State of Kerala v. Ramankutty Haji and Abdul Khader @ Abdu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **CRL.A.No.50 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 29/1998 DATED 05-11-2003 OF ASSISTANT SESSIONS JUDGE, OTTAPPALAM** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.330/95 OF MANNARKADU POLICE STATION).** **BY SRI.K.B.UDAYAKUMAR, SR. PUBLIC PROSECUTOR** ## **RESPONDENTS/ACCUSED 1 & 2:** **1 RAMANKUTTY HAJI, S/O SAIDALIKUTTY, POLLAKUNNAN HOUSE, NELLIPUZHA, MANNARKKAD. 2 ABDUL KHADER @ ABDU, S/O HAMSAKUTTY HAJI, POLLAKKUNNAN HOUSE,, NELLIPUZHA, MANNARKKAD.** **R1 BY ADV. SRI.SUNNY MATHEW R2 BY ADV. SUNNY MATHEW** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-11-2020, THE COURT ON 03-12-2020 DELIVERED THE FOLLOWING:** CRL.A.No.50 OF 2005 2 ## **JUDGMENT** ## **Dated this the 3rd day of December 2020** This appeal is filed by the State of Kerala, challenging the judgment dated 05.11.2003 in Sessions Case No.29/1998 of the Assistant Sessions Judge, Ottappalam by which the accused in this case is acquitted. The alleged incident in this case happened about 25 years back. The respondent Nos. 1, 2 and others were chargesheeted by the Mannarkkad Police, alleging offences punishable under Sections 143,147,148,450,323,324 and Section 307 read with Section 149 of I.P.C. 2. Gist of the prosecution case is as follows : On 23.06.1995 at about 12.30 hrs at night, at Jawahar Nagar of Punchakode in Thankara amsom accused Nos. 1 to 5 in this case came together in a car bearing Registration No.KL8.D/545 and formed themselves into an unlawful assembly armed with deadly weapons such as knife, sticks., committed rioting and in prosecution of the common object of the unlawful CRL.A.No.50 OF 2005 3 assembly of committing murder of C.W.1 as a result of the enmity towards C.W.1 in initiating steps for the demolition of the building constructed by accused Nos. 1 and 2 without sanction of the Panchayat in the executive meeting of the Mannarkkad Panchayat in his capacity as a member of the Panchayat, all accused persons criminally trespassed into the house of CW.1 in order to murder him and thereby accused No.1 pointed out CW.1 to the other co-accused and gave instruction to them to kill CW.1 and accordingly accused No.1 voluntarily caused hurt to CW.1 by beating him on his head with a wooden reaper and while so accused Nos.3 and 4 beat him with sticks and when CW.2, the wife of CW.1 tried to restrain them, she was stabbed by accused No.5 with a knife causing injuries on her arm and accused No.5 kicked CW3 on his chest and right leg thereby causing injuries to him and therefore, all the accused persons have committed the offences punishable under Sections 143,147,148,450,324,323 and Section 307 read with Section 149 of the I.P.C. CRL.A.No.50 OF 2005 4 3. Only the first and second accused faced trial before the lower court. As per the impugned judgment, it is seen that the case against the other accused is splitted. Therefore, this Court directed the Registry to get a report from the lower court to find out whether the other accused faced trial. The Assistant Sessions Judge, Ottappalam and Judicial Magistrate Court, Mannarkkad, forwarded a report as directed by this Court. In the report submitted by the Assistant Sessions Judge, Ottappalam, it is stated that the case against the fourth accused was split up as Sessions Case No.363/2001. Thereafter, it was transferred to Long Pending Register as LP. 3/2001. Subsequently, this case was renumbered as SC. 107/2012 and it was transferred to Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Mannarkkad. The case against the 5[th] accused was split up and numbered as SC. 194/1999 and it is now pending as LP. 1/2000. The Judicial First Class Magistrate, Mannarkkad, informed that the case against the 3[rd] accused is now pending before that Court as LP. CRL.A.No.50 OF 2005 5 12/1999. 4. As I said earlier, only first and second accused faced trial. To substantiate the case, the prosecution examined PW1 to PW22. Exhibits P1 to P18 are marked on the side of the prosecution. One exhibit is marked as D1 on the side of the defence. MO1 to MO7 are the material objects. After going through the evidence and the documents the trial court found that the first and second accused is not guilty and they were acquitted as per the impugned judgment. Aggrieved by the above, this criminal appeal is filed. 5. Heard the learned Public Prosecutor and the learned counsel for the accused. 6. The learned Public Prosecutor submitted that the grounds for acquitting 1[st] and 2[nd] accused are flimsy in nature. The learned Public Prosecutor also submitted that when there is oral evidence to establish that the 1[st] and 2[nd] accused committed the offence, the trial court acquitted the case on silly reasons. The Public Prosecutor submitted that this is a fit case in which this Court should interfere with the acquittal CRL.A.No.50 OF 2005 6 order passed by the lower court. 7. The learned counsel for the accused submitted that, the alleged incident happened about 25 years back. The trial court after considering the entire oral and documentary evidence, came to a definite conclusion that the first and second accused are not guilty of the offences. The learned counsel for the accused submitted that this is an appeal against acquittal. The learned counsel submitted that there is nothing to interfere in an appeal against acquittal at this distance of time. The counsel submitted that the trial court after going through the entire oral and documentary evidences and after scanning the entire evidences, concluded that the accused is not guilty. Hence the counsel submitted that this Court may not interfere with the well considered judgment of the lower Court. 8. The point for consideration in this appeal is whether the acquittal order passed in favour of the 1[st] and 2[nd] accused/ the 1[st] and 2[nd] respondents in this appeal is justifiable or not. CRL.A.No.50 OF 2005 **==> picture [7 x 7] intentionally omitted <==** 9. This is an appeal against acquittal. The jurisdiction of this Court to interfere in an appeal against acquittal is settled by several judgments of this Court and the Apex Court. It is settled by several judgments that the presumption of innocence is strengthened once the accused is acquitted by the lower court. 10. 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) which consider earlier decisions also is extracted hereunder: _“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 CRL.A.No.50 OF 2005 8 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.” **==> picture [355 x 34] intentionally omitted <==** _“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_ CRL.A.No.50 OF 2005 9 _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, I have to consider this appeal against acquittal. The trial court after considering the entire oral and documentary evidence and also watching the demeanor of witnesses came to a conclusion that accused Nos.1 and 2 are not guilty for the offences alleged. The trial court considered the evidence in detail from paragraph 29 to 33. Paragraph 29 to 33 of the impugned judgment is extracted hereunder: **==> picture [298 x 12] intentionally omitted <==** _counsel for the accused that A1 and A2 were very well known to PW1 and that if A1 and A2 had any role to play in the matter, PW1 ought to have mentioned the names of A1 and A2 to the doctor who examined PWs 1 and 2. If he omitted_ CRL.A.No.50 OF 2005 10 _to mention the names of accused NO.1 and accused No.2 to the doctor who examined him, that is a material omission. PW1 deposes that he is an active worker of Muslim League. He does not know whether the second accused is a sympathizer of P.D.P. No identification parade was conducted to identify accused Nos. 3 to 5. According to him he has nothing to say if it is not seen recorded in his first information statement that Hamsa and his wife witnessed the incident in this case. He deposes that he stated this fact to the Police. Since the investigation conducted by the Police was not satisfactory, he filed a complaint before the Superintendent of Police and on the basis of that complaint the police re investigated the case. According to PW17 what PW1 stated to him is that when accused NO.1 entered into the sit out, accused No.2 was present there. But what PW1 sated in his chief examination is that first of all accused No.1 entered into the sit out uttering the words '_ അവന തനന എടട _,_ അടടകടട അവനന അടടചച നകടലടട _'. Immediately thereafter accused No.2 also entered into the sit out. But what PW17 states before Court is that accused No.2 was present in the sit out when accused No.1 entered into the sit out. PW1 deposes at the time of cross-examination that his children and the children of Hamsa might be friends. He admits that his children_ CRL.A.No.50 OF 2005 11 _and Hamsa's children were co-accused in Crime No.225/96 on the allegation that they committed assault on 27-05-1996 against a person of the Law College. Hamsa is a worker of the INTUC. At the time of cross-examination PW1 deposes that he does not remember whether accused No.1 pointed his finger against him. If it is so seen in his statement, it is not correct. PW17 the investigating officer deposes that PW1 has not stated before him that accused No.1 entered into the sit out. What PW1 stated before him is that accused No.1 uttered the words '_ അടടകടട _' by pointing out his finger. But according to PW1 it is not correct to say that accused No.1 pointed out him. At the time of cross-examination PW1 admits that M.O.1 is a reaper. He admits that he knows the difference between a kuruvadi and a reaper. But what PW1 stated in his chief examination is that he was beaten by a 'kuruvadi'-maravadi. He admits that he has not stated in Ext.P1 that what was used by the accused is a reaper. According to him what he has stated is that he was beaten with a stick. PW1 stated in Ext.P1 F.I. Statement that he was beaten with a stick. On a perusal of Ext.P1 F.I.statement it is seen that what accused No.1 uttered at the time of incident is_ _'_ അവനതനനഎടട _,_ അടടകടടഅവനന _'. But what PW1 stated at the time of his examination before court is that accused No.1 uttered the_ CRL.A.No.50 OF 2005 12 _words '_ അവനതനനഎടട _,_ അടടകടടഅവനനഅടടചച നകടലടട _'. According to PW1 he has stated the names of the accused before the doctor. But according to the doctor he has not noted the names of the assailants since their names were not stated to him. A1 and A2 were very well known to PW1. There is no explanation for the fact as to why their names were omitted to be mentioned to the doctor._ _30. PW6, the doctor who issued Ext.P2 to P4 wound certificates deposes that the injuries noted in those documents are simple in nature. If actually three persons had inflicted blows on PW1, the resultant injuries would not have been so simple as noted in Ext.P2, especially when blows are dealt with a stick like M.O.1. Actually if the intention was to cause death, more serious injuries might have been inflicted. The injury sustained by PW2 is a lacerated wound 1cm x 1 ½ cm in between the thumb and index finger of left hand. The allegation is that it was caused by stabbing with M.O.6 knife. Ext.P3 is the wound certificate in respect of Fathima who was examined as PW2 in this case. PW6 the doctor has stated in cross-examination that the injury noted in Ext.P3 wound certificate cannot be inflicted with M.O.6 knife. Ext.P4 is the wound certificate in respect of CW3 Shamas. He was not examined in this case. The only injury_ CRL.A.No.50 OF 2005 13 _noted on the person of CW3 Shamas is an abrasion 1 cm x 1 cm just above the right elbow. PW6 the doctor deposes that this injury could be caused by a scratch. Therefore it is seen that the wound certificates and the injuries noted therein do not tally with the case of the prosecution. Moreover on a perusal of Ext.P1 it is seen that originally the case was registered under Sections 143,147,148,452,323 and 324 read with 149 of the Indian Penal Code. Subsequently offence under Section 452 I.P.C. was converted into an offence under Section 450 of the Indian Penal Code and offence under Section 307 I.P.C was added subsequently. PW1 deposes that accused No.1 was standing outside, by the side of the sit-out. But PW3 says that accused No.1 was standing on the road and that he came to the place of occurrence only later. It is seen that truth and falsehood are so much intermingled in this case. According to the prosecution, three other accused are also involved in the incident. It is doubtful as to what was the manner in which the alleged incident took lace. The prosecution case is that two persons out of accused Nos.3 to 5 also participated in the matter of attacking PW1. If so, the injuries on PW1 could be caused by the act of anyone of the accused. The prosecution case is that A2, after beating PW1 with M.O.1 left M.O.1 at the place of the_ CRL.A.No.50 OF 2005 14 _alleged incident. If that be so, M.O.1 would have been recovered from the sit-out of the house. But Exhibit P5 scene mahazar shows that stick was recovered from the Paramba and not from the sit-out of the house. The prosecution case regarding the recovery of M.O.1 stick is also doubtful in nature._ _31. It is further seen that P.W.3 who is head-load worker,is a close friend of P.W.1 and that the sons of P.W.1 and P.W.3 were coaccused in a criminal case in which a law college student was attacked. The wife of P.W.3 who was cited as a witness in this case was not examined. Hence P.W.3 is the only independent witness who is alleged to have witnessed the incident other than P.W.2, who is the wife of P.W.1._ _32. The motive alleged by the prosecution is that P.W.1 demanded in the Panchayat Committee meeting that action should be taken against accused Nos.1 and 2 for having violated building rules in the construction of a building in Mannarkkad town. But on a close scrutiny it is seen that decision was taken by the Panchayat Committee and not by P.W.1 alone. P.W.1 had no independent role to play in that matter. He was only a member of the Panchayat Committee. Moreover, the matter was taken before the Hon'ble High Court and the Hon'ble High Court had stayed the further proceedings in the matter. For the reason that the names of accused_ CRL.A.No.50 OF 2005 15 _Nos.1 and 2 were not stated to P.W.6 doctor, it is seen that accused No.1 and accused No.2 might have been implicated in the case on the basis of an afterthought. Since the dispute regarding the unauthorised construction of the building was stayed by the Hon'ble High Court of Kerala, it is further seen that there was no sufficient reason for accused No.1 and accused No.2 to keep any grudge in their mind against P.W.1 for that specific reason._ _33. Taking into consideration the entire evidence adduced in this case, it is seen that the prosecution has not succeeded in proving the guilt of the accused beyond reasonable doubt. The prosecution case is meddled with so many improbabilities and riddled with material contradictions. Therefore benefit of doubt has to be given to accused Nos. 1 and 2 and they are only to be acquitted. Point Nos. 1 and 6 are answered accordingly. “_ ## 12. I see no reason to disagree with the findings of the trial court. As I said earlier, the trial court after going through the entire oral and documentary evidence, discussed the same in detail and thereafter acquitted the accused. CRL.A.No.50 OF 2005 16 Hence, there is nothing to interfere in an appeal against acquittal. Therefore, this criminal appeal is dismissed confirming the judgment dated 05-11-2003 in Sessions Case No.29/1998 on the files of the Assistant Sessions Judge, Ottappalam. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** jms //True Copy// P.A to Judge