Rajendran and Saumini v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 CRL.A NO. 854 OF 2007** **JUDGMENT DATED 27.4.2007 IN SC 523/2005 OF ADDITIONAL DISTRICT COURT (ADHOC-I), THODUPUZHA APPELLANTS/ACCUSED NOS. 1 & 3:** 1 RAJENDRAN, S/O.KESAVAN, NARAMANGALATHU VEEDU,, SANGAM KAVALA BHAGOM, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE. 2 SAUMINI, W/O RAJENDRAN, NARAMANGALATHU VEEDU,, SANGAM KAVALA BHAGOM, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE. ADVS.SRI.RENJITH B.MARAR SRI.PRABHU VIJAYAKUMAR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. SMT. S. REKHA SR. PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.854/2007 ## -:2:- ## **J U D G M E N T** Dated this the 21[st] day of March, 2023 This appeal has been preferred by the accused Nos. 1 and 3 in S.C.No.523/2005 on the files of the Additional Sessions Court (Adhoc-I), Thodupuzha (for short 'the court below'), against the judgment dated 27.4.2007 convicting and sentencing them under Sections 307, 326 and 324 of the IPC. 2. The accused, the defacto complainant (PW2) and the injured (PW3) are relatives and neighbours. However, they are not in good terms. There exists civil dispute between them. The prosecution case in short is that, on 6.10.2003 at 7.30 am, while PW3 was on the way to the canal to take bath, all the accused assaulted him. The accused No.1 is alleged to have caused cut injuries on his neck and hands and the accused No.3 is alleged to have caused injuries on his forehead with an arecanut stick. 3. All the three accused faced trial for the offences punishable under Sections 326, 324 and 307 read with 34 of the IPC. The court below after full-fledged trial found that the prosecution has failed to prove the guilt against the accused No.2 and he was acquitted of all the charges levelled against him. The Crl.A.No.854/2007 -:3:- accused No.1 was found guilty for the offence punishable under Section 307 of the IPC and the accused No.3 was found guilty for the offences punishable under Sections 326 and 324 of the IPC and they were convicted for the said offences. The accused No.1 was sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹5,000/-, in default to suffer simple imprisonment for one year under Section 307 of the IPC. The accused No.3 was sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹5,000/-, in default to suffer simple imprisonment for one year under Sections 326 and 324 of the IPC. Challenging the said conviction and sentence, the accused Nos. 1 and 3 have preferred this appeal. 4. I have heard Sri. B. Renjith Marar, the learned counsel for the appellants and Smt. S. Rekha, the learned Senior Public Prosecutor. 5. The learned counsel for the appellants impeached the finding of the court below on appreciation of evidence and the resultant finding as to the guilt. The learned counsel submitted that the evidence on record would show that the incident was not in fact as projected by the prosecution and the genesis of the incident was suppressed by the prosecution. The counsel further Crl.A.No.854/2007 -:4:- submitted that the prosecution failed to explain the injuries sustained by the accused Nos. 1 to 3. The counsel also submitted that even though a counter case in respect of the same incident was registered, it was not tried along with the above case which caused prejudice to the accused. There is a delay of 26 hours in lodging the FIR which has not been explained by the prosecution, added the counsel. 6. The learned public prosecutor on the other hand supported the findings and verdict handed down by the court below and argued that necessary ingredients of Sections 326, 324 and 307 of the IPC have been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 7. The prosecution mainly relied on the evidence of PW1 to PW3 and PW8 to prove the incident and fix the culpability on the accused. PW3 is the injured. PW2 is the father of PW3 who gave Ext.P2 FIS. He also witnessed the incident. PW1 is the doctor who issued Ext.P1 wound certificate. PW8 is the doctor who treated PW3 at the Medical College Hospital, Kottayam and issued Ext.P7 discharge summary. 8. PW2 and PW3 spoke in terms of the prosecution Crl.A.No.854/2007 ## -:5:- version. Out of the three independent witnesses, PW4 and PW5 did not support the prosecution case at all. PW6 partly supported the prosecution case. To a certain extent, he spoke in terms of the defence version as well. This is a case where the defence admits their presence at the scene of occurrence. It is their case that, in fact, they were attacked and assaulted by PW3 and in the course of the said attack, he sustained injury. Ext.D6 copy of the charge sheet and Exts D6 (a), (b) and (c) copy of the wound certificates of the accused Nos. 1 to 3 would show that a counter case has been registered in respect of the said incident where PW3 allegedly attacked and assaulted the accused Nos. 1 to 3 at the place of the incident and at the same time. 9. It is true that the evidence of PW2 and PW3 coupled with the medical evidence available on record would show that in the incident, PW3 has sustained injuries. However, the question is, whether the said injury has been sustained by PW3 at the hands of the accused Nos. 1 to 3 in the manner alleged by the prosecution. As stated already, Exts.D6 series wound certificates would show that the accused also sustained injuries in the same transaction. But, the prosecution has failed to explain those injuries. It is the bounden duty of the prosecution to give Crl.A.No.854/2007 -:6:- reasonable explanation for the injuries sustained by the accused in the course of the occurrence. The learned counsel for the appellants invited my attention to the decisions of the Supreme Court in this regard in _**Lakshmi Singh V. State of Bihar**_ [(1976) 4 SCC 394] and _**Nand Lal & Others v. State of Chattisgarh**_ [2023 LiveLaw SC 186]. In _**Lakshmi Singh**_ (supra) it was held that where the accused is proved to have sustained injuries in the course of the same occurrence, the non explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. In _**Nand Lal**_ (supra) it was held that the omission on the part of the prosecution to explain the injuries on the accused would assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. 10. Here, not only the prosecution has failed to explain the injuries sustained by the accused, but also the investigating agency did not make any attempt to conduct investigation as to Crl.A.No.854/2007 -:7:- how and in what manner the accused sustained the injuries. It is pertinent to note in this regard that the independent witnesses examined did not support the prosecution version. In fact, one of the independent witness (PW6) gave evidence in tune with the defence version of the crime. For these reasons, I hold that, non explanation of the injuries sustained by the accused cast doubt as to the very genesis of the occurrence. 11. It is settled that a case and counter case ought to be tried by the same trial judge. The learned counsel for the appellants invited my attention to the judgment of the Apex Court in _**State of M.P. v. Mishrilal**_ (2003) 9 SCC 426 and a judgment of this Court in _**Amir & Another v. State of Kerala**_ 2022 (4) KLT 511. In _**Mishrilal**_ (supra), the Apex Court has held that the cross case should be tried by the same court irrespective of the nature of the offence involved, in order to avoid conflicting judgments on the same incident. In _**Amir**_ (supra), this Court relying on the decision of the Apex Court in _**Maydeen A.T. v. Assistant Commissioner, Customs Department**_ [2021 KHC 6676] held that the case and counter case have to be tried by the same court one after the other. The court below did not follow the procedure envisaged when dealing with the case where ## Crl.A.No.854/2007 ## -:8:- there are cross FIRs as held in the decisions cited above. 12. The incident took place on 6.10.2003 at about 7.30 am. Ext. P2 FIS was lodged by PW2 only at 7.30 pm on 7.10.2003. It is settled that the delay in lodging the FIR has to be explained by the prosecution. This is a case where it has come out in evidence that the accused also sustained injuries in the very same incident. Ext.D6 FIR has been registered with respect to that incident. Hence, it is the bounden duty of the prosecution to give satisfactory explanation to the delay of 26 hours in registering the FIR. But the prosecution miserably failed to explain the delay. In _**Nand Lal**_ (supra), the Apex Court held that when the parties are at loggerheads, immediate lodging of FIR provides credentials to the prosecution. In the light of the above findings, I have no hesitation to conclude that there is no satisfactory evidence to prove that the genesis of the occurrence is as alleged by the prosecution. The evidence of PW2 and PW3 without any corroboration is insufficient to prove the prosecution case beyond reasonable doubt. The prosecution has failed to explain the injuries sustained by the accused during the course of the same transaction. In these circumstances, the court below ought to Crl.A.No.854/2007 -:9:- have extended benefit of doubt to the accused. Hence, the conviction and sentence vide the impugned judgment cannot be sustained and accordingly, it is set aside. The appellants/accused Nos. 1 and 3 are found not guilty and they are acquitted. Their bail bonds are cancelled. The appeal is allowed. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** ## **kp**