Soman Chakirikad Valiyapparambu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945** **CRL.REV.PET NO. 222 OF 2004** **AGAINST SC 75/2002 OF I ADDITIONAL ASSISTANT SESSIONS** **COURT, KOZHIKODE** ## **REVISION PETITIONER/DEFACTO COMPLAINANT:** **SOMAN CHAKIRIKAD VALIYAPARAMBU, 13/2316, BALASOUDHAM, KOZHIKODE** **BY ADVS.** **SRI.C.S.SUNIL SRI.P.R.SREEJITH SRI.ARJUN SREEDHAR** ## **- RESPONDENTS/ACCUSED 1 4 & STATE:** - **1 K.G.SANTHOSH** **S/O GOVINDAN, KALLUVALLI VEEDU, 12/407, NEAR PARAPURAM TEMPLE, BEEPOOR AMSOM, KOZHIKODE** - **2 A.P.HABEEB S/O MUHAMMED** **ERANHIVAYAL VEEDUM, ARAKINAR, BEPOOR,KOZHIKODE** - **3 A.P.BEERANKOYA S/O MOIDEENKOYA** **EHERAKUNNITHAZHAMPARAMBU, BEEPOOR, KOZHIKODE.** - **4 V.PRAKASAN S/O CHERUTTY** **VENNAKKADU VEEDU, NEDUMPURAPARAMBU, BEPOOR, KOZHIKODE** Crl.R.P. No.222/04 **-:2:-** **5 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY ADVS. SRI.K.A.NOUSHAD, PUBLIC PROSECUTOR SRI.P.V.ANOOP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.07.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-:3:-** Crl.R.P. No.222/04 ## **BECHU KURIAN THOMAS, J. --------------------------------Crl.R.P. No.222 of 2004 ---------------------------------** Dated this the 10[th] day of July, 2023 ## **ORDER** The revision petitioner was the defacto complainant in Crime No.121 of 1999 of Beypore Police Station. After investigation, the final report was filed alleging offences punishable under section 307 r/w section 34 of the Indian Penal Code, 1860, apart from sections 3 and 5 of the Explosive Substances Act, 1908. Cognizance was taken and after committal, the case was numbered as S.C. No.75 of 2002 on the files of the First Additional Assistant Sessions Court, Kozhikode. By judgment dated 11.07.2003, the learned Sessions Judge acquitted all four accused in the case. Aggrieved by the acquittal, this revision petition has been preferred by the defacto complainant. 2. Prosecution alleged that on 26.08.1999 at about 2 a.m., the accused had, in furtherance of their common intention to murder the defacto complainant, came to the courtyard of his dwelling house **-:4:-** Crl.R.P. No.222/04 and, after calling him from outside, threw an explosive substance on PW1 when he came out and thereby committed the offences alleged. 3. The prosecution examined PW1 to PW10 and marked Ext.P1 to Ext.P6(a), and material objects MO1 to MO3. The defence, though did not examine any witness, marked Ext.D1 and Ext.D2, which are section 161 statements of two of the witnesses. After analysing the evidence adduced in the case, the learned Additional Assistant Sessions Judge came to the conclusion that the prosecution had not proved its case beyond reasonable doubt, and hence acquitted all the accused. 4. Since the State did not prefer an appeal against the order of acquittal, the defacto complainant filed this revision petition, which was admitted on 08.03.2004, but the records of the case were called for only on 14.11.2014. It is noticed from the report of the Registry of this Court that the records of the case was received on 03.12.2012 pursuant to a letter dated 29.11.2012 and that there is no endorsement of calling for records on 14.11.2014. The case came up for consideration only on 01.02.2018. When the lower court records were received, it was noticed that the depositions of the witnesses were not available in the records. Reports were therefore Crl.R.P. No.222/04 **-:5:-** called for. By letter dated 24.06.2016, the Principal Sub Judge, Kozhikode, informed that while preparing the records, the record clerk had noticed that the depositions of PW1 to PW10 had been destroyed without noticing the pendency of the appeal ( _sic_ ). Since the records were urgently called for by the High Court, the available records were forwarded. 5. The report further stated that even though intimation of the appeal ( _sic_ ) was received as early as on 30.09.2004, the records were destroyed during the mid-summer vacation of 2009, ignoring or without noticing the appeal ( _sic_ ) intimation. Thereafter, action was initiated against the record clerk, and he was punished in the disciplinary proceedings. In the meantime, steps were initiated to reconstruct the missing depositions. However, it was reported that neither the defacto complainant, nor the accused, and not even the Investigating Officer, had obtained certified copies of the depositions. Records were verified to confirm the aforesaid, and it was noticed that certified copies were not issued to any person. Thus, all attempts to reconstruct the depositions of PW1 to PW10 and the documents marked in evidence were futile. 6. On 06.06.2018, a learned Single Judge of this Court Crl.R.P. No.222/04 **-:6:-** observed that the grounds of revision in the memorandum of criminal revision petition will show that the whole grounds are about the deposition of the material witnesses given in the trial court. It was observed as below: “ _This means that the revision petitioner/the learned counsel had all the depositions in possession when the memorandum of revision was prepared. If the revision petitioner wants to prosecute the revision, let him produce the copies of the depositions of the material witnesses._ ” 7. Again, on 27.07.2018, it was noticed by the learned Single Judge that the depositions of witnesses and the documents proved in court are not available for appreciation and that in such a situation, the court will have to think of exercising the appellate powers as authorized under section 401 Cr.P.C. It was also observed as follows: _“When there is no material before this court, a decision cannot be taken. Then the only alternative is to order a re-trial. Both the parties will work on the legal issue and address the court whether an order for re-trial in the present circumstances is possible. Post after two weeks.”_ 8. Thereafter, the case came up on 08.01.2020 and then after several adjournments, it was taken up for final consideration. **-:7:-** Crl.R.P. No.222/04 9. I have heard Sri.Arjun Sreedhar and Adv.Veena, learned counsel for the revision petitioner and Sri.P.V.Anoop and Adv. Anju R.S, learned counsel for respondents 1 to 4. I have also heard Sri.K.A.Noushad, the learned Public Prosecutor, on behalf of the 5[th] respondent. 10. The learned counsel for the revision petitioner vehemently contended that the entire appreciation of evidence by the trial court was totally flawed since PW1 had specifically identified the accused in the case. It was also pointed out that the omission on the part of PW2 to mention the name of the accused while giving the FI statement ought not to have been regarded as a significant omission since, even going by her deposition, she had not seen the accused and could never have named the accused persons. According to the learned counsel, since the injuries sustained by PW1/the defacto complainant were so severe, the learned Sessions Judge ought not to have acquitted the accused. It was also submitted that discarding the evidence of PW1 was totally perverse as he had specifically identified each of the accused by name and in court. 11. The learned counsel for respondents 1 to 4, on the other hand, submitted that the trial court had properly appreciated the Crl.R.P. No.222/04 **-:8:-** evidence in the case and, considering the nature of jurisdiction exercised by the revisional court, that too against an order of acquittal, interference even for the purpose of remand would not do justice to the facts of the case. The learned counsel, referring to the findings in the judgment of the Sessions Judge, submitted that the trial court had appreciated and considered the evidence of each and every witness and, after noticing the discrepancy in the evidence of the witnesses, came to the conclusion that there was no proper identification of accused and hence the benefit of doubt must go in favour of respondents 1 to 4. 12. The learned Public Prosecutor also addressed the court and submitted that the State had not preferred an appeal. However, the trial court had committed an error in appreciation of evidence and therefore, the matter ought to be remanded back. 13. I have considered the rival contentions. 14. The scope of interference under section 397 Cr.P.C. in the exercise of revisional jurisdiction is limited. As is evident from section 401(3), the High Court cannot, while exercising the revisional jurisdiction, convert a finding of acquittal into one of conviction. Therefore in the event of this Court coming to the conclusion that the Crl.R.P. No.222/04 **-:9:-** trial court's judgment is irregular and improper, the only remedy available would be to remand the case. However, in the instant case, the record of depositions of PW1 to PW10 and the documents that were marked in evidence were destroyed in 2009 itself. Even if the arguments of the learned counsel for the revision petitioner are accepted in their entirety, the only remedy available to this Court now is to remand it for a fresh trial. Even in such circumstances, the documents are not available. Further, the incident is alleged to have occurred on 26.08.1999. Almost 24 years have elapsed since the date of incident. To order a retrial at this distance of time would prejudice the accused as well as the prosecution. 15. In this context, a reference to the decision in **Akalu Ahir v. Ramdeo Ram** (AIR 1973 SC 2145) would be appropriate. In the said decision, the Supreme Court observed that in a revision preferred by a private complainant, the High Court is not entitled to re-apprise the evidence for itself as if it is acting as a court of appeal and then order a retrial. It was also observed that normally retrial should not be ordered unless there is some infirmity rendering the trial defective. The following observations are relevant: “ _No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free_ Crl.R.P. No.222/04 **-:10:-** _from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a Court of appeal and then order a re-trial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court.”_ 16. In the instant case, there is nothing that indicates that the trial was defective and, on the other hand, the trial was properly conducted. The illegality committed by the records clerk in destroying the depositions of PW1 to PW10 and the documents therein cannot be attributed to the accused, as the disciplinary proceedings did not reveal any such involvement. Therefore, ordering a re-trial at this distance of time would cause serious prejudice to the right of fair trial to the accused. 17. Despite efforts taken by the courts to reconstruct the file, the same became impossible since none of the parties had taken the certified copies of the depositions of the documents. **-:11:-** Crl.R.P. No.222/04 18. Even though learned counsel for the revision petitioner vehemently contended on merits that the appreciation of evidence of prosecution witnesses was totally flawed, it was frankly submitted that the said argument was built upon the observations in the judgment and not with reference to the depositions. The learned counsel for the respondents on the other hand submitted that the analysis of evidence by the trial court needs no interference. This Court is handicapped in appreciating the contentions of the learned counsel for both parties due to the absence of the depositions and the documents. 19. In this context, the judgment in **Ramu and Others v. Jagannath** (AIR 1994 SC 26) is also apposite. It was observed in the said decision that “ _it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complainant. This Court in number of cases has reiterated this view. In the instant case the occurrence is said to have taken place some time prior to 1977. We are not satisfied with the reason on which the High Court has interfered in the said revision. The question is whether the matter is to be sent back to the High Court so that the High Court could go into_ Crl.R.P. No.222/04 **-:12:-** _the merits in the revision. After a long lapse of time, i.e., nearly one and a half decades, we do not propose to confirm the order of the High Court with regard to remanding the appeal to the Sessions Court for the purpose of hearing the same once again.”_ 20. As it is evident from the above observations, a case where the incident occurred one and a half decades ago was found by the Supreme Court as not fit enough to be remanded to the Sessions Court. Taking cue from the above observations, this Court is of the view that since the incident occurred two and a half decades ago, it will not be conducive in the interest of all to remand the matter for a fresh trial. In the above circumstances, this criminal revision petition fails and it is dismissed. Sd/- **BECHU KURIAN THOMAS JUDGE** vps /True Copy/ PS to Judge