State of Kerala v. Kattayaprambil Pradeepkumar, Sajeevan and Purushothaman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944** ## **CRL.A. NO. 1875 OF 2006** **JUDGMENT DATED 12.07.2001 IN S.C. NO. 604/2000 ON THE FILE OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER ACT 33 OF 1989 AT** ## **THALASSERY.** ## **APPELLANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR.** ## **BY SMT.VIDYA KURIAKOSE, PUBLIC PROSECUTOR** ## **RESPONDENT/ACCUSED:** **1 KATTAYAPRAMBIL PRADEEPKUMAR S/O. PURUSHOTHAMAN, FISHERMAN, AGED 31 YEARS, CHERUKUNNU AMSOM, PALLIKKARA. 2 KATAYAPARAMBIL SAJEEVAN S/O. PURUSHOTHAMAN, AGED 33 YEARS, FISHERMAN, CHERUKUNNU AMSOM, PALLIKKARA. 3 KATAYAPARAMBIL PURUSHOTHAMAN S/O. AYYAPPAN, AGED 64 YEARS, FISHERMAN, CHERUKUNNU AMSOM, PALLIKKARA.** **BY ADVS.SRI.LAL GEORGE SRI.P.K.VIJAYAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No. 1875 of 2006 2 ## **JUDGMENT** This appeal is filed against the judgment dated 12.07.2001 in S.C. No. 604/2000 on the file of the Special Judge for the trial of offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 2. The alleged incident in this case happened about 25 years back. This appeal is pending before this Court for the last 19 years. 3. The State challenge the acquittal order passed by the trial court. The prosecution case is that the accused used abusive words to PW4, Rajasudha, sister of PW1, who belongs to Pulaya community, a member of Scheduled Caste, since their dog entered into the house of the accused, and when PW1 enquired about such use of filthy words to his sister, they turned inimical towards him and with intent to manhandle him and with intention to humiliate them on 15.05.1997, at 10.45. A.M., the accused criminally trespassed into the backside courtyard of PW1's house, a place within public view. It is further alleged that they intentionally Crl.Appeal No. 1875 of 2006 3 insulted him by calling caste name and the 1[st] accused beat him with MO1 wooden stick inflicting injury on the back of his head and accused Nos. 2 and 3 beat him with hands on his back and abdomen causing injuries and thereby, they committed the offences stated above. Immediately after the incident, PW1 was taken to Cherukunnu Mission Hospital. On receiving intimation from the hospital, Ext.P8 Head Constable attached to Kannapuram Police Station went to the hospital and recorded Ext.P1 F.I.Statement given by the injured. Based on Ext. P1 F.I. Statement, the then ASI of Kannapuram Police Station registered Ext.P7 FIR. Subsequently, the investigation was conducted by the Dy.S.P., Kannur and a final report is filed. 4. To substantiate the case, prosecution examined PW1 to PW11. Exts. P1 to P7 are the exhibits. One witness was examined on the side of defence as DW1 and Exts. D1 and D2 are the exhibits marked on the side of defence. MO1 is the stick produced by the prosecution. 5. After going through the evidence and documents, the trial court found that the accused is not guilty for the offence Crl.Appeal No. 1875 of 2006 4 alleged. Therefore, they were acquittal. Aggrieved by the same, this appeal is filed by the State. 6. Heard the learned Public Prosecutor and the learned counsel appearing for the respondents. 7. The learned Public Prosecutor submitted that from the evidence adduced by the prosecution witness, it is clear that the accused committed the offence. The learned Public Prosecutor takes me through the evidence of PW1, PW4 and PW6 couple with the medical evidence. The learned Public Prosecutor submitted that there is nothing to disbelieve the evidence of PW1, PW4 and PW6. The learned Public Prosecutor also takes me through the evidence of doctor, who is examined as PW2. The learned Public Prosecutor submitted that since the injured sustained injuries that itself shows that the prosecution case is justified. The Public Prosecutor submitted that there is nothing to disbelieve the evidence of PW1, PW4 and PW6 couple with the medical evidence. The learned Public Prosecutor submitted that the ocular evidence is in tune with the medical evidence adduced in this case. The learned Public Prosecutor submitted that the trial Crl.Appeal No. 1875 of 2006 5 court without properly appreciating the evidence acquitted the accused. 8. The learned counsel for the respondents submitted that there is nothing to interfere with the acquittal order passed by the trial court. He also submitted that the jurisdiction of this Court to interfere with an appeal against acquittal is limited. The learned counsel submitted that the trial court after considering the evidence available and appreciating the evidence, came to the conclusion that the accused is entitled to get the benefit of doubt. In such circumstances, this Court may not interfere with the acquittal order passed by the trial court. 9. This Court considered the contention of the learned Public Prosecutor and the learned counsel appearing for the respondents. Before discussing the matter, the powers of this Court in an appeal against acquittal is to be considered. The Apex Court in **Sampat Babso Kale and Another v. State of Maharashtra [AIR 2019 SC 1852]** , observed that presumption of innocence attached to every accused person get strengthened on acquittal of accused by the trial court. The same principle Crl.Appeal No. 1875 of 2006 6 was considered by the Apex Court in **Chandrappa and Others** **v. State of Karnataka [2007 (4) SCC 415]** . Bearing in mind, the principle laid down by the Apex Court, this appeal has to be considered. 10. In this case the prosecution is relying the evidence of PW1, PW4 and PW6 and the medical evidence. The evidence of these witnesses were considered by the trial court in detail and came to the conclusion that their evidence cannot be believed and consequently, the acquittal order is passed. It will be better to extract the relevant portion of the acquittal order:- “13. In this connection, it is relevant to notice that the defence put forth a case that actually PW1 was the aggressor. As he attacked 2[nd] accused and as he sustained injury he was also treated in the same hospital. Although this aspect was brought to the notice of the Investigating Officer, according to the defence it was not given much weight and an impartial investigation was not conducted. It is for this purpose DW1 the Medical Officer was examined and Exts. D1 and D2 were produced. DW1 Medical Officer says that on 15.05.1997, he examined 2[nd] accused alleged to have been assaulted by 2 persons with bamboo stick at 10.30 a.m. He had cut injury over both shin, contusion injury over right chest, cut injury over lower lip, cut injury Crl.Appeal No. 1875 of 2006 7 over scalp. Ext.D1 is the casualty card. Ext.D2 is the wound certificate. The learned Public Prosecutor attempted to dispute the identity of the injured as identification mark was not noted in the wound certificate. But I would say that this cannot be treated as a material error especially for the reason that the Investigating Officer admits that he came to know about the second accused who was undergoing treatment in the same hospital. But according to him it happened in an incident unconnected with this, whether it happened unconnected with the present incident or not, the prosecution should have taken note of and conducted an investigation as to bring out the genuineness of the case. According to the 2[nd] accused due to previous enmity he was attacked by the complainants and there was a scuffle in which he also sustained the injury. The reason for the scuffle is stated to be the previous enmity because of the boundary dispute and the enmity arose as they made publicity to the illicit pregnancy of PW4. PW1 admits in cross examination that there had been posters that PW4 became pregnant and that there is a complaint to the police that the said posters were made by 1[st] accused. It is also a fact relevant to note that after the incident, the Tahsildar measured the property and put up the boundary. It is also relevant in this connection to notice that to PW2 doctor it was told that PW1 was assaulted by Sajeevan (A2), Purushothaman (A3), Pradeepan (A1), Pushpan and Saradha. Why the name of Pushpan and Saradha were given as assailants to the doctor is not explained anywhere in the prosecution case. Thus considering these aspect, it would undoubtedly give rise to Crl.Appeal No. 1875 of 2006 8 an inference that what the prosecution case as advanced is not correct, but a twisted version of what has already taken place. 14. In the midst of the said discrepancies and dubious circumstances as the witnesses examined are closely related and interested unsupported by independent witnesses it appears to be dangerous to accept their version. 15. The evidence is not sufficient to conclude undoubtedly that the accused entered into the property in possession of PW1 with intent to commit an offence as alleged by the prosecution. To prove possession, a certificate from the Village Officer PW3 was produced being Ext.P4. In this record I would say that in view of the observations made above, it is not possible to arrive at a positive conclusion relying on the interested testimony. There is also no evidence to see that MO1 is a dangerous weapon which could have been used as a weapon of offence to cause hurt likely to cause death. It is also a matter in doubt that the accused have insulted or intimidated PW1 with intent to humiliate him in a place within public view. 16. Thus, in consideration of the facts discussed above, I find, it is unsafe to rely on the testimonies of PWs 1, 4 and 6. Since this being the nature of evidence to connect the accused with the incident, I am not inclined to consider the evidence given by other witnesses who being official witnesses.” 11. From the above discussion, it is clear that the trial court appreciated the evidence and thereafter, disbelieved the Crl.Appeal No. 1875 of 2006 9 evidence. The learned Public Prosecutor submitted that the view taken by the trial court is not correct and another view is also possible. Even if there are two views possible, this Court sitting in appeal against acquittal cannot interfere with the acquittal order. I see no reason to interfere with the acquittal order passed by the trial court. The trial court after appreciating the evidence in detail, acquitted the accused. According to me, in an appeal against acquittal, this Court is not in a position to re-appreciate the evidence already done by the trial court. Therefore, this Criminal Appeal fails and is dismissed. Sd/- **P. V. KUNHIKRISHNAN JUDGE** DCS/08.06.2022