P. Mohanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944** **CRL.A NO. 2847 OF 2008** **AGAINST THE JUDGMENT DATED 24.05.2004 IN C.C.NO.172/2001** **OF THE CHIEF JUDICIAL MAGISTRATE ,THALASSERY (Crl.L.P. 1138/2008 OF HIGH COURT OF KERALA)** ## **APPELLANT/COMPLAINANT:** **P. MOHANAN** **AGED 43 YEARS, S/O.GOPALAN NAIR, PULLATTUMMAL HOUSE, INSPECTOR, KERALA COOPERATIVE DEPARTMENT, TRIPPANGOTTUR AMSOM, KADAVATHUR DESOM, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADV SRI.P.V.MOHANAN** ## **RESPONDENTS/ACCUSED/STATE:** **1 PULLATTUMMAL HARIDASAN, AGED 40 YEARS, S/O.NARAYANAN NAIR (LATE), ELECTRICIAN BY OCCUPATION, RESIDING AT PULLATTUMMAL HOUSE, P.O.KADAVATHUR, THRIPPANGOTTUR AMSOM, KADAVATHUR DESOM, THALASSERY TALUK, KANNUR DISTRICT.** **2 PULLATTUMMAL ANEESH, AGED 25 YEARS, S/O.NANU NAIR,DRIVER BY OCCUPATION, RESIDING AT PULLATTUMMAL HOUSE, THRIPPANGOTTUR AMSOM,KADAVATHUR DESOM, P.O.KADAVATHUR, THALASSERY TALUK, KANNUR DISTRICT.** **3 MEEMBULLAKANDIYIL MAHESAN AGED 24 YEARS, COLLIE BY OCCUPATION, RESIDING AT MEEMBULLAKANDIYIL HOUSE, THRIPPANGOTTUR AMSOM, KADAVATHUR DESOM, P.O.KADAVATHUR, THALASSERY TALUK, KANNUR DISTRICT.** 2 Crl.Appeal No.2847 of 2008 - **4 PODUVALKANDIYIL ANI ALIAS DINKAN AGED 25 YEARS, S/O.KANNAN (LATE), COLLIE BY OCCUPATION, RESIDING AT PODUVALKANDIYIL HOUSE, THALASSERY TALUK, KANNUR DISTRICT.** - **5 THAYULLATHIL RAVI, AGED 25 YEARS, S/O.KANNAN, COLLIE BY OCCUPATION, RESIDING AT, THAYULLATHIL HOUSE, P.O.KADAVATHUR, TRIPPANGOTTUR AMSOM, KADAVATHUR DESOM, THALASSERY TALUK, KANNUR DISTRICT.** - **6 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 TO R4 BY ADVS. SRI.M.SASINDRAN SRI.P.SASI R6 BY SRI.SANAL P RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.08.2022, THE COURT ON 02.09.2022 DELIVERED THE FOLLOWING:** 3 Crl.Appeal No.2847 of 2008 ## **JUDGMENT** This is an appeal with leave filed under Section 378(4) of the Code of Criminal Procedure, 1908. 2. The complainant in C.C.No.172 of 2001 on the file of the Court of the Chief Judicial Magistrate, Thalassery, is the appellant. He has filed a complaint alleging offence punishable under Sections 143, 147, 391, 323, 324, 352 and 506(ii) read with Section 149 of the Indian Penal Code, 1860. The Chief Judicial Magistrate found the accused, who are respondent Nos.1 to 5, not guilty and acquitted. The said judgment dated 24.05.2004 is under challenge. 3. On 02.03.2012, the appeal was admitted and notice was ordered to respondents 1 to 5. The learned Public Prosecutor took notice. 4. Heard the learned counsel appearing for the appellant, respondents 1 to 5 and the learned Public Prosecutor. 5. The allegations, in brief, levelled against respondent Nos.1 to 5 are that they criminally trespassed into 4 Crl.Appeal No.2847 of 2008 the residential house of PW1, after forming themselves into an unlawful assembly and inside the house, they manhandled PW1 using dangerous weapons such as iron rod, reaper and a 'kalkatta'. The 1[st] respondent beat at his head with an iron rod, the 2[nd] respondent blew with a wooden reaper and the 3[rd] respondent hit at his neck using a wooden block. PWs.2, 4 and 5 are his wife, brother and daughter, respectively. They were also assaulted and Pws.1, 2, 4 and 5 sustained injuries at the hands of respondents 1 to 5. The allegations are to the effect that the 2[nd] respondent beat PW4 at his nose, the 4th respondent beat PW2 and the 1[st] respondent threw down PW5, who is a child, resulting in a fracture at her wrist. It has also been alleged that some among the respondents ransacked the house by taking away Rs.1,200/-. 6. PWs.1, 2, 4 and 5 said to have undergone treatment. Exts.P1, P4 and P5 are documents showing details of their treatment. The appellant, alleging that police did not take any action despite recording his statement, approached the Chief Judicial Magistrate, Thalassery, with the complaint. 5 Crl.Appeal No.2847 of 2008 After necessary enquiry, respondents Nos.1 to 5 were summoned and on recording evidence rendered by the complainant, charge was framed. PWs.1 to 8 were examined and Exts.P1 to P7(a) were marked on the side of prosecution. Ext.D1 was marked by respondents 1 to 5. After a detailed appreciation of evidence, the learned Chief Judicial Magistrate found respondent Nos.1 to 5 not guilty. 7. The appellant would contend that the Chief Judicial Magistrate erroneously had entered into the finding that the prosecution failed to prove its case. 8. The main reasons recorded by the learned Chief Judicial Magistrate to find respondents 1 to 5 not guilty by extending the benefit of doubt are; - i) lack of proof regarding availability of light at the place of occurrence, - ii) oral evidence tendered through PWs.1, 2, 4 and 5 does not tally with the medical evidence, - iii) absence independent evidence, - iv) pendency of C.C.No.132 of 2001, which was a case initiated on the basis of a police report with respect to the same incident and their mutual conflict. 6 Crl.Appeal No.2847 of 2008 ## 9. The Apex Court in **Muralidhar @ Gidda & another v. State of Karnataka (2014) 5 SCC 730]** held that,- “10. Lord Russell in Sheo Swarup, Sheo Swarup v. King Emperor [AIR 1934 Privy Council 227], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, “… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” The opinion of the Lord Russell has been followed over the years. 11. As early as in 1952, this Court in Surajpal Singh, Surajpal Singh v. State; [AIR 1952 SC 52] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, “……….the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further 7 Crl.Appeal No.2847 of 2008 reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.” 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State; [AIR 1954 SC 1], Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637], Atley v. State of U.P.; [AIR 1955 SC 807] , Aher Raja Khima v. State of Saurashtra; [AIR 1956 SC 217], Balbir Singh v. State of Punjab; [AIR 1957 SC 216], M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200], Noor Khan v. State of Rajasthan; [AIR 1964 SC 286], Khedu Mohton v. State of Bihar; [(1970) 2 SCC 450], Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793], Lekha Yadav v. State of Bihar; [(1973) 2 SCC 424], Khem Karan v. State of U.P.; [(1974) 4 SCC 603], Bishan Singh v. State of Punjab; [(1974) 3 SCC 288], Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC 228], K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC 355], Tota Singh v. State of Punjab [(1987) 2 SCC 529], Ram Kumar v. State of Haryana; [1995 Supp (1) SCC 248], Madan Lal v. State of J&K; [(1997) 7 SCC 677], Sambasivan v. State of Kerala; [(1998) 5 SCC 412], Bhagwan Singh v. State of M.P.; [(2002) 4 SCC 85], Harijana Thirupala v. Public Prosecutor, High Court of 8 Crl.Appeal No.2847 of 2008 A.P.; [(2002) 6 SCC 470], C. Antony v. K. G. Raghavan Nair; [(2003) 1 SCC 1], State of Karnataka v. K. Gopalakrishna; [(2005) 9 SCC 291], State of Goa v. Sanjay Thakran; [(2007) 3 SCC 755] and Chandrappa v. State of Karnataka; [(2007) 4 SCC 415]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of 9 Crl.Appeal No.2847 of 2008 the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.” The said principles were reiterated and explained in **Achhar** ## **Singh v. State of Himachal Pradesh & others [(2021) 5** ## **SCC 543]** . 10. The law therefore is, when the appellant assails the findings of the trial court and seeks to set aside the judgment of acquittal, it is his responsibility to convince the appellate court that the findings are perverse and not ordinarily possible in the light of the evidence available on record. Here, there were two cases with respect to the same incident. The motive alleged is that there was a quarrel between the family members of the appellant and respondents 1 to 5 prior to the 10 Crl.Appeal No.2847 of 2008 incident and the father of PW1 was allegedly assaulted by the 1[st] respondent. It is stated by PW1 that his father had to be taken to the hospital. PW1 just had returned home from the hospital for taking necessary articles and at that time, the respondents 1 to 5 barged into his house and committed the act of rioting and violence. 11. From Exts.P1, P4 and P5 it can be seen that PWs.1, 2 and 5 sustained injuries. But on a detailed consideration, it is not able to reconcile the oral evidence brought on record through PWs.1, 2, 4 and 5 and the injuries noted in Exts.P1, P4 and P5. PW3, the Doctor, had proved the said documents. When the medical evidence does not tally with the oral evidence tendered by the prosecution, independent evidence is required for the oral evidence to be acted upon. PW6 was examined as an independent witness. But she denied having seen the incident. Thus there is absolutely no independent evidence. In that context is the relevance of the trial in C.C.No.132 of 2001. PW1 had admitted that he was examined as PW2 in C.C.No.132 of 2001. He also admitted that the said 11 Crl.Appeal No.2847 of 2008 case is relating to the same incident. The court below after considering the aforesaid evidence and circumstances came to the conclusion that evidence brought on record was insufficient to prove the charge beyond doubt. Extending the benefit of that doubt, respondents 1 to 5 were acquitted. 12. Viewed in the light of the law laid down in the aforesaid decisions, this Court is not convinced that the findings of the learned Chief Judicial Magistrate are perverse, unreasonable and is not a possible view. In the said circumstances, I find no reason to interfere with the impugned judgment, resulting in acquittal of respondent Nos.1 to 5. The appeal therefore fails. The appeal is accordingly dismissed. **SD/-** ## **P.G. AJITHKUMAR, JUDGE** dkr