Reji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943** **CRL.A NO. 2120 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 286/2005 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI** ## **APPELLANT/S:** REJI, S/O. MATHEW KANAKKALIL VEEDU, MANJAPETTY KARA,, KALKOONTHAL VILLAGE. BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ## **RESPONDENT/S:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SMT. MAYA **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**'CR'**_ ## **A. BADHARUDEEN, J.** ======================================== _Crl.Appeal No.2120 of 2006_ ======================================== Dated this the 26[th] day of August, 2021 ## **JUDGMENT** The first accused in SC No.286/2005 on the file of the Additional Sessions Judge, Thodupuzha is the appellant herein. The State of Kerala represented by the Public Prosecutor is the sole respondent. The judgment dated 19.10.2006 in the above case is under challenge in this appeal. 2. I would like to refer the parties in this appeal as prosecution and the accused hereinafter for easy reference. 3. The brief facts of the case: The prosecution allegation is that on 5.5.2004 at about 7.30 P.M accused Nos.1 to 3 in this case wrongfully restrained and manhandled one Peethambaran and in consequence thereof, he died at Medical College Hospital in Kottayam on 7.5.2004 at about 5.30 P.M. Nedumkandom Police registered Crime No.116/2004 and after investigation charge alleging commission of offences under Section 341, 302 r/w 34 of IPC was filed. Crl.Appeal No.2120 of 2006 3 4. On committal of the matter, the learned Sessions Judge took cognizance for the above offences and proceeded with trial after framing charge under the above sections. During trial, PW1 to PW15 were examined, Exts.P1 to P13 and MOs1 to 5 were marked on the side of the prosecution. 5. The accused were questioned under Section 313 of the Cr.PC and provided opportunity to adduce defence evidence, after recording the incriminating circumstances. But no defence evidence adduced. 6. On appraisal of evidence, after hearing both sides, learned Additional Sessions Judge delivered judgment as follows: _Accused No.1 is found guilty of the offences under Sections 341 and 323 of the Indian Penal Code and hereby convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- for the offence under Section 323 of the Indian Penal Code to undergo simple imprisonment for one month and a fine of Rs.500/- for the offence under section 341 of the Indian Penal Code. The accused shall also undergo simple imprisonment for one month, in case of default of payment of fine, the sentence shall run concurrently. Accused No.1 and 2 are given the benefit of doubt under Section 302 r/w Section 34 of the Indian Penal Code and are acquitted. Accused No.2 is also acquitted for the offence under Section 341 of he Indian Penal Code. The charge against accused No.3 is abated since he is no more. Set off for the period of custody is also allowed._ 7. Learned Counsel for the 1 st accused argued that the trial court went wrong in finding commission of offences under Sections 323 and 341 of the IPC by the 1st accused relying on the evidence of hostile witnesses. He submitted further that PW1 to 4 and 11, the occurrence witnesses, turned hostile to the Crl.Appeal No.2120 of 2006 4 prosecution and the court below given emphasis to the evidence of PW1 and PW11 to find the commission of offences under Sections 323 and 341 of IPC by the 1st accused. Learned Counsel argued further that the trial court failed to appreciate the contradictions marked while examining PW1 as Exts.P1 to P3 and Exts.P15 to 18 while examining PW11 to disbelieve them. Consequently, the trial court found that PW1 and PW11 are reliable witnesses as observed in Paragraph 35 of the impugned judgment. 8. The learned Public Prosecutor supported the conviction and sentence and submitted that the evidence of PW1 and PW11 along with medical evidence and evidence given by the Investigating officers would substantiate the conviction and sentence imposed by the court below and therefore, the same is liable to be confirmed. However, the learned Public Prosecutor conceded that the sentence can be modified to fine as canvassed by the learned Counsel for the 1st accused. 9. In view of the arguments advanced as above, I have perused the evidence available. The following points raised for consideration. 1. Whether the trial court is justified in finding that the 1st accused committed offence under Sections 341 of IPC ? Crl.Appeal No.2120 of 2006 5 2. Whether the trial court is justified in finding that the 1 st accused committed offence under Sections 324 of IPC.? 3. Whether the conviction and sentence are liable to be set aside or modified.? 4. The order to be passed? - Points 1 to 3: 10. On perusing the deposition of PW1 to PW4, in fact, they turned hostile to the prosecution. The evidence given by PW1 to 4 would go to show that they did not support the prosecution on material allegations. However, a scuffle in between Peethambaran and Reji (A1) was deposed by PW1. He also deposed that Reji beat Peethambaran, but he could not say where Reji beat. Thereafter, questions were asked on getting permission to cross examine the witness. Accordingly, the portions of his previous statement were marked as Exts.P1 to P3 as PW1 did not support the prosecution. Nothing could be gathered from the evidence of PW2 to support the prosecution case. PW2 stated that he had only hearsay knowledge about the occurrence. Similar is the position with regard to the evidence of PW3 and PW4 cited by the prosecution to prove the occurrence. 11. As rightly pointed out by the learned Counsel for the 1 st accused/appellant, in Paragraph 35 of the judgment, the trial Crl.Appeal No.2120 of 2006 6 court believed the evidence of PW1 and PW11 supported by medical evidence and the evidence of the Investigating Officers to hold that the 1st accused committed offences under Sections 341 and 323 of IPC. 12. In this context, I am inclined to read the evidence of PW11 also. PW11 deposed that he was familiar with the accused and deceased Peethambaran. According to him, the occurrence was at 7.30 P.M, on 5.5.2004, on the road in front of Barbar Shop - Manjappetti and Booth. Peethambaran asked money due from Reji and Reji replied that money would be given when money was available. When Peethambaran was about to leave the place, Reji caught hold on his shoulder and there occurred a scuffle. Soon Reji beat on the cheek of Peethambaran and PW11 intervened. However, PW11 also turned hostile to the prosecution regarding the other allegations and portions of his previous statement got marked as Exts.P15 to P18. Later, during cross-examination, PW11 stated that Peethambaran and Reji beat each other during a scuffle. 13. Coming to the other evidence, PW5 examined in this case is the son of late Peethambaran. In fact, his evidence in the matter of occurrence is hearsay, though he identified the dress worn by Peethambaran at the time of occurrence as MOs1 to MO5. Crl.Appeal No.2120 of 2006 7 Ext.P9 FIS, given by Peethambaran also marked through PW5 after identifying the signature of his father. Ext.P10 inquest report is proved by the evidence of PW6 an attester to the inquest. Ext.P11 scene Mahazar was proved through PW7. PW8 was examined to prove the recovery of MO1 to MO5 as deposed by PW5. 14. It is argued by the learned Counsel for the 1[st] accused that in Ext.P13 wound certificate no external injuries noted and this fact was admitted by PW9, Dr. K.J.Thomas, who had examined Peethambaran on 6.5.2004 at about 3 A.M, while he was working as Surgeon at Karuna Hospital Nedungandam. It is argued further that the cause of injury alleged in Ext.P13 was assault by some identifiable persons and the name of the assailants were not stated in Ext.P13. 15. On reading the evidence of PW9 along with Ext.P13 , no external injuries noted. A _bdomen was rigid, tenderness present, bowel sounds absent,_ were the observations noted in the wound certificate. Further, it was stated that the patient was feable and blood pressure was 80/60. Opinion as to the . cause of injury is stated as _blunt trauma of abdomen_ 16. PW10 was examined to prove the autopsy examination in this case and it was opined by PW10, the Crl.Appeal No.2120 of 2006 8 doctor, who conducted autopsy that the death was due to the blunt injury sustained to the abdomen. Ext.P14 is the post mortem certificate. 17. Ext.P19 is the scene plan in this case proved through PW2, the then Village Officer, Kalkunthal Village. Recording of Ext.P9 FIS was proved through PW13, who was on emergency duty at Nedunkandom Police Station as on 7.5.2004. PW14 and PW15 are the investigating officers in this case and they supported the prosecution. 18. Coming to the crucial issue as to whether the trial court is justified in finding commission of offences under Sections 323 and 341 of IPC, the available evidence is confined to PW1 and PW11, though PW1 and PW11 did not support the prosecution in its full vigour. 19. It has been settled by a catena of decisions that prosecution is bound to prove each and every allegations beyond reasonable doubt to record conviction, even though the burden of proof is on the accused in regard to plea of exceptions raised by the accused specifically. Three Bench decision of the Hon'ble Supreme Court reported in _**[1974 KHC 776], State of U.P. v. Ram Swarup and another**_ ; three Bench decision reported in _**[1990 KHC 836], Vijayee**_ Crl.Appeal No.2120 of 2006 9 _**Singh and others v. State of U.P**_ are referred to. 20. Before further discussion, it is pertinent to address another argument advanced by the learned Counsel for the 1[st] accused. According to the learned Counsel, the trial court entered into conviction relying on the evidences of PW1 and PW11, who turned hostile to the prosecution and the trial court went wrong in giving emphasis to the evidence of hostile witnesses. In view of this argument, the law on the point required to be addressed. In fact, it is now a settled cannon of criminal jurisprudence that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. S.154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. Decisions reported in _**[(1999) 8 SCC 624], Koli Lakhmanbhai Chanabhai v. State of Gujarat**_ ; _**[(2007) 13 SCC 525], Ramakrushna v. State of Maharashtra**_ ; _**[(2010) 8 SCC 636], Prithi v. State of Haryana; [(2010) 6 SCC 1],**_ Crl.Appeal No.2120 of 2006 10 ## _**Sidhartha Vashist @ Manu Sharma v. State of NCT Delhi**_ are on this point. 21. In the decision reported in _**[(2012 4 SCC 327],**_ ## _**Bhajju v. State of M.P.**_ , the law on this point has been precisely extracted as under: _“Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under S .161 of the Cr.PC. The prosecutor with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court, then the witness is subject to cross-examination by the Prosecutor as well as an opportunity if provided to the defence to cross-examine, such witnesses, if he so desire. In other words, there is a limited examination- in-chief, cross-examination by the prosecutor and cross-examination by the Counsel for the accused. It is admissible to use the examination-inchief as well as the the cross-examination of the said witness. In so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent, which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony. If corroborated by other reliable evidence. S.154 of the Act enables the court, in its discretion to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness, who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this court in the cases.”_ 22. In a latest decision of the Hon'ble Supreme Court reported in _**[(2019) 8 SCC 333, Sudru v. State of Chattisgarh]**_ , it was held as under: Crl.Appeal No.2120 of 2006 11 _Now it is settled principle of law, that such part of evidence of a hostile witness, which is found to be credible could be taken into consideration and it is not necessary to discard the entire evidence._ 23. Thus, the law regarding acceptance of evidence of a hostile witness, which is found credible is no more _res integra._ Therefore, the argument advanced by the learned Counsel for the 1[st] accused that the trial court went wrong in accepting the evidence of hostile witnesses, cannot sustain. As such, this argument stands dispelled. However, credibility and sufficiency of evidence given by hostile witnesses are matters to be considered before entering into conviction. 24. Keeping the above legal position in mind, when considering the ingredients to find commission of offence under Section 341 of IPC, wrongful confinement as defined under Section 340 of IPC must be established. Section 340 defines, wrongful confinement. It is provided that _whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person._ 25. On evaluating the evidence given by PW1, he stated that Reji beat Peethambaran and he didn't know where it was. Whereas, PW11 stated that Reji beat on the cheek of Crl.Appeal No.2120 of 2006 12 Peethambaran and there occurred a scuffle. On perusal of Ext.P13 wound certificate no external injuries noted and PW9, who authored Ext.P13 also given evidence in this regard. Coming to Ext.P14 Postmortem certificate, though some antimortem injuries noted therein, no injuries noted on the cheek. It is not in dispute that in order to prove an offence under Section 323 IPC (voluntary causing hurt), causing bodily pain, disease or infirmity to any person as defined under Section 319 of IPC are to be established. Here the available evidence is confined to a scuffle between Reji and Peethambaran, but bodily pain, disease or infirmity to Peethambaran in consequence thereof were not proved by the prosecution. Position is not different when the evidence to find the offence of wrongful confinement also. 26. As I have already pointed out, the available evidence as that of PW1 and PW11, if taken together, a scuffle in between Reji (1[st] accused) and Peethambaran, when the demand for money payable to Reji by Peethambaran was denied, could be gathered. However, the evidence in this regard does not satisfy the ingredients to attract commission of offences under Section 323 and 341 of IPC without reasonable doubts. As such the benefit of doubt has to be given to the 1[st] accused/appellant. Crl.Appeal No.2120 of 2006 13 27. In that view of the matter, I hold that the court below went wrong in finding that the 1[st] accused committed offences under Section 323 and 341 of IPC. As such the said conviction and sentence are liable to be set aside and I do the same. Point 4: In the result, this appeal is allowed. The conviction and sentence imposed by the court below against the 1[st] accused stand set aside. Consequently, the 1[st] accused/the appellant is acquitted for the offences under Section 323 and 341 of IPC. The bail bond executed by the appellant/1st accused will stand cancelled. He is set at liberty forthwith. Sd/- ## **A. BADHARUDEEN, JUDGE** jm/