State of Kerala rep. by Public Prosecutor v. Babu S/o Krishnan

CRL.A.839/2005 & Crl.Rev.Pet.453/2004 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942** **CRL.A.No.839 OF 2005** **AGAINST THE JUDGMENT IN CRL.A NO.621/2000 DATED 25-06-2003 OF III ADDITIONAL SESSIONS JUDGE, THRISSUR** **AGAINST THE ORDER IN SC 82/1997 DATED 22-12-2000 OF ADDITIONAL ASST. SESSIONS JUDGE, IRINJALAKUDA** ## **APPELLANT:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SUMODU.P.N** **RESPONDENT:** **BABU S/O.KRISHNAN, PUNNAKKAPARAMBIL HOUSE, ERIYAD VILLAGE, KODUNGALLUR.** **R1 BY ADV. SRI.PRASUN.S R1 BY ADV. SRI.P.M.RAFIQ R1 BY ADV. SRI.P.VIJAYA BHANU** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2020, ALONG WITH Crl.Rev.Pet.453/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.839/2005 & Crl.Rev.Pet.453/2004 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942** ## **Crl.Rev.Pet.No.453 OF 2004** **AGAINST THE JUDGMENT IN CRL.A NO.621/2000 DATED 25-06-2003 OF III ADDITIONAL SESSIONS JUDGE, THRISSUR** **AGAINST THE ORDER IN SC 82/1997 DATED 22-12-2000 OF ADDITIONAL ASST. SESSIONS JUDGE, IRINJALAKUDA** ## **REVISION PETITIONER/APPELLANT:** **K.V.PRABHAKARAN, S/O.VELAYUDHAN, MANAVALASSERRY, MUKUNDAPURAM TALUK.** **BY ADV. SRI.M.R.VENUGOPAL** ## **RESPONDENTS:** **1 BABU, S/O.KRISHNAN, PUNNAKKAPARAMBIL HOUSE, ERIYAD VILLAGE, KODUNGALLUR.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.M.RAFIQ R1 BY ADV. SRI.P.VIJAYA BHANU** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.09.2020, ALONG WITH CRL.A.839/2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.A.839/2005 & Crl.Rev.Pet.453/2004 3 ## **JUDGMENT** **[ CRL.A.839/2005, Crl.Rev.Pet.453/2004 ] Dated this the 28th day of September 2020** Crl.A No.839/2005 was filed by the State challenging the acquittal order dated 25.6.2003 in Crl.A No.621/2000 on the file of the III Additional Sessions Judge, Thrissur. The prosecution witness No.2, who is the injured in this case filed Crl.R.P. No.453/2004 challenging the same judgment. Therefore, these Criminal Appeal and the Criminal Revision Petition are disposed of by a common judgment. (Hereinafter the parties are mentioned in accordance to their rank before the trial court). 2. The above case is chargesheeted by the Circle Inspector of Police, Iringalakkuda alleging offences punishable under Sections 447 and 307 r/w 34 IPC. 3. The prosecution case is that on 12.4.1995 at 9.30 pm both the accused in furtherance of their common intention to commit murder of prosecution witness No.2 came in a motor bike bearing registration No.TN-045958 and the 1[st] accused trespassed into the courtyard of the house belonging to the PW2. PW2 was CRL.A.839/2005 & Crl.Rev.Pet.453/2004 4 reading a weekly by sitting in a cane chair in the varandha portion of his house. PW1 the wife of PW2 was there along with him. At that time, it is alleged that the accused came from behind and inflicted a stab injury using a knife. Thereafter the 1[st] accused ran away with the weapon and escaped in a bike driven by the 2[nd] accused. 4. To substantiate the case, the prosecution examined PW1 to PW13. Exts.P1 to P13 are marked on the side of the prosecution. MO1 to MO4 are the material objects. Ext.D1 is marked from the side of the defence. 5. After going through the evidence and the documents, the trial court found that the 1[st] accused committed the offence under Sections 447 and 307 IPC. The 2[nd] accused was found not guilty. The 1[st] accused was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.30,000/-. In default of payment of fine, the 1[st] accused was sentenced to undergo simple imprisonment for one year. Aggrieved by the conviction and sentence, the 1[st] accused filed appeal before the Sessions Court, Thirssur. The III Additional Sessions Judge, Thrissur considered the appeal. The appellate court found that the conviction and sentence imposed on the 2[nd] appellant is not correct. Hence the learned Sessions Judge allowed the appeal CRL.A.839/2005 & Crl.Rev.Pet.453/2004 5 setting aside the conviction and sentence. Aggrieved by the above judgment, the State and injured in this case, who was examined as PW2 before the trial court, came up before this Court with an appeal and a revision. 6. Heard the learned Public Prosecutor and the learned counsel for the revision petitioner. I also heard the counsel for the 1[st] respondent. 7. The Public Prosecutor submitted that the appellate court judgment is perverse. The Public Prosecutor submitted that the appellate court allowed the appeal on flimsy reasons. The Public Prosecutor submitted that the oral evidence of PW1 to PW3 and the medical evidence in this case proved the offence against the 1[st] accused and there is nothing to disbelieve the evidence of PW1 to PW3. The Public Prosecutor submitted that the prosecution witness No.2 sustained a very serious injury on his chest. It is a penetrative injury. The Public Prosecutor submitted that in such situation, the appellate court erred in allowing the appeal on flimsy reasons. The Public Prosecutor submitted that the grounds for the acquittal order passed by the appellate court are perverse and this Court may interfere against that order. 8. I heard the learned counsel for the revision petitioner CRL.A.839/2005 & Crl.Rev.Pet.453/2004 6 also. 9. The learned counsel for the revision petitioner supported the contentions of Public Prosecutor. The counsel submitted that the findings of the appellate court are perverse and this Court may kindly set aside the acquittal order passed by the appellate court. 10. The learned counsel for the accused submitted that this is an appeal against acquittal. The counsel relied the judgment of **Bannareddy and others v. State of Karnataka and other** s ( **2018 KHC 6200)** and **State of Uttar Pradesh v. Wasif Haider (2018 KHC 6982)** . The counsel submitted that once the accused is acquitted, the presumption of innocence is strengthened. Therefore, this Court may not interfere against the acquittal order passed by the appellate court. The counsel also submitted that this is a case in which divergent views are there. The counsel submitted that, that itself is a ground to dismiss the above appeal. The counsel submitted that the appellate court appreciated the evidence in detail and after reconsidering the entire oral and documentary evidence came to the conclusion that the accused is not guilty of the offence alleged. Therefore, the appellate court allowed the appeal and was pleased to set aside the conviction and sentence. In such CRL.A.839/2005 & Crl.Rev.Pet.453/2004 7 circumstances, the counsel submitted that this Court may not interfere in an appeal against acquittal. 11. The counsel submitted that the appellate court mainly relied seven points for allowing the appeal. The counsel submitted that these grounds are valid grounds and the appellate court perfectly justified in setting aside the conviction and sentence imposed on the 1[st] accused. The counsel submitted that this appeal and revision may be dismissed, confirming the acquittal order passed by the appellate court. 12. The point for consideration in this appeal is whether the acquittal order passed by the appellate court as per the impugned judgment is correct or not. 13. It is a settled position that this Court can interfere in an appeal against the acquittal only if there is any fatal defects in the order passed by the trial court. It is also a settled position that the presumption of innocence of the accused will further reinforced, reaffirmed and strengthened once he is acquitted. It is also settled that the appellate court should not interfere to a well reasoned order of acquittal passed by the trial court which has been arrived after proper appreciation of evidence. These are settled position regarding the jurisdiction of the appellate court in interfering in an appeal against acquittal. In **Perla** CRL.A.839/2005 & Crl.Rev.Pet.453/2004 8 ## **Somasekhara Reddy & others v. State of Andra Pradesh** **(2009)16 SCC 98)** the Apex Court after considering the entire decisions on this point as on that day observed like this: “15. Bare reading of Section 378 of the Present Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.” 14. Based on the dictum laid down by the Apex Court in the above judgment, I will consider this appeal against acquittal. 15. Altogether 13 witnesses were examined in this case by the prosecution. PW1 is the wife of PW2. PW1 gave Ext.P1 FI Statement. PW2 is the injured in this case. PW3 is the daughter of PW1 and PW2. PW4 is a neighbor and he is not an eye witness in this case. PW5 turned hostile. PW6 is only a mahazar witness. PW7 is also a mahazar witness. PW8 is also examined to prove the seizure mahazar. PW9 is the Village Officer through whom Ext. P7 sketch is marked. PW10 is the doctor attached to Aswani Hospital through whom Ext. P8 is marked. PW11 is the ASI, who recorded the FI Statement. PW12 is the Investigating Officer. PW13 is the doctor through whom Ext. P13 wound CRL.A.839/2005 & Crl.Rev.Pet.453/2004 9 certificate is marked. The doctor, who examined the PW2 is no more. Therefore, Ext.P13 wound certificate is marked through PW13. 16. PW1 to PW3 gave oral evidence, in support of the prosecution case. PW10 and PW13 coupled with Exts.P8 and P13 will prove the injury sustained to PW2. The appellate court acquitted the 1[st] accused in this case, mainly for the following reasons.; 1. In Ext. P13 wound certificate, there is a version to the doctor, in which it is stated that, the injury is inflicted by an unknown person. 2. There is a delay in recording the statement of the witnesses under Section 161 Cr.P.C. 3. There is a delay in reaching the FIR in the Court. 4. In Ext. P1 FI statement, the presence of PW3 is not mentioned. 5. There is a contradiction about the days during which injured were there in the Intensive Care Unit of the hospital. 6. There is no evidence to show that, the PW2 was CRL.A.839/2005 & Crl.Rev.Pet.453/2004 10 admitted in the Intensive Care Unit. ## 7. There is a delay in recording the FI statement. 17. These are the seven reasons relied by the appellate court to allow the criminal appeal. I am not in a position to accept these grounds to set aside a conviction and sentence imposed by the trial court in a serious case like this. The first ground relied by the learned appellate Judge is that, in Ext. P13, it is mentioned that an unknown person inflicted injury on the deceased. I perused the evidence of PW1 to PW3. Nobody deposed before the Court that they gave such a statement to the doctor. Moreover, PW1 narrated the situation at that time in detail in her evidence. According to her, her husband sustained a serious injury. He was in the middle of life and death. She has no case that, she gave such a statement to the doctor. The doctor, who recorded that statement is not available for examination. PW13 the doctor cannot say who gave such a statement to the deceased. In the light of the oral evidence of PW1 to PW3 and in the light of the medical evidence available in this case, the version to the doctor is irrelevant according to me. As I stated earlier, the situation that was faced by PW1 at that time was narrated by her in detail. Her husband sustained an incise penetrating injury on chest. Her husband was in the CRL.A.839/2005 & Crl.Rev.Pet.453/2004 11 Intensive Care Unit. In such circumstance, according to me, the version to the doctor is not at all relevant especially because PW1 to PW3 has no case that, they gave such a statement to the doctor. Therefore, I reject that ground relied by the appellate court for allowing the appeal. 18. The next ground relied by the lower appellate court is that, there is delay in recording the statement of witnesses under Section 161 of Cr.P.C. Of course, if there is considerable delay in recording the statement of the witnesses by the Investigating Officer, that may go against the prosecution in some situations. But in this case, the occurrence was on 12.04.1995 and the statement was recorded on 15.04.1995. There is only three days delay in recording the statement under Section 161 of the Cr.P.C. According to me, that is not at all a delay in a case like this in recording statement of witnesses under Section 161 Cr.P.C. During this period the injured was in the Intensive Care Unit. At that time, the close relatives of the injured will be looking after the injured. They are the main witnesses in this case. In such situation, the Investigating Officer may not be able to ask the witnesses to gave the statement under Section 161 Cr.P.C. The delay is reasonable in this case. According to me, that is also not a reason to set side a CRL.A.839/2005 & Crl.Rev.Pet.453/2004 12 conviction and sentence imposed by the trial court. 19. The other ground relied by the trial court for acquitting the accused is that, there is delay in reaching the original FIR before the jurisdictional Magistrate. The date of occurrence in this case was on 12.04.1995. The FIR reached the Court only on 17.04.1995. Of course, if there is unexplained delay in reaching the original FIR before the jurisdictional Magistrate, that is fatal to the prosecution. But admittedly, there are two holidays in between 12.04.1995 and 17.04.1995. Of course, if there is holidays, it is the duty of prosecution to take the original FIR to the residence of the jurisdictional magistrate. Of course that may be a defect on the part of Investigating Officer or the Police Officers concerned. But, when there is reliable and strong oral evidence of PW1 to PW3, who are the natural witnesses in this case and there is nothing to show that Ext. P1 FI statement is manipulated in this case, I see no reason to set aside the conviction and sentence imposed on the 1[st] accused by the trial court. 20. The next ground relied by the appellate court is that, the presence of PW3 is not mentioned in the FI statement. PW3 is none other than the daughter of PW1 and PW2. Even according to prosecution, PW3 is not an eye witness to the CRL.A.839/2005 & Crl.Rev.Pet.453/2004 13 actual incident in this case. If she wanted to give a false evidence, she can say that, she was also a witnesses to the incident. That itself shows that, her evidence is reliable. More over she is the daughter of PW1 and PW2. The incident happened on 12.04.1995 at 9.30 p.m. In such circumstance the presence of PW3 in her own house can not be disbelieved by a Court of law. In such circumstance, that is also not a ground to the appellate court to acquit the 1[st] accused in this case. 21. The next ground for acquittal by the appellate court is that, the contradiction about the dates during which the injured was in the Intensive Care Unit. I don't know what is the relevancy of the same in this case. Whether he was in the Intensive Care Unit for 5 days or whether he was in Intensive Care Unit for 8 days is not at all relevant in this case. It is proved that, PW2 sustained a fatal injury on his chest. That is proved through the medical evidences in this case. The oral evidence of PW1 to PW3 corroborate the same. In such circumstances, the contradiction of witnesses about the period during which PW2 was in ICU is not at all relevant. According to me, that is a flimsy reason relied by the appellate court to acquit the accused in a case like this. 22. The trial court also found that, there is no evidence to CRL.A.839/2005 & Crl.Rev.Pet.453/2004 14 show that, PW2 was in Intensive Care Unit. Whether PW2 was in the Intensive Care Unit or not, is not a point to be decided in this case. Whether he sustained injury and whether the injury is inflicted by the 1[st] accused, is the question to be decided. There is oral and documentary evidence to prove the same. In such circumstances, the finding of the trial court that, there is no evidence to show that, PW2 was admitted in the ICU is not a ground to acquit the accused. 23. The appellate court observed that, there is delay in recording the FI statement. The date of occurrence was on 12.4.1995 at about 9.30 p.m. The FI statement was recorded only on 13.04.1995 at about 9.30 p.m. The FI statement was given by the PW1, who is the wife of PW2. Admittedly, PW2 was in the hospital. PW2 sustained a fatal injury. PW1 narrated the situation at that time in detail in her evidence. Therefore, a days delay in recording the FI statement is not at all relevant in the facts and circumstances of the case. Therefore, that is not a ground to acquit the accused. The appellate court also found that, from the facts and circumstances of the case, it can not be inferred that, PW1 and PW2 saw the assailant at the time of the incident. According to the appellate court, the assailant attacked PW2 from back side. The defense has got a case that at 9.30 CRL.A.839/2005 & Crl.Rev.Pet.453/2004 15 p.m., there was an official power cut in that area. Therefore, there is no chance to see the assailant by the PW1 and PW2. According to me, the evidence of PW1 and PW2 are reliable and trustworthy. PW2 is the injured and PW1 is his own wife. PW3 is their daughter. The incident happened in the house of PW2. PW1 to PW3 are the natural witnesses. The accused is a known person to PW1 to PW3. In such situation, it is very difficult to accept the contention of the accused that, the identity of the 1[st] accused is not proved by the prosecution. 24. The appellate court inferred that, the history of injury must have been disclosed to the doctor either by PW1 or PW2. According to the court, if they had identified the 1[st] accused as the assailant definitely they would have mentioned his name to the doctor concerned at Medical College Hospital. As I mentioned earlier, PW1 and PW2 has no case that they gave the history of the injured to the doctor. In such situation, the Court can not infer that, they gave such a statement to the doctor. 25. The trial court also found that, the motive set out by the prosecution is not proved in this case. It is a well settled principle that, when there is oral and documentary evidence to prove a case, the motive is irrelevant in such cases. In other words even if the motive is not proved and if there is oral and CRL.A.839/2005 & Crl.Rev.Pet.453/2004 16 documentary evidence to prove the prosecution case, that is sufficient. In this case, there is oral and documentary evidence to prove that the 1[st] accused inflicted the injury on PW2. 26. Therefore, according to me, the judgment of the appellate court is perverse and can't be accepted at all. The appellate court without considering the oral and documentary evidence properly reversed the finding of the trial court. Therefore, according to me, the judgment of acquittal passed by the appellate court is illegal and unsustainable. Therefore, the same is set aside. 27. Now what is the offence committed by the 1[st] accused is the question to be decided. The trial court convicted the accused under Section 307 of IPC mainly for the following grounds. “18. The act was happened at 9.30. by night. The first accused entered the house of PW2 and came behind PW2 who is reading by sitting in the veranda unnoticed by anybody and stabbed with MO.III. It is also ascertainable that the first accused is relative of PW2 and was a partner in the business conducted along with PW2 at Sharja. The evidence tendered gives the clue that PW2 intends to start an independent business and the first accused wanted to stop it by putting an end to PW2's life. It is in this context he choosen to stab on PW2 with a view to stop the life of PW2 in order to boost his and his borther's business at Sharja. The injury sustained to PW2 is penetrating one touching the lungs. The first CRL.A.839/2005 & Crl.Rev.Pet.453/2004 17 accused choosen that part of the body of PW2, which act evidences that the first accused's intention is to commit murder of PW2. The evidence of PW10 also evidences that injury sustained to PW2 will be sufficient to cause death of PW2. The time choosen, the penetrating injury inflicted in left chest, and the previous threats gave to PW1 and 2 and circumstances etc. - reveals that the first accused's acts satisfies the intention or knowledge and the circumstances as is described in Section 307 of I.P.C. Considering all the above aspects, I have no hesitation to come to a conclusion that it is the first accused who committed the offences as alleged by the prosecution. Points answered in favour of the prosecution.” 28. It is true that, PW2 to sustained a grievous hurt. it is also proved that, the 1[st] accused used a dangerous weapon. But whether the 1[st] accused committed the offence under Section 307 of IPC is a question to be decided. To attract the offence under Section 307 of IPC, the prosecution has to prove the ingredient of Section 307 IPC. There is no evidence to prove the same. It can not be inferred from the evidence of PW1 to PW3 that, there is an intention on the part of the 1[st] accused to murder PW2. From the oral and documentary evidence, it is clear that, the 1[st] accused inflicted a hurt to PW2 using a dangerous weapon. That amounts to only an offence under Section 324 of IPC. Therefore, according to me, the appellant/1[st] accused committed an offence under Section 324 of IPC. CRL.A.839/2005 & Crl.Rev.Pet.453/2004 18 29. The next question is what is the sentence to be imposed by the appellant/1[st] accused. The alleged incident happened in this case on 12.4.1995. Now about 25 years is elapsed after the alleged incident. At this distance of time, it is improper to send the 1[st] accused to jail. But it is a case were PW2 sustained a very serious injury on a vital part of his body. In such circumstances, I think, a sentence of fine will be enough in the facts and circumstances of this case, with a direction to pay fine to the injured. Therefore, these cases are disposed of in the following manner: - (i) Crl.Appeal No.839 of 2005 is allowed; - (ii) The judgment dated 25.6.2003 in Crl.Appeal No. 621 of 2000 on the file of the IIIrd Additional Sessions Court, Thrissur is set aside; - (iii) The 1[st] respondent/1[st] accused is convicted under Section 324 IPC; - (iv) The 1[st] respondent/1[st] accused is sentenced to pay a fine of Rs.50,000 (Rupees Fifty thousand only). In default of payment of fine, the 1[st] respondent/1[st] accused is directed to undergo simple imprisonment for three CRL.A.839/2005 & Crl.Rev.Pet.453/2004 19 months; - (v) If the fine amount is realized, the entire amount should be disbursed to PW2; - (vi) The 1[st] respondent/1[st] accused will appear before the trial court and pay the fine within two months from today. If the amount is not paid, the trial court will take steps to recover the same in accordance to law Criminal R.P. No.453 of 2004 is closed in the light of the judgment in criminal appeal No.839 of 2005. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **ab/LU/** ## **JUDGE** **pkk**