Sreedharan v. State of Kerala and Others

CRL.A NO. 621 OF 2006 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** **CRL.A NO. 621 OF 2006** **AGAINST THE ORDER/JUDGMENT IN CC 84/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM, PALAKKAD APPELLANT/COMPLAINANT &PW1:** SREEDHARAN S/O RAMAN NAIR, VETTATH VEEDU, KUDALLUR AMSOM, KUMBIDI DESOM,, OTTAPALAM TALUK. BY ADV SRI.SANTHEEP ANKARATH ## **RESPONDENT/S:** 1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 GOPI, JEEP DRIVER, KERALA WATER AUTHORITY, P.H.SECTION NO. I, SHORANUR,, PALAKKAD DISTRICT. 3 P.S.VIJAYAN, ASST. EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.SUB DIVISION,, SHORANUR, PALAKKAD DISTRICT NOW WORKING AS SUPRENDING ENGINEER, O/OF THE SUPRENDING ENGINEER,, KERALA WATER AUTHORITY, P.H.CIRCLE, THRISSUR. 4 T.S.MOHANAN ,ASST.ENGINEER KERALA WATER AUTHORITY, P.H.SECTION NO.I,, SHORANUR, PALAKKAD DISTRICT, NOW WORKING AS, ASSISTANT ENGINEER, KERALA WATER AUTHORITY,, P.H.SECTION, CHELAKKARA, THRISSUR DISTRICT. 2 CRL.A NO. 621 OF 2006 BY ADVS. PUBLIC PROSECUTOR SRI.P.SANTHOSH PODUVAL SRI.P.VIJAYA BHANU ## **OTHER PRESENT:** SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 621 OF 2006 3 ## **K.BABU J.** ---------------------------------------------Crl. Appeal No.621 of 2006 ----------------------------------------------Dated this the 23[rd] day of July, 2021 ## JUDGMENT This appeal is filed against the judgment dated 01.12.2005, acquitting respondents 2 to 4 (accused numbers 1 to 3 in the trial court) of the offences punishable under sections 447, 341, 323, 324 read with 34 IPC, in CC No.84/2004 passed by the Judicial First Class Magistrate Court, Ottappalam. The appellant is the complainant in the court below and respondents 2 to 4 are the accused 1 to 3. 2. The brief facts of the case are narrated below: 3. The complainant was employed as Pump Operator at the Pump House, Shornur. A1 is a jeep driver employed in the Kerala Water Authority. A2 and A3 are Assistant Executive Engineer and Assistant Engineer respectively of the Kerala Water Authority PH Section I, Shornur. On 09.03.1998, while the complainant was on duty at the Pump House, A2 and A3 came to the Pump House, opened the door, entered inside and asked for the log book. After verifying the log book, A2 and A3 asked the complainant why pumping was not done on the previous day. The complainant replied that since there was no light in the Pump House, pumping could not be done. Then there occurred an altercation between the complainant and A2 and A3. At that time A1 rushed to the scene and fisted at his face and voluntarily CRL.A NO. 621 OF 2006 4 caused injury on his left eye. A1 again fisted on his forehead. The complainant made an attempt to escape from the scene but A1 restrained him. A2 and A3 caught hold on his hand and restrained him. Thereafter A1 beat on his head using the lid of a drum kept in the Pump House. The complainant sustained bleeding injuries. 4. The Shornur Police registered FIR No.62/1998 against A1 on the basis of the complaint lodged by the complainant. Since the Police omitted to implead A2 and A3, the complainant instituted a private complaint before the court below. 5. The learned Magistrate took cognizance of the offences alleged. A1 to A3 appeared before the court below on service of summons. Charges were framed against them for offences under sections 341, 323 and 324 read with 34 IPC. They pleaded not guilty to the charges. The learned Magistrate proceeded with trial of the case. Prosecution examined PWs 1 to 4 and proved Exts.P1 to P3 and MO1. From the side of the defence Exts.D1 to D3 were marked. After completion of the trial, the learned Magistrate, in view of the contradictions and discrepancies in the deposition of the witnesses, held that the prosecution failed to prove the case against the accused beyond reasonable doubt. The learned Magistrate, therefore, held that the accused were entitled to benefit of doubt and accordingly they were acquitted. 6. The said judgment of acquittal is impugned in this appeal. CRL.A NO. 621 OF 2006 5 7. The learned counsel for the complainant submitted that the oral evidence of PWs 1 and 3 corroborated by Ext.P1 is sufficient to establish the case against the accused. 8. The learned counsel for A1 to A3, per contra, contended that in view of the contradictions and discrepancies in the deposition of PWs 1 and 3 it could be concluded that the prosecution failed to establish the case against the accused beyond reasonable doubt. 9. The only point that arises for consideration is whether the judgment of acquittal passed by the court below warrants interference or not. ## **The point** 10. The case of the complainant is that on 09.03.1998 at about 1’o clock in the night while he was on duty at the Pump House at Shornur A2 and A3 entered into the Pump House and asked for the log book maintained by him and questioned him as to why pumping was not done on the previous day for which he replied that since there was no light in the Pump House, he could not do pumping. According to the prosecution, an altercation occurred there between himself and A2 and A3 and at that time A1 rushed to the scene and fisted on his face in which he sustained injury. The further case of the prosecution is that A1 to A3 voluntarily caused hurt to him in furtherance of their common intention. 11. In support of the prosecution case the complainant himself CRL.A NO. 621 OF 2006 6 gave evidence as PW1. He had given evidence in tune with the complaint. The copy of the accident register cum wound certificate was marked as Ext.P1. The lid of the drum, the weapon allegedly used by A1, was marked as MO1. PW3, a witness examined from the side of the prosecution, also supported the version of the complainant. 12. The case of the accused is that they have been falsely implicated due to enmity resulted from the fact that as part of their official discharge of duties they inspected the Pump House on the basis of a complaint that no pumping was done on the previous day and they had made an endorsement in the log book asking the complainant to furnish explanation as to why pumping was not done. 13. The case of the complainant was resisted by the accused mainly relying on Ext.D1, the FIS given by the complainant himself to the Police and Ext.D2, the complaint lodged by the complainant to the Executive Engineer on 10.03.1998 wherein the names of A2 and A3 were absent. 14. The learned Magistrate relied on the following circumstances to record a finding that the prosecution has not proved the case against the accused beyond reasonable doubt. a) In Ext.D1 FIS lodged before the Police by the complainant and in Ext.D2 the complaint dated 10.03.1998 submitted by the complainant before the Executive Engineer, Kerala Water Authority, Shornur, A2 and A3 were not implicated. No allegations CRL.A NO. 621 OF 2006 7 were made against A2 and A3 in Exts.D1 and D2. - b) Though PW1 had given evidence that initially he had gone to the Government Hospital at Shornur, no material had been produced before the court below to establish that he had obtained treatment at the Hospital. And he was treated at Divine Hospital, Wadakkanherry. - c) The credibility of PW3, an independent witness examined to prove the incident proper, is doubtful. - d) The case of the defense is more probable in view of the admission of the complainant to the effect that on the relevant day an endorsement was made by A2 in the log book maintained by him seeking him to show cause why pumping was not effected on the previous day. 15. I have gone through the oral evidence of PWs 1 to 4 and the documents produced from both sides. 16. Ext.D2, the complaint lodged by the complainant before the Executive Engineer, Kerala Water Authority, Shornur is the earliest statement of the complainant regarding the incident wherein there was no mention of any overtact allegedly committed by A2 and A3. Ext.D1, the FIS lodged by the complainant before the Shornur Police also, is silent regarding any of the overtact allegedly committed by A2 and A3. The explanation given by PW1 is that he could not read the contents of Exts.D1 and D2 as he had a vision defect consequent to CRL.A NO. 621 OF 2006 8 the injuries sustained by him in the incident. According to PW1, in Ext.D1 the Police deliberately omitted the names of accused Nos.2 and 3 even though he had mentioned their names and the overtact committed by them. I am unable to accept this as a credible explanation especially in view of the fact that Ext.D2 being the very earliest statement given by the complainant before the Executive Engineer also lacked any of the overtacts allegedly committed by A2 and A3. The learned Magistrate has given much reliance to these discrepancies in the version of the complainant while recording a finding that the prosecution failed to establish the offences against the accused beyond reasonable doubt. 17. The complainant had given evidence that immediately after the incident he had gone to the Government Hospital, Shornur where he was advised to seek expert management in Ophthalmology as he had severe injuries on his left eye. It is pertinent to note that no evidence has been adduced to show that he had gone to the Government Hospital, Shornur and more over Ext.P1 would show that the complainant obtained medical treatment at Divine Hospital, Wadakkancherry where service of one Doctor, having MBBS alone was available. The resultant conclusion is that the version of the complainant regarding the averment that he had initially obtained treatment at Government Hospital, Shornur is not acceptable. 18. PW3 is an independent witness examined to prove the CRL.A NO. 621 OF 2006 9 incident proper. The incident occurred in the midnight. He has given evidence that he could witness the incident with the aid of the tube light inside the Pump House. The evidence of PW1 would show that on 08.03.1998 pumping was not effected as there was no light and unavailability of light was brought to the notice of the superiors. In view of this inconsistency the credibility of PW3 is doubtful. 19. PW1 specifically admitted in his evidence that on the relevant day at about 8PM when he came for duty he found that the log book had an endorsement made by A2 seeking his explanation as to why pumping was not done on the previous day. 20. The learned Magistrate on appreciation of all the facts and circumstances of the case entered into a conclusion that the defense version is more probable and found that the accused were entitled to benefit of doubt. 21. The learned counsel for the accused contended that the accused having been acquitted by the trial court are entitled to the presumption of innocence and further that the accused having secured their acquittal the presumption of their innocence is further re-affirmed and strengthened by the trial court. The learned counsel for the accused further submitted that if two reasonable conclusions are possible on the basis of the evidence on record the appellate court should not disturb the finding of acquittal recorded by the trial court. 22. The apex court in Chandrappa and others vs. State of CRL.A NO. 621 OF 2006 10 Karnataka [(2007) 4 SCC 415] following various authorities on the subject deduced the general principles, regarding the powers of appellate court while dealing with an appeal against an order of acquittal, as follows: - (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. - (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. - (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 23. For acquitting the accused and extending the benefit of doubt, the trial court observed that oral evidence of PW1, the CRL.A NO. 621 OF 2006 11 complainant, lacks credibility due to discrepancies and inconsistencies in his version. The learned Magistrate indicated that the possibility of false implication cannot be ruled out in view of the admission of the complainant that accused Nos.2 and 3 on the relevant day had made an endorsement in the log book maintained by him seeking explanation from him as to why pumping was not effected on the previous day. The learned Magistrate applied sound reasons to disbelieve the version of PW3, the only eye witness in the incident. 24. In my view, if in the light of the above circumstances, the trial court felt that accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, I am of the considered view that, the view taken by the trial court for acquitting the accused was possible and plausible. The learned counsel for the appellant/complainant relying on Ext.P1 accident register cum wound certificate contended that the prosecution could succeed its case beyond reasonable doubt on the basis of the evidence. At the most it can be said that the view raised by the learned counsel for the appellant was also equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court it ought not to be disturbed by the appellate court. In the instance case, a possible view, on the evidence of prosecution, has CRL.A NO. 621 OF 2006 **==> picture [13 x 9] intentionally omitted <==** been taken by the trial court which shall not be disturbed by the appellate court. For the above said reasons the appeal lacks merits. In the result the appeal is dismissed. Sd/- **K.BABU, JUDGE** rkc