Ext.P11. PW17 is the Doctor at the Primary Health Centre, Pozhiyoor who treated PWs. 1 to 4, PW6, CW5 and CW7. He also marked the treatment certificates, Ext.P16 to P22 of the injured. PW19 Village Officer prepared the scene plan at Ext.P24 and PW20** **Crl.A.(V).168 /2017 & connected case.** **- 8 -** **Assistant Surgeon first attended to the deceased on admission. Ext.P25 dt.06.02.2006 is the wound certificate issued by PW20. PW21 is the I.O who amongst other things marked Exts.P1(a) to P1(e) body notes of the injuries sustained by the various accused, forming part of the FIS. He also marked Ext.P46 recovery mahazar at the instance of the 3[rd] accused. PW22 is the I.O who submitted the Final Report.** **4. The Trial Court framed seven issues: whether the accused formed themselves into an unlawful assembly armed with deadly weapons and committed (i)rioting (ii)house trespass (iii) inflicted voluntary hurt including hurt with dangerous weapons (iv) caused grievous hurt upon PW2 (v) attempted to commit murder of PW1 to 3 and PW6 (vi) committed murder of the deceased by inflicting severe head injuries upon him with dangerous weapons, all in prosecution of their common object. The 7[th] issue was with respect to the proper punishment to be awarded if the accused are found guilty.** **5. The Trial Court considered points 1 to 6 together. The charge levelled against the accused was** **Crl.A.(V).168 /2017 & - 9 - connected case.** **sought to be established through direct ocular evidence as well as by circumstantial evidence. The ocular evidence consisted of testimony of PWs 1 to 6 and the circumstantial evidence related to the recovery under S.27 of the Evidence Act; of the weapons MOs1 to 5 MO8 and MO9. PW1 in the FIS spoke of a totally different scene of occurrence from that mentioned in the other prosecution records including the scene mahazar and final report. Before Court, PW1 said that the place of occurrence was inside the house of Israel, while in Ext.P1, it was his case that the accused trespassed into his own house and committed the offence. The learned Counsel for the appellant would contend that the accused are poor fisherman living in small hutments and both PW1 and Israel were under one roof and had married sisters. However, PW1 does not proffer such an explanation and he categorically stated that he did not say before the Police that the incident took place inside his house as stated in the FIS. Israel was also not examined before Court. The Trial Court found that PW1 is not a credible witness, going by the statements made by him during chief examination. PW1 stated that A1 and about 5 to 6 persons** **Crl.A.(V).168 /2017 & - 10 - connected case.** **trespassed into the house of Israel and perpetrated the crime. The Prosecutor sought to confirm from the witness as to whether all the accused were present at that time which he assertively denied. PW1 also said that A7 had beat his wife with an iron rod which he omitted to mention in the FIS. In chief examination, PW1 alleged that the 8[th] accused beat PW2 with a wooden stick, while in the FIS, he alleged that the weapon was an iron bar which caused fracture to both legs of PW2. The Prosecutor sought to clarify and PW1 answered that he does not remember since it was dark. This alone would destroy the credibility of PW1, was the finding of the Trial Court; which we cannot fault. PW1 also asserted in chief examination that he saw the weapons only at the time of the alleged crime and then before Court. The identification of such weapons which were only wooden reapers and iron bars without any distinguishing marks were rightly held to be doubtful by the Trial Court.** **6. In cross examination too, PW1 made a statement which affirmed that he was not a trust worthy witness. It was his statement that he did not see any of the accused entering the residence of Israel, that all the accused were** **Crl.A.(V).168 /2017 & - 11 - connected case.** **standing on the road; where himself, his wife, PW6 and his sister-in-law were assaulted ie: on the front of the veranda of Israel's house. Again, in cross-examination PW1 confessed that since it was night, he could not identify which accused had used which weapons. PW1 also denied MO2 iron rod having been used against him and alleged that the said iron rod is not seen among the weapons. His statement before Court that, his wife was assaulted by A6 and A7 with a wooden reaper, was not disclosed in the FIS. He also said that due to darkness, he had not seen the person who assaulted his sister-in-law. PW1 again prevaricated in cross-examination pointing out MO1 as the weapon which was used to attack himself and his wife and when the Prosecutor sought to clarify in re-examination, PW1 revealed his inability to point out the weapon specifically used against him, from among those produced before Court. The above referred inconsistencies, anomalies and contradictions rendered PW1 totally unreliable, according to the Trial Court; which we fully agree with.** **7. PW2 who allegedly sustained fracture injuries in the incident referred to only six persons as the** **Crl.A.(V).168 /2017 & - 12 - connected case.** **assailants in chief examination. Of the six persons, he referred to three by nick names from which their identity could not be clearly deciphered. The overt acts stated to have been carried out by the persons whose nick names were mentioned could not be pinpointed on any of the accused. The prosecution also did nothing to elicit the identity of the persons whose overt acts were spoken of by PW2. PW2 also had different version about where the injured were sitting at the time of the accident. In cross-examination, he said that all of them were sitting inside the house of Israel, while his 161 statement was that some were sitting inside the house and others outside the house. The contradictions so brought out as Ext.P1 was proved through the I.O. He also said that when the deceased was being beaten up, PW2 was lying on the road in front of the house and even according to him, he did not witness the assault on PWs1, 3 and 4. There was also an allegation of one Mundan having assaulted PW1's wife, which case, even the prosecution did not have. PW2 also stated in crossexamination that he had not stated to the Police that A6 and A7 assaulted PW1's wife.** **Crl.A.(V).168 /2017 & - 13 - connected case.** **8. PW3 is the son of PW2 whose evidence also had the same inconsistency of the evidence of PW2 regarding who were inside the house and outside. While he said that he was standing in the veranda of the house he also deposed that only on hearing the hue and cry inside the house he entered and thereby witnessed the assault. This is quite contradictory to his statement that he was standing in the veranda; in which event he would definitely have seen the assailants entering the house. The witness also did not have any consistent case as to where he was assaulted. While PW3 stated that A9 inflicted a blow upon his lower back the case of the Prosecution was that PW3 suffered an injury on his left forehead. PW3 denied having been inflicted with such an injury and also denied such a statement to the police. In chief examination while PW3 said that he had earlier identified the weapons as shown to him by the Police, in cross-examination he asserted that he has seen the weapons for the first time in Court, after the crime. Ext.D2 and D3 contradictions in S.161 statement of PW3 were proved by the I.O. PW4 another son of PW2 turned hostile to the prosecution and disowned all his statements** **Crl.A.(V).168 /2017 & - 14 - connected case.** **to the I.O. His version was quite different and the persons involved were also not the same and the Trial Court totally eschewed his evidence; rightly so.** **9. PW5 is the cousin of the deceased who allegedly witnessed the second part of the incident, ie: the chase and further assault on the deceased by A1 to A5 on the Pozhikkara road. The deceased after suffering a severe head injury and a fracture upon his leg, ran for a distance of 100 meters towards the south east chased by A1 to A5 according to the prosecution. The deceased is said to have fallen down, when A1 to A5 beat him thoroughly. PW5 is said to have seen the same while he was standing in front of his shop by the side of Pozhikkara road. The learned Sessions Judge looked at Ext.P6 scene mahazar and P24 scene plan to find that the shop or house of PW5 is not indicated in or around the scene of occurrence. It was also found that the escape pursued and subsequent assault are unbelievable considering the nature of the injuries said to have been suffered by the deceased at the first instance itself. PW5, in cross-examination also admitted that he had not seen A2 to A5 assaulting the deceased. He also stated that he saw** **Crl.A.(V).168 /2017 & - 15 - connected case.** **only A1 inflicting one blow upon the head of the deceased, quite contrary to his version of having seen all the accused showering blows on the fallen deceased. The identification of MO1 weapon, which PW5 asserted to be on the basis of its dimensions, was found to be unbelievable. PW6 is the wife of PW1 and she witnessed the first part of the alleged crime which occurred inside the house of Israel. PW6 had different versions as to who inflicted the injury upon her and she stated in her cross-examination that she was not able to recollect the exact particulars. In cross-examination she had deviated considerably from the prosecution version and rendered her evidence unreliable. She also did not have a consistent version about who were inside the house and who stood outside. She asserted that the house, the scene of occurrence belonging to Israel, did not have a verandah which is contrary to what is seen from Ext.P6 scene mahazar. She also said that on the first blow she became unconscious and she was not able to recollect any of the events which took place. The identification of the weapons were also held to be unreliable since she admitted that she saw the same after the incident, only in** **Crl.A.(V).168 /2017 & connected case.** **- 16 -** **Court, after the lapse of nine years.** **10. PW8 was examined only to speak of the scuffle in which the 1st accused on the one side and the deceased and PW4 on the other were involved. He denied such a statement having been made by him to the police in thus rendering his evidence totally unreliable. The prosecution sought to establish the crime through ocular evidence of PW1 to PW6 and PW8 who was proffered to speak on the genesis of the enmity, which gave rise to the motive. The Trial Court has rightly disbelieved the entire evidence as proffered by the prosecution through PWs1 to 6 and PW8.** **11. The Trial Court despite finding the ocular evidence to be not reliable still examined the circumstantial evidence, which the prosecution proffered through recovery of material objects. At the outset, it was found that the recovery was suspicious since the use and handling of the said weapons were not established by the eye witnesses, by reason of their inconsistent stand. It was also found that, there was inordinate delay in producing the weapons, marked as MO1 to MO5, MO8 and MO9 recovered under Section 27 of the Evidence Act. MO1 to MO4,** **Crl.A.(V).168 /2017 & - 17 - connected case.** **MO8 and MO9 were produced before Court through the property lists marked as Exts.P56, 57 and 59, on 02.03.2006 and MO5 on 22.08.2006. According to the I.O, MO2 and MO4 were recovered on 08.02.2006 and other weapons on 17.02.2006 while the same was produced only on 02.03.2006 as revealed from Ext.P56 and 56. MO5 was recovered on 22.05.2006 and produced through Ext.P59 property list dt. 22.08.2006, after three months. There was no explanation proffered for the inordinate delay and the I.O merely stated that he had kept the weapons in his office. The use of the weapons again was noticed to be not clearly established by the various prosecution witnesses. Ext.P23 confession statement was seen to have been made jointly by A1 and A5 which was held to be improper and not worthy of consideration as held in** _**Thampi Sebastian v. State of Kerala [1988 (1) KLT 247]**_ **. Mos. 3, 8 and 9 also suffered from the same infirmity since the recovery was by reason of a joint disclosure made by A6 to A8 during their custodial interrogation. Even the mahazar Ext.P9 prepared by PW21 on 17.02.2006 was produced before Court only on 02.03.2006. The attester to Ext.P9, PW12 though identified A6 to A8 does not speak of any of** **Crl.A.(V).168 /2017 & - 18 - connected case.** **them having recovered the weapons and handed it over to the Police. The mahazar also does not speak of who found the weapon and handed it over to the Police. PW7 who attested Ext.P5 mahazar first pointed out MO5 as the weapon recovered; but later switched over to MO4. Ext.P46 mahazar was also produced belatedly, with a delay of three months and the attester to the said mahazar could not be examined despite summons for reason of that person having not been traced out.** **12. On an evaluation of the above evidence it was found that there was not even a scrap of evidence that the accused committed the crime as alleged by the prosecution; neither ocular nor circumstantial. As has been held in** _**Chandrappa**_ **(supra) when considering an appeal from acquittal, the Court has to keep in mind the double presumption available to the accused; first that based on the fundamental principle of every person being presumed to be innocent till found guilty by a competent Court of law and second, the one he is entitled to, for reason of an acquittal entered into by a Trial Court who had seen the witnesses, appraised their demeanour and evaluated the** **Crl.A.(V).168 /2017 & - 19 - connected case.** **evidence led. It was also held by the Hon'ble Supreme Court that even if there are two reasonable conclusions possible on the basis of the evidence on record the Appellate Court should be slow in disturbing the finding of acquittal recorded by the Trial Court.** **13. In the present case we are of the definite opinion that there is no conclusion possible other than that arrived at by the Trial Court which was also on the finding that there is absolutely no shred of evidence against the accused. We fully agree with the Trial Court and uphold the judgment of acquittal and as a consequence reject the appeal.** **14. The unnumbered appeal arise from the very same judgment, filed by the State. Another Division Bench in State of** _**Kerala v. Saji @ Dada Saji [2021 (1) KHC 740 (DB)]**_ **found that when there is no direction from the Government, it cannot be an appeal at the instance of the State. In the present case also there is no direction and hence only examination possible is as to whether a revision should be initiated on grounds of an unmerited acquittal. Since there was an appeal by the victim, which we have now rejected, we** **- 20 -** **Crl.A.(V).168 /2017 & connected case.** **do not think that there is any reason to examine the question of whether a revision should be initiated** _**suo motu**_ **. We hence reject the application for condonation of** **delay and the appeal filed by the State.** **Ordered accordingly.** **Sd/K. Vinod Chandran Judge Sd/C. Jayachandran Judge** **jma/-**