State of Kerala v. Joy (S/o Poulose)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **CRL.A.No.197 OF 2005** **AGAINST THE JUDGMENT IN SC NO. 438/2003 DATED 10-06-2004 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA** **REP.BY SUB INSPECTOR OF POLICE, KURUPPUMPADY THOUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.89/02 OF KURUPPUMPADY POLICE STATION).** **BY SHRI.K.B.UDAYAKUMAR,SR.GP** **RESPONDENT:** **JOY** **S/O POULOSE, NELLIKAKUDY HOUSE,VENGOOR WEST VILLAGE.** **R1 BY ADV. SRI.MANSOOR.B.H. R1 BY ADV. SRI.S.U.NAZAR R1 BY ADV. SRI.I.V.PRAMOD** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-10-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.197 OF 2005 2 ## **JUDGMENT** ## **Dated this the 7th day of October 2020** ... The State of Kerala filed this appeal challenging the acquittal of the respondent as per the judgment dated 10.6.2004 in S.C.No.438 of 2003 by the Additional Sessions Court (Adhoc-II), Ernakulam. 2. The above case is charge sheeted by the Sub Inspector of Police, Kuruppumpady Police Station alleging offences punishable under Sections 447 and 308 of the Indian Penal Code. 3. The prosecution case is that on 13.3.2002 at 5.30 p.m., the accused on account of his previous enmity towards PW1 committed criminal trespass into the latter's residential property on the eastern side of Alinchuvadu-Punacheerangara Panchayat road CRL.APPEAL NO.197 OF 2005 3 and attempted to commit culpable homicide by inflicting a cut injury with a knife on the left ear and left neck portions of PW1. It is, therefore, alleged that, the accused committed the said offence. 4. To substantiate the case, the prosecution examined PW1 to PW6. Exhibits P1 to P7 are the documents marked on the side of the prosecution. Two documents were marked on the side of the defence as D1 and D2. MO1 is the material object. 5. After going through the evidence and documents, the trial court found that, the accused is not guilty and hence the accused was acquitted under Section 235(1) of the Code of Criminal Procedure (Cr.P.C.). Aggrieved by the acquittal order, this criminal appeal is filed by the State. 6. Heard the learned Public Prosecutor CRL.APPEAL NO.197 OF 2005 4 and the learned counsel for the respondent. 7. The learned public prosecutor submitted that, there is adequate evidence to prove the offence and the guilt of the accused. The public prosecutor submitted that, the trial court has not considered the oral and documentary evidence properly. The public prosecutor submitted that, this is a fit case in which this Court can interfere against the acquittal order. 8. The learned counsel for the respondent submitted that, the trial court after considering the entire facts and circumstances of this case, acquitted the accused. The counsel submitted that, the trial court found that the defence case is more probable than the prosecution case. Accordingly, the trial court acquitted the accused. The counsel submitted that, there is CRL.APPEAL NO.197 OF 2005 5 nothing to interfere with the well considered judgment of the trial court. 9. The point for consideration in this case is whether the acquittal order passed by the Additional Sessions Court (Adhoc- II),Ernakulam in S.C.No.438 of 2003 is after considering the entire oral and documentary evidence and whether there is anything to interfere in an appeal against acquittal. 10. It is now well settled by several judgments of the Apex court that, once the accused is acquitted by the trial court, the presumption of innocence is strengthened. The Apex court in **Sampat Babso Kale v. State of Maharashtra** [AIR 2019 SC 1852] and **Chandrappa and Others v. State of Karnataka** [(2007) 4 SCC 415] considered this point. The relevant portions of the judgment of Chandrappa's case (supra) are extracted hereunder: CRL.APPEAL NO.197 OF 2005 6 _**“40. In Ramanand Yadav v. Prabhu Nath Jha this Court observed: (SCC pp.614-15, para 21)**_ **“21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.”** CRL.APPEAL NO.197 OF 2005 7 **“41. Recently, in Kallu v. State of M.P. this Court stated : (SCC pp.317-18, para 8)** **“8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court” (emphasis supplied).** 11. Bearing in mind the above principle laid down by the Apex Court, this Court is CRL.APPEAL NO.197 OF 2005 8 considering this appeal against acquittal. The trial court after considering the entire oral and documentary evidence found that the case of the accused is also more probable. The trial court observed that, the circumstances brought out in the evidence would obviously create a doubt as to the manner in which the incident happened. The trial court considered the evidence available in this case in paragraphs 12 to 14 in the impugned judgment, the same is extracted hereunder: _**“12. The question that poses for consideration is as to whether the accused had committed criminal trespass into the residential compound of PW1 and deliberately attacked him with the intention to kill him. Ext.P1 First Information Statement which stood as the genesis of the prosecution case gives a narration at the first instance that there arose a dispute between PW1 and the accused regarding the diverting of water. It can be made out from Ext.P1 that the accused**_ CRL.APPEAL NO.197 OF 2005 9 _**had struck PW1 with a knife as a result of the alleged dispute that had catapulted over there. But there is nothing prima-facie on the records to show that the accused had deliberately used MO1 against PW1 with the intention to commit culpable homicide. It has also come out in the evidence in this case that there was dispute between the accused and the father of PW1 regarding family properties and the properties were not subjected to partition by executing a partition deed. It is also evidenced that there were other disputes waged by the parties relating to properties and that there was disharmony among them. The circumstances regarding the alleged overtact of the accused and the manner in which the incident had happened must be specifically considered in the light of the said evidence borne out in this case.**_ _**13. The enmity between PW1 and the accused is sufficiently proved in this case. It has also come out from the evidence that the family property was agreed to be partitioned by the accused, the father of PW1 and their another brother by written document. But PW1 has pleaded ignorance regarding the preliminary decree passed in a suit pertaining to the said agreement. Even though PW1 has admitted that the agreement**_ CRL.APPEAL NO.197 OF 2005 10 _**referred above was executed in his residential house, he has adopted a further stand that he did not know anything about the civil litigation and he has never interfered in such matters, a statement which is not worthy to be consumed as such. When PW1 was questioned as to whether he was called to the Kuruppampady Police Station pursuant to a complaint lodged by the accused and another brother’s son of accused regarding the destruction of ‘jathi trees’ by PW1 and his father, PW1 has admitted to the extent that he was called to the police station but he denied the incident whereby ”jathi trees” were cut off. It is also borne out in evidence that the father of PW1 is a politician and he was associated with the Panchayath as President and Vice President as well for a considerable period of time. The evidence would also show that the canal water from the Periyar Valley Canal falls on the property agreed to be allocated to PW1 and the neighbouring property holders used to divert water from that portion of the property. Ext.P1 First Information Statement which was lodged by PW1 made express mention regarding the arrival of the Accused over that area at the relevant time for the purpose of diversion of water from the canal. The genesis of the incident**_ CRL.APPEAL NO.197 OF 2005 11 _**attributed in Ext.P1 is in such a way that there arose a dispute between PW1 and the accused at that point of time and the accused had struck him with the ‘vakathi’ 14. The case spoken to by PW1 in his evidence is projected in such a way at the very outset that the accused had abruptly attacked PW1 with ‘vakkathi’ while the latter was watering the plants in the residential compound. PW1 in his anxiety to give more colour to the prosecution version has also highlighted that the accused had so often harassed him from a period dating back to his childhood and had attempted to kill him also, a story which did not find a place in Ext.P1 First Information Statement. Even though it is proved that PW1 has sustained injuries and it may be even said that there is no possibility that the injuries could have been self inflicted, the evidence when analysed in the background of events referred in the earlier paragraph would spell a doubt regarding the manner in which the incident had happened. This must be particularly so since PW1 and PW2 who is the wife of PW1 have patently spoken an exaggerated version in their evidence to bring forth the guilt on the accused to tune with the prosecution charge. Trivial discrepancies or little more embellishments**_ CRL.APPEAL NO.197 OF 2005 12 _**would not have mattered in the normal run of things but this is a case where the testimony of PW1 and PW2 can be taken with abundant caution, especially in the backdrop of the animosity waged by the parties. There is also no independent evidence on the side of the prosecution to render support to the case spoken to by PW1 regarding the manner in which the incident had happened or to speak on as to who has figured as an aggressor. The circumstance brought out in evidence would obviously create a doubt as to the manner in which the incident had happened. Above all none of the offences angled against the accused are established by the prosecution. That being the position the accused is only to be found not guilty under such circumstances and I do so.**_ 12. I see no reason to interfere with the above finding of facts of the trial court. The trial court found that the defence case is more probable and the prosecution is not able to prove that the incident is happened in the manner in which the prosecution alleged. Even if two views are possible, this CRL.APPEAL NO.197 OF 2005 13 Court while sitting in appeal against acquittal cannot interfere with the impugned judgment. In such circumstances, this Court is not in a position to interfere with the acquittal order. Hence, this Criminal Appeal is dismissed confirming the judgment dated 10.06.2004 in S.C.No.438 of 2003 of the Additional Sessions Court (Adhoc-II), Ernakulam. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**