State of Kerala v. Parosh M. @ Parchhu, S/o Pradeepkumar; K.Kiran Kumar; M.Dinesh; K.S.Sudheer Kumar; G.Jyothish @ Jyothishkumar; Aju @ Ajithkumar K; Kishor @ K.G.Kishor

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940 CRL.A.No. 114 of 2014 (B) AGAINST THE JUDGMENT IN SC 235/2011 of ADDL. D.C. & SESSIONS COURT - III, KASARAGOD, DATED 21-10-2013 AGAINST THE ORDER IN CP 156/2011 of J.M.F.C.,KASARAGOD, DATED 25.05.2011 ## APPELLANT/COMPLAINANT : - -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, KASARAGOD, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI. SURESH BABU THOMAS BY GOVERNMENT PLEADER SRI. NICHOLAS JOSEPH RESPONDENTS/ACCUSED: - ----------------------------------------- 1. PAROSH M. @ PARCHU, S/O.PRADEEPKUMAR, KARUNA NILAYAM, MEEPUGIRI, R.D.NAGAR, KUDLU VILLAGE, PIN - 671 124. 2. K.KIRAN KUMAR, S/O.LATE SIVAN, HITHILU MANE COMPOUND, - NEAR ABHAYA NIKETHAN, THALIPPADAPPU, - KELUGUDDE, ADKATHBAIL VILLAGE, H.NO.KMC-III-165. 3. M.DINESH, S/O.JAYENDRA, MEEPUGIRI HOUSE, MEEPUGIRI, KUDLU VILLAGE, HOUSE NO.M.P.X-227, PIN - 671 124. 4. K.S.SUDHEERKUMAR, S/O.LATE KRISHNA, NEAR S.G.K.TEMPLE ROAD, PACHAKKADU, KUDLU VILLAGE, HOUSE NO.XIV-389-A, PIN - 671 124. 5. G.JYOTHISH @ JYOTHISHKUMAR, S/O.GOPALAN, J.P.COLONY, ANANKOOR, KASABA VILLAGE, HOUSE NO.K.M.C.VII-422, PIN - 671 542. 6. AJU@AJITHKUMAR K, S/O.RAGHAVAN, KELUGUDDE HOUSE, AYYAPPA NAGAR, KUDLU VILLAGE, HOUSE NO.M.P.XII-18, PIN - 671 124. CRL.A.No. 114 of 2014 (B) 2 7. KISHOR @ K.G.KISHOR, S/O.BEEDI MADHAVAN, KELUGUDDE, KUDLU VILLAGE, HOUSE NO.MP.XII-25, PIN - 671 124. R1-R7 BY ADV. SRI.P.S.SREEDHARAN PILLAI R1-R7 BY ADV. SRI.T.K.SANDEEP R1-R7 BY ADV. SRI.ARJUN SREEDHAR R1-R7 BY ADV. SRI.ARUN KRISHNA DHAN R1-R7 BY ADV. SRI.ALEX ABRAHAM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2018, THE COURT ON 13.04.2018 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** ------------------------------------------------ Crl.Appeal No.114 of 2014 -----------------------------------------------Dated this the 13[th] day of April, 2018 ## J U D G M E N T ## **Somarajan, J.** Against the judgment of acquittal for the charges of offence under Sections 120(B), 153(A), 302 and 201 IPC in Sessions Case No.235/2011 of the Additional District and Sessions Judge-III, Kasaragod, the State Government came up with this appeal. 2. The deceased herein, one Rishad aged 36 years, met with a sad death in the hands of the accused while he was riding his motor cycle, bearing Registration No.KL 14/C 9525, with a pillion rider (CW1) at about 8.15 p.m. on 09.01.2011 on his way back to his house. Accused No.2 hit on the right side of his head with an iron rod and thereby he fell down. Thereon, accused No.1 stabbed on his stomach. Both of them stabbed and beat him with a knife and iron rod. Later on he succumbed to the injuries, is the prosecution version. 3. The learned Sessions Judge, on consideration of the evidence adduced and on hearing both the parties, found the Crl.Appeal No.114 of 2014 2 accused not guilty of any offence and hence acquitted all the accused persons (1 to 7), against which the State Government came up with this appeal. 4. The plentitude of power available to the High Court in hearing an appeal against acquittal is the same as that is available to a Court hearing an appeal against conviction. However, the Court will not interfere solely because a different plausible view may arise on evidence ( **K. Ramakrishnan Unnithan v. State of Kerala, AIR 1999 SC 1428** ). The power to re-appreciate the evidence is also available while hearing an appeal against acquittal. There is no jurisdictional embargo or any curtailment in the matter of appreciation of evidence by the High Court while hearing an appeal against acquittal from that of the jurisdiction to deal with an appeal against conviction. The difference is not on the power to have re-appreciation of evidence, but the existence of presumption of innocence in favour of the accused fortified by the order of acquittal passed by the Trial Court and hence the appellate court is not expected to disturb the finding of the trial court Crl.Appeal No.114 of 2014 3 unless the same is found to be perverse. It is worthful to extract the relevant portions of paragraph 5 of the judgment of the Apex Court drawn in **K.Ramakrishnan Unnithan's** case ( _supra_ ). _“5. The plentitude of power available to the Court, hearing an appeal against acquittal is the same as that available to a Court hearing an appeal against on order of conviction. But however the Court will not interfere solely because a different plausible view may arise on the evidence. In a case of murder, if the reasons given by the trial court for discarding the testimony of the eye witnesses are not sound, then there should be no hesitation on the part of the High Court in interfering with an order of acquittal. If the judgment of the trial Judge was absolutely perverse, legally erroneous and based on wrong testimony, it would be proper for the High Court to interfere and reverse an order of acquittal.”_ 5. The Apex Court has laid down the principles to be kept in mind while dealing with such appeals in **Muralidhar alias Gidda and Anr v. State of Karanataka** reported in **AIR 2014 SC 2200** . Paragraph 12 of the said judgment is extracted below for reference: Crl.Appeal No.114 of 2014 4 _“12. In dealing with appeals against acquittal, the appellate court must bear in mind the following : (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if view taken by the court is a possible view. The evenly balanced_ Crl.Appeal No.114 of 2014 5 _views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”_ 6. Being the legal position settled as above, our venture is to find out to what extent an interference with the order of acquittal is possible within the factual scenario and the evidence adduced in the instant case. 7. We will discuss the grounds raised by the appellant - State Government - one by one. The oral testimony of the one and the only eye witness cited by the prosecution (PW1) was fully and completely rejected by the lower court. It was submitted by the learned counsel for the appellant that some portions of the oral evidence tendered by PW1, though found to be false or not acceptable, having the legal position very much settled that the maxim _falsus in uno falsus in omnibus_ not as such applicable in India, the trial court ought to have rejected only that portion which is found to be not acceptable and bound to act on the portion of evidence which inspires confidence and found trustworthy and took reliance from **Ranbir v. State of Punjab** reported in 1973 KHC 590 = 1973 6 Crl.Appeal No.114 of 2014 (2) SCC 444 = 1973 SCC (Cri) 858 = AIR 1973 SC 1409 = 1973 Cri LJ 1120 and **S.Sudershan Reddy and Others v. State of Andhra Pradesh** reported in 2006 KHC 1213 = JT 2006 (7) SC 237 = 2006 (10) SCC 163 = AIR 2006 SC 2716 = 2006 Cri LJ 4033. The lower court has rejected the oral testimony of PW1, the only eye witness, on the ground of material inconsistencies brought out. We have anxiously gone through the oral evidence tendered by PW1 and the First Information Statement given by him. It is true that at the time of giving First Information Statement, the version given by him was that he was only a pedestrian and had seen the occurrence while standing on the road side. But, a different version was given at the time of oral evidence claiming that he was the pillion rider of the vehicle ridden by the victim. There cannot be any quarrel that the above said discrepancy/inconsistency is so material. The statement given by him at the first instance stating that he was only a pedestrian and had seen the incident by standing on the side of the road had been given up by him at the time of giving oral 7 Crl.Appeal No.114 of 2014 evidence stating that he was a pillion rider of the vehicle ridden by the victim. If he was a pillion rider of the vehicle ridden by the victim, what happened to him during the attack is not explained by him, but simply stated that he ran away from the place. The injuries alleged to have been sustained by the victim, which comes to 20 in numbers, including stab injuries would show that he had been subjected to a ferocious attack simply on the reason that he was a person belonged to Muslim community. According to the prosecution, no other case of personal vendetta, grudge, enmity or hatredness was brought out and no such case was also advanced. The attack on the victim is simply on the reason that he is a person belonged to Muslim community, according to the prosecution. PW1, being a member of Muslim community, stands on the same pedestal, but no attack was made on him, though he was a pillion rider of the vehicle ridden by the victim. No serious injury or even any minor injury was sustained by the pillion rider, PW1, and no such case was also advanced. The prosecution did not have any specific case why the assailants Crl.Appeal No.114 of 2014 8 confined their attack only on the victim, the rider of the bike and left out the pillion rider without any attack or threatening. It makes the oral testimony of PW1 highly suspicious. The discrepancy and the disparity between the First Information Statement and his oral testimony touching on the material aspect is so crucial when read along with the above said improbability. 8. The next inconsistency in the oral evidence tendered by PW1 is that as per the FIS, on seeing the incident PW1 cried aloud and ran away from the place, but in the chief examination what is stated by him is that on seeing the incident he scared and stood near the gate of the house of one Sherief. In the First Information Statement he made an assertion that he never seen the person who had driven the auto rickshaw. But, in the chief examination he took a 'U turn' and stated that he had seen accused No.4 who was sitting on the driver's seat of auto rickshaw. Exhibit D1 contradiction marked is also material in nature. He did not have any case that on seeing the incident/attack he cried aloud and ran away Crl.Appeal No.114 of 2014 9 from the place of occurrence. But, in the FIS a different version was given stating that on seeing the attack he cried aloud and ran away from the place of occurrence. The learned Sessions Judge even doubted the presence of PW1 in and around the place of occurrence at the time of alleged incident. The earlier version given by him that he was simply walking through the road at the time of alleged incident and happened to see the incident had given up while in the box and advanced an entirely different version that he was the pillion rider of the vehicle involved in the alleged incident. FIS was given only at 12.30 a.m. midnight though the incident was happened at 8.15 p.m. In the FIS, the cause of incident was stated by PW1 as communal enmity. But, it is not clear how he came into such a conclusion. None of the accused persons are known to him. He did not know whether they are belonged to any particular community or religion. It is true that one of the assailants was in saffron dhothi. But it is a subsequent version given at the time of his examination. So, the chances of tutoring even at the time of FIS cannot be ruled out. Crl.Appeal No.114 of 2014 10 9. Another discrepancy brought out by the prosecution is that in the FIS what is stated by PW1 is that the accused persons, after the alleged attack, went away from the scene of occurrence in an auto rickshaw. But, an inconsistent version was given in his oral testimony that accused Nos.1 and 2, who are the assailants, ran away from the place of occurrence after the commission of offence. 10. Regarding the registration number of auto rickshaw his specific case in his oral testimony is that the auto rickshaw bearing registration No. KL-14/J 4638 was found stationed at the place of occurrence and he had noticed its registration number as he is aware of its importance when involved in a commission of offence, but omitted to state the same in the FIS, but he went on saying that he had disclosed the registration number of the auto rickshaw even at the time of FIS. But, FIS says otherwise. 11. The next discrepancy brought out by the prosecution that in the FIS what he had stated is that two persons came out of the auto rickshaw at the place of occurrence and on 11 Crl.Appeal No.114 of 2014 seeing their bike all on a sudden accused No.2 hit on the head of the victim with an iron rod. But, an entirely different version was advanced in his oral testimony that when they were proceeding through the road they had seen the auto rickshaw stationed at the place of occurrence and the two assailants were found standing behind the auto rickshaw. 12. Further, he had given an entirely inconsistent version in his oral testimony that he had seen the person who was sitting on the driver's seat of the auto rickshaw as well as the person who was sitting on its back seat. But, in the FIS an entirely different version was given stating that he did not see the auto rickshaw driver. 13. Further, nothing was mentioned with respect to the presence of the fourth person who was sitting inside the auto rickshaw, at the time of giving FIS. FIS was given after 4 hours of the incident and after getting information regarding the death of the victim. Even according to him, he had contacted with several persons by that time and intimated the incident. The FIS given after four hours are shrouded in Crl.Appeal No.114 of 2014 12 inconsistencies rather than consistencies. The inconsistencies brought out looms so large, being an appeal against acquittal and in the absence of compelling reasons or perversity it is not at all fit and proper to overturn the view taken by the lower court disbelieving the oral testimony of PW1. The conduct of Test Identification Parade on PW1, hence is of no use. 14. The learned Public Prosecutor submitted that there are materials to corroborate the oral testimony of PW1 and it can be safely acted upon as it stands corroborated by the oral evidence of PW2 and the recovery of material objects based on the disclosure statement (confession) of accused Nos.1 and 2. The oral evidence tendered by PW2, though not an eye witness to the alleged incident, being the first person who rushed to the place of occurrence, would stand on a high pedestal when it is found to be truthful and inspires confidence. PW2 had identified accused Nos.1 to 4. All of them are not known to him. During cross examination, he had admitted that he had seen only the backside of accused Nos.1 and 2 after the incident while they were on their heels and Crl.Appeal No.114 of 2014 13 stated that they might be the two persons, he had seen, who were standing on the backside of the auto rickshaw when he is on the way to his house. But, no such statement was given before the Investigating Officer. No Test Identification Parade was conducted to PW2 to identify accused Nos.1 to 4, though all these accused persons are not known to him. So, his identification of accused Nos.1 to 4 cannot be accepted. 15. He is not an eye witness to the alleged incident. According to him, he rushed to the spot on hearing the screaming and crying of the victim and found the victim in a pool of blood. After him, his wife also came there followed by one Sahira. Thereon, he proceeded towards Madhur so as to bring up an auto rickshaw, but he could not, and returned to the place of occurrence. By that time, PW1, Sherief, Afsal, Sarfraz were found in the place of occurrence. PW1 along with Afsal went to the house of Rishad (victim) to intimate the incident. But, an entirely inconsistent version was given by PW1 stating that he had seen the entire incident and PW2 came there hearing the cry followed by his wife Khadeeja and Crl.Appeal No.114 of 2014 14 one Sahira, a neighbour. Thereon PW1 went to a nearby shop room situated on the side of the 'kandam road' and intimated the incident to Sherief, Sarfraz and Afsal and came back along with them. At that time, PW2 along with his wife Khadeeja and Sahira were present in the place of occurrence. On seeing the victim stained with blood, he went for hiring an auto rickshaw. When he returned back, he had seen PW1, Sherief, Afsal and Sarfraz at the place of occurrence. This would show that according to PW2, he had seen PW1, Sherief, Afsal and Sarfraz only when he returned to the place of occurrence from the auto rickshaw stand. But, a different inconsistent version was deposed by PW1 stating that when they came to the place of occurrence (PW1, Sherief, Afsal and Sarfraz), PW2 along with his wife Khadeeja and Sahira were there in the place of occurrence. As discussed earlier, his identification of accused Nos.1 to 4 cannot be accepted as they were not known to him and no Test Identification Parade was conducted. So, the oral testimony of PW2, would not, in any way, give any corroboration or support to the oral evidence of PW1 and will Crl.Appeal No.114 of 2014 15 not give any assistance to the prosecution. 16. Both the weapons used for inflicting injuries, MO1 iron rod and MO2 knife, were found to be stained by human blood, on chemical analysis (Exhibit P85 FSL report). But the alleged recoveries based on the respective disclosure statements of accused Nos.1 and 2, have not been accepted by the lower court on the reason that the witnesses to the alleged recoveries were persons from distant places and belonged to the community of the victim. PW17 is a resident of Thalangaratheruvu, who is the witness to the recovery of MO2 knife, MO3 saffron dhothi, MO4 brown shirt, MO5 blue jeans and MO6 T-Shirt. His residence is situated 1.5 kilometers away from the recovery place. PW18 is the witness to the recovery of MO1 iron rod. He is also a resident of Thalangara and his residential place is situated 1 3/4 kilometers away from the recovery place. The alleged recoveries of MO2 to MO6 were made from a distant place situated at Kelugudde-Kuchikkad and recovery of MO1 was effected from Battampara Junction, Karanthakkad-Madhur Crl.Appeal No.114 of 2014 16 Road. No witness from that place was either cited as a witness to the recovery or examined in proof of recovery and hence without sufficient corroboration it cannot be acted upon. 17. The various telephone calls originated would not, in any way, support the prosecution case as there is nothing to connect the same with the alleged incident. In short, being an appeal against acquittal, unless there is compelling reasons or perversity, we are of the view that it is not safe to overturn the finding rendered by the learned Sessions Judge acquitting the accused and hence the appeal fails, deserves only dismissal and we do so. In the result, criminal appeal is dismissed. Sd/- ## **A.M.SHAFFIQUE (JUDGE)** Sd/- ## **P. SOMARAJAN (JUDGE)** DMR/-