SHAJI, S/O ABRAHAM v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2013/3RD ASWINA, 1935 CRL.A.No. 1228 of 2004 (C) --------------------------- AGAINST THE ORDER/JUDGMENT IN SC 141/2003 of D.C.& SESSIONS COURT,THODUPUZHA DATED 29/07/2004 AGAINST THE ORDER/JUDGMENT IN CP 72/2002 of J.M.F.C., KATTAPPANA APPELLANT/ACCUSED: -------------------- SHAJI, S/O.ABRAHAM, MADATHINAL HOUSE, UPPUTHARA VILLAGE, KANNAMPADY, KATHITHEPPAM BHAGOM. BY ADVS.SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENT/COMPLAINANT: ---------------------------- STATE OF KERALA, REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, KATTAPPANA, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.T.SHEEBA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. -------------------------------Crl.A.No.1228 of 2004 --------------------------------Dated this the 25[th] day of September, 2013** ## **JUDGMENT** Challenging the judgment dated 29/07/2004 in S.C.No.141 of 2003 of the court of Sessions Judge, Thodupuzha, the sole accused therein preferred the above appeal, since he is convicted and sentenced for the offence under Sections 324 and 307 of IPC. 2. The prosecution allegation is that, on account of prior animosity of the appellant/accused towards PW.1 the injured, who is a member of Scheduled Caste viz. of Hindu Cheramar Caste and with the intention of causing his death the accused, at 6 p.m. on 17/6/1999 at a place in front of a shop of one Valukulam Sibi on the Kannampadi-Kathitheppan road in Kathitheppan Bhagom in Kannampadi Kara in Upputhara Village, inflicted stab injuries with a knife on the lower left chest, on the palm and on the right scapular region of PW.1 and thereby the accused has committed the offence punishable under Sections 323 and 307 of IPC and also Crl.A.No.1228 of 2004 :-2-: committed the offence punishable under Sections 3, 2 (v) of the SC/ST (Prevention of Atrocities) Act, 1989. 3. The police came into the picture, on receiving Ext.P10 intimation from the St.John's Hospital, Kattappana in the Upputhara Police Station on 18/6/1999. Accordingly, PW.11 the Police Head Constable attached to the above Police Station went over to the said Hospital at about 5 p.m. and recorded Ext.P1 F.I. Statement of PW.1, who was undergoing treatment and thereafter PW.11 came back to the Police Station and he registered Ext.P11 F.I.R. in Crime No.133 of 1999 of Upputhara Police Station for the offence punishable under Section 324 of IPC. 4. On completing the investigation in the above crime, the police preferred final report, based upon which finally S.C.No.141 of 2003 was instituted. On appearance of the accused after hearing the prosecution as well as the defence, the learned Judge of the trial court, framed a formal charge against the accused/appellant for the offence punishable under Sections 324 and 307 of IPC and also for Section 3, 2 (v) of Crl.A.No.1228 of 2004 :-3-: SC/ST (Prevention of Atrocities) Act, 1989 and when the said charge was read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the trial proceeded further, during which PWs.1 to 14 were examined and Exts.P1 to P16 were marked from the side of the prosecution. MO.1 knife is also identified and marked as material object. No evidence, either oral or documentary was produced from the side of the defence. Though the injured and all other independent witnesses turned hostile towards the prosecution, the learned Judge of the trial court found that the accused had committed the offence punishable under Sections 307 and 324 of IPC. However, it is found that the offence under Sections 3, 2 & (v) of SC/ST Act is not attracted, as there is no evidence and accordingly he is acquitted for the said offence. On the basis of the above finding, the accused/appellant is convicted of the offences under Sections 307 and 324 of IPC and on such conviction he is sentenced to undergo rigorous imprisonment for a term of six years and to pay a fine of `10,000/- and in default he is directed to undergo Crl.A.No.1228 of 2004 :-4-: rigorous imprisonment for a further term of two years for the offence under Section 307 of IPC and also sentenced to undergo rigorous imprisonment for a term of one year for offence under Section 324 of IPC. The sentences are ordered to run concurrently and set off is allowed. It is the above order of conviction and sentence that are challenged in this appeal. 5. I have heard Sri.P.Chandy Joseph, the learned counsel appearing for the appellant and Smt.M.T.Sheeba, the learned Public Prosecutor for the State. 6. As I indicated earlier, to substantiate the prosecution allegation they have examined Pws.1 to 14 and produced Exts.P1 to P16 documents and also produced MO.1 knife. In this case it is relevant to note that, except the official witnesses all other witnesses examined in this case did not support the prosecution and the injured as well as the occurrence witnesses totally turned against the prosecution. PW.1 the injured, when examined, though admitted his signature in Ext.P1 F.I. Statement, had categorically stated before the court that, what was seen recorded in Ext.P1, is not Crl.A.No.1228 of 2004 :-5-: correct. It is true that he had stated some facts as to how he happened to be admitted in the St.Johns Hospital at Kattappana. But, neither in the chief-examination nor in the cross-examination he had made any statement with any imputation against the accused showing any overt act on the part of the accused to commit the offence as alleged in the prosecution case. In this juncture, it is relevant to note that, during the cross-examination conducted by the learned Public Prosecutor, PW.1 in an unequivocal language has deposed before the court that the entire matter involved in the case has been settled with the accused and they were in cordial term at the time of the trial. The net result of the scrutiny of the evidence of PW.1 shows that in his evidence there is no incriminating evidence against the accused. Moreover, it is revealed that the matter is settled between the injured and the accused and they are in a cordial relationship and friendship. Similarly, PWs.2 to 6, who were examined by the prosecution as occurrence witnesses, also turned hostile towards the prosecution. As in the case of PW.1, though the learned Public Crl.A.No.1228 of 2004 :-6-: Prosecutor declared PWs.2 to 6 as hostile and cross-examined them, nothing was brought on record, to implicate the accused. PW.7, an attestor to Ext.P7 scene mahazar and PW.8 another attestor to Ext.P8 mahazar for recovery of MO.1 also did not support the case of the prosecution. It is true, when PW.12, the Doctor, who treated PW.1 and who issued Ext.P12 wound certificate, deposed before the court in terms of Ext.P12 wound certificate. The other official witnesses, namely the Village Officer, who examined as PW.9, PW.10 the Thasildar, Peerumade also deposed in favour of the prosecution. PW.11 the Head Constable and PW.13 the Sub Inspector of Police, who are attached to Upputhara Police Station have also made deposition in favour of the prosecution and when they were examined Exts.P10, P11 and P13, etc. were proved respectively. When PW.14 the Dy.S.P. was examined, he had also deposed in terms of the prosecution case and during his examination Ext.P14 Caste Certificate of PW.1, Ext.P15 production warrant, Ext.P16 property list and confession statement of the accused were marked. Crl.A.No.1228 of 2004 :-7-: 7. Sri.Chandy Joseph, the learned counsel for the appellant vehemently submitted that, though the appellant has undergone an ordeal of trial, no legal evidence is produced by the prosecution to prove the charge against the accused and the trial court went wrong in convicting him in the absence of any cogent and correct evidence. According to the learned counsel, even if the evidence of PW.1 the injured as well as PWs.2 to 6 taken in toto, there is no incriminating evidence or material to warrant a conviction on the basis of the charge levelled against the appellant. It is also the contention of the learned counsel that, as the injured did not support the prosecution and no evidence was adduced, the learned Judge of the trial court ought to have acquitted the accused. But the court below went wrong in concluding that the accused has committed the offence after having conducted a fishing enquiry. So, according to the learned counsel, the judgment of the trial court is liable to be set aside and the appellant is liable to be acquitted. Crl.A.No.1228 of 2004 :-8-: 8. On the other hand, Smt.M.T.Sheeba, the learned Public Prosecutor, on the strength of a decision of the Supreme Court in **Paramjeet Singh @ Pamma Vs. State of Uttarakhand** [2011 AIR SC 200] **,** submitted that, even though PW.1 and other occurrence witnesses turned hostile, the trial court is fully justified in convicting the appellant, since the evidence of the witnesses, though they were declared hostile, is sufficient to convict the appellant. Thus, according to the learned Public Prosecutor, the appeal is liable to be dismissed as the same is devoid of any merit. 9. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have also perused the evidence and materials on record and I have gone through the decision reported in **Paramjeet Singh @ Pamma Vs. State of Uttarakhand** [2011 AIR SC 200] relied on by the learned Public Prosecutor. 10. Having regard to the facts and circumstances involved in the case and in the light of the nature of the evidence on record, the question to be considered is whether ## Crl.A.No.1228 of 2004 :-9-: the trial court is correct and justified in convicting the appellant for the offence punishable under Sections 307 and 324 of IPC. The specific allegation of the prosecution against the accused is that, at 6 p.m. on 17/06/1999 he had inflicted stab injuries by using MO.1 weapon on PW.1. To prove the above incident the prosecution mainly examined PWs.1 to 6 among which PW.1 is the injured and the remaining are the occurrence witnesses. 11. During the chief-examination itself PW.1 has stated that he had sustained injury in an incident, which is the subject matter of the case. He had stated that:- ഞങള തമ�ല Torch light ന� ക�ര�� പറഞ� തര�വ�� ഉന�� തളള�� ഉണ�യ�. അപ!�ള അവ�ന" ഉണ�യ�ര�ന ക�നറ ആള��ര ഞങനള പ�"�ച� മ�റ�ന ഓ"��*"� . പ�"�വല�ക*"�യ�ര�ന ഞ�ന�� പപത�യ�� പ�"�വല� ക*"� Road-ല വ.ണ�. ഓ"��*"�യവര ഞങനള പ�"�ച� മ�റ�. ഞ�ന എഴ�പനറപ!�ള എന� പ2ഹത�ന�ന� പ5�ര ഒഴ�ക�കയ�യ�ര�ന�. എന� വയറത� പര��� പറ�യ�ര�ന�. നല7വണ� ത�ളച�കയറ�യ പര���യ�ര�ന�. എപപക�രമ�ണ പര��� പറ�യത എന� എന��റ�യ�ല7 . പ�"�വല�ക*"� വ.ണത�ല വച�യ�ര���� . ഞങള വ.ണയ�"ത� ക�"ന�� പ�"�വല�ക*"�യ�ര�ന�. അവ�ന"ന�ന�യ�ര�ന� ഞങനള ആള��ര പ�"�ച�മ�റ�യത. Crl.A.No.1228 of 2004 :-10-: 12. After declaring PW.1 as hostile, the learned Public Prosecutor was permitted to cross-examine PW.1 and during such cross-examination, he had stated that he did not remember what were all statements given to the police. He said that he knew that he had put his signature in the statement prepared by the police and he identified the signature as well. But he had stated that he did not remember the contents of Ext.P1 and the same has not read over to him. He has deposed before the court that as the police asked him to put his signature, he put the same. He further stated that he was not remembering as to what stated before the court is in terms of what stated before the police. During the crossexamination of PW.1 he has deposed :- പപത� മ"�� പ�"�ച ക�"യ�ല ന�ന� ഒര� മല!�റ� കത� എ"�ത� ന�ങനള ക�ത� എന� PI അ�നമ�ഴ�യ�ല പറഞ� ക�ണ�നത ശര�യ�പണ� (Q). അപപക�ര� പറഞ�പവ� എന� ഞ�ന ഓര��ന�ല7 .(A). പറഞത�യ� ക�ണ�ന വ�വര� ശര�യ�പണ�(Q) ശര�യല7.. Witness adds പ�"�വല� ഉണ�യത�ന�"യ�ല എനന�ന� ന"ന� എന� എന��റ�യ�ല7. Crl.A.No.1228 of 2004 :-11-: ## Further PW.1 has stated that : പകസ�ക�ര�ങള ഞ�ന�� പപത�യ�മ�യ� പറഞ� ത.രത�. ഞങള ഇപ!�ള പല�ഹ@ത�ല�ണ. 13. Similarly, when PWs.2 to 6 were examined, as I indicated earlier, they also turned hostile towards the prosecution. So, even if the evidences of PWs.1 to 6 are taken together, according to me, such evidences are not sufficient to enter into a finding that the accused have committed the offence as charged against them. Even if it is admitted for the sake of argument, the accused was in possession of MO.1 knife in the given facts and circumstances of the case and the available evidences, according to me, it cannot be said that the prosecution has succeeded in proving that the accused inflicted injury on PW.1 by using such weapon. It is true PW.12 has deposed before the court about the injuries noted on PW.1 and given an opinion. Due to derth of evidence from the part of the prosecution, either through the evidence of PW.1 or through PWs.2 to 6 showing the overt act of the Crl.A.No.1228 of 2004 :-12-: accused in inflicting the injury on PW.1, it is not safe to convict the appellant simply for the reason that PW.12 Doctor certified that the injury noted on PW.1 was caused by using MO.1. According to PW.1 connected with the dispute of torch, there was a scuffle and both the PW.1 as well as the accused fell on the ground and they rolled on the ground. So, the possibility of injury on PW.1, even in the absence of an overt act from the side of the accused, cannot be ruled out. When PW.1 has deposed before the court that he was not remembering as to what all stated before the police while he endorsing his signature upon Ext.P1, according to me, and particularly when he swears that he put the signature as identified by the petitioner it cannot be said that he had deviated from Ext.P1 statement and giving a different version before the court below. So, according to me, to prove the incident, there is absolutely no legal and satisfactory evidence. 14. It is further relevant to note that one of the circumstances, pressed into service by the police for canvassing a conviction, is about the recovery of MO.1 weapon. Crl.A.No.1228 of 2004 :-13-: According to me, no evidentiary value can be attached for such recovery. It is relevant to note that the date of occurrence was on 17/06/1999 and the police could not arrest the accused as part of their investigation and no recovery was effected at that point of time. After the release of the appellant/accused on bail, and at the instance of the trial court on the basis of Ext.P15 production warrant, the recovery was effected. That too, after two months from the date of the occurrence. No acceptable evidence or explanation is given by PW.14, which prompted him to file Ext.P15 production warrant and get the custody of the accused to get effected the recovery. It is also relevant to note that, though the recovery was said to have effected on 21/08/1999, MO.1 knife was produced before the court after three months from the date of such recovery. No explanation is forthcoming for such a long delay in producing MO.1. So, one of the incriminating circumstance and evidence relied on by the prosecution to implicate the accused in the crime is highly shabby in nature. In the light of the above discussion, the evidence and materials referred above, Crl.A.No.1228 of 2004 :-14-: according to me, are not sufficient to substantiate the prosecution allegation against the appellant/accused. 15. Moreover, from the deposition of PW.1, it is crystal clear that, whatever may be the difference of opinion and the dispute between the accused and PW.1, who are neighbours, are settled out of court and at the time of the trial they were on cordial terms. If that be so, according to me, the trial court has committed a wrong in convicting the appellant through a fishing enquiry, in spite of the settlement arrived into between the parties and especially when the evidences on records are not cogent and satisfactory, for warranting a conviction. The learned Public Prosecutor, as I indicated earlier relying upon the decision reported in **Paramjeet Singh @ Pamma Vs. State of Uttarakhand** [2011 AIR SC 200] submitted that, even if the matter is settled out of court and the witnesses have turned hostile, the available evidences, which are in favour of the prosecution, can be considered and there is no illegality in convicting the accused. According to me, the facts and circumstances involved in the decision cited supra, do not tally Crl.A.No.1228 of 2004 :-15-: with the facts and circumstances involved in the present case. In this case, the injured, appeared before the court and deposed about the incident and no incriminating evidence is forthcoming through such deposition and he had further stated before the court that the dispute is settled. It is also relevant to note that, even according to the prosecution, the incident in the present case occurred connected with the dispute of a torch between two neighbouring persons and the injured sustained injury. But in the case cited above, it can be seen that three persons were murdered and three persons had sustained serious injuries. On a reading of paragraph 35 of the aforesaid decision of the Supreme Court, we can easily understand the gravity of the offence committed by the accused in the above said case and that too connected with the property dispute. But in the present case, as I indicated earlier, the injured himself came forward stating that the matter is settled out of court and he has no grievance and the incident had taken place connected with a dispute of torch and now the parties to the dispute are in cordial terms. Crl.A.No.1228 of 2004 :-16-: 16. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012(4) KLT 108(SC)] in which the Supreme Court has held as follows:- “57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz;(i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.. ## It is further held as follows:- “......... But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial,mercandile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or Crl.A.No.1228 of 2004 :-17-: personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim........” According to me, in the light of the dictum laid down by the Supreme Court in the above latest decision, the duty of the court is to promote the settlement arrived between the parties rather to leave them to live in loggerheads and to pave way for further untoward incident. In the light of the above discussions and the evidences and materials referred above and in view of the decisions cited supra, according to me, the trial court is not justified in convicting the appellant/accused and therefore the conviction recorded by the trial court is liable to be set aside and I do so. In the result, this appeal is allowed acquitting the appellant/accused of all the charges levelled against him and the judgment dated 29/07/2004 in S.C.No.141 of 2003 of the Crl.A.No.1228 of 2004 :-18-: court of Sessions Judge, Thodupuzha is set aside and the bail bond, if any, executed by the appellant/accused stands cancelled and he is set at liberty. The trial court is directed to release the amount, if any, deposited by the appellant in terms of the order passed by this Court on 30/07/2004 in Crl.M.Appln.No.8552 of 2004, to the appellant/accused forthwith, on moving an application in this regard. **V.K.MOHANAN, JUDGE** skj