State of Kerala v. Sreedharan Laji @ Laji, Sathyan Ratheesh, Sreedharan Saju, Sasi Babu, Sathyan Shanavas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942** ## **CRL.A.No.2105 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 95/1996 DATED 10-12-1999 OF PRINCIPAL SUB COURT,TRIVANDRUM** ## **APPELLANT/S:** **STATE OF KERALA, REP. BY C.I. OF POLICE, KADAKKAVOOR.** ## **BY ADV. PUBLIC PROSECUTOR** ## **RESPONDENT/S:** |**1**|**SREEDHARAN LAJI @LAJI,**| |---|---| ||**AGED 30 YEARS**| ||**PELAKUDI VEEDU,**| ||**PANDAKASSALA,**| ||**CHIRAYINKIL DESOM,**| ||**SARKARA VILLAGE.**| |**2**|**SATHYAN RATHEESH,**| ||**AGED 28,**| ||**PUTHUVAL VEEDU,**| ||**VADAKKE ARAYATHURUTHY,**| ||**CHIRAYINKIL DESOM,**| ||**SARKARA VILLAGE,**| ||**(L.P.REGISTERED).**| |**3**|**SREEDHARAN SAJU,**| ||**AGED 28,**| ||**PALAKUDI VEEDU,**| ||**PANDAKASSALA,**| ||**CHIRAYINKIL DESOM,**| ||**SARKARA VILLAGE.**| |**4**|**SASI BABU,**| ||**AGED 24,**| ||**THONNAYAM VILAKAM VEEDU,**| ||**NALUMUKKU,**| ||**PERUNGUZHI DESOM,**| ||**AZHOOR VILLAGE**| Crl.A. No.2105 of 2005 2 **5 SATHYAN SHANAVAS, AGED 26, CHARUVILA PUTHEN VEEDU, MOONNUMUKKU, DO.DO.** **R1 BY ADV. J.JAYAKUMAR R1 BY ADV. SRI.J.JAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.2105 of 2005 3 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No.2105 of 2005 =================== Dated this the 30[th] day of October, 2020** ## **J U D G M E N T** This is an appeal filed by the State of Kerala challenging the judgment dated 10.12.1999 in S.C. No. 95/1996, on the file of Assistant Sessions Judge, Thiruvanathapuram. The above case is charge sheeted by the Circle Inspector of Police, Kadakkavoor alleging the offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 of the IPC. 2. The prosecution case is that because of the enmity of the 3[rd] accused towards the charge witness No. 1 in connection with the quarrel between them, at about 6.00 p.m. on 13.02.1995, all the accused with the common object of murdering CW1 formed themselves into an unlawful assembly with deadly weapons like sword, rods etc. at the property near Panthiyilvilakom house bearing No. CP.IV/1001 near Pandakassala Junction at Crl.A. No.2105 of 2005 4 about 11.p.m. on the same day and in furtherance of their common object the 1[st] accused gave a cut on the right leg of CW1 with a sword causing injury and fracture of the bone and the 2[nd] accused gave a cut on the right foreleg with a dangerous sword causing injuries and A3 gave a cut on his left leg with a sword causing injury and fracture of the bone and as a result of it he fell down and at that time the 3[rd] accused uttered that CW1 should be chopped of to death and on hearing that utterance the 4[th] accused attempted to cut on his head and he warded of the same as a result of which injury was caused on his left wrist and the 5[th] accused aided the other accused and thereby all the accused committed the above said offences. 3. To substantiate the case, the prosecution examined PW1 to PW12. Exhibits P1 to P12 are the exhibits marked on the side of the prosecution. Exhibits D1 to D3 are the exhibits marked on the side of defense. MO1 to MO3 are the material objects. 4. After going through the evidence and documents, the trial court came to the definite conclusion Crl.A. No.2105 of 2005 5 that, the accused is not guilty and they were acquitted. Aggrieved by the acquittal order, this criminal appeal is filed by the states. 5. Heard the learned Public Prosecutor and the learned counsel appearing for the respondents. 6. The learned Public prosecutor submitted that, there is adequate oral and documentary evidence to prove that, the accused committed the offences. The learned Public prosecutor submitted that, the trial court acquitted the accused on flimsy reason, when there is oral evidence, which is supported by the medical evidence. The learned Public prosecutor submitted that, the judgment of the trial court is perverse. 7. The learned counsel appearing for the respondents supported the judgment of the trial court. 8. The points for consideration in this appeal is whether the judgment of acquittal passed by the trial court is sustainable or not. 9. This is an appeal against the acquittal. The jurisdiction of this Court to entertain an appeal against Crl.A. No.2105 of 2005 6 the acquittal is very limited. Once the accused is acquitted by the trial court, the presumption of innocence is strengthened. This point is considered by the Apex Court in _**Chandrappa and others v. State of Karanataka (2007 (4) SCC 415)**_ . The relevant portions of the judgment of Chandrappa's case (supra) are 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 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** Crl.A. No.2105 of 2005 7 **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.”** **“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** Crl.A. No.2105 of 2005 8 **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).** 10. In _**Sampat Babso Kale and antoher V. State of Maharastra (AIR 2019 SC 1852)**_ the Apex Court again reiterated the above principles. The relevant portions of the judgment of Sampat Babso Kale's case (supra) are extracted hereunder: _**“Para:7 With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the**_ Crl.A. No.2105 of 2005 9 _**demeanour of witnesses. This Court in the case of Chandrappa and Ors. v. State of Karnataka, laid down the following principles.**_ _**“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:**_ _**(1) An Appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.**_ _**(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.**_ _**(3). Various expressions, such as,**_ _**“substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with**_ Crl.A. No.2105 of 2005 10 _**acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.**_ _**(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.**_ _**(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court”**_ 11. Bearing mind the above principle laid down by the Apex Court, I have to consider this appeal against the acquittal. 12. The trial court acquitted the accused mainly for the reason that, the registration of FIR in this case is Crl.A. No.2105 of 2005 11 highly suspicious. I perused the FIR and FI statement, which were marked in this case as Exts.P1 and P1(a). A perusal of the FIR will show that, the same reached the court on 17.02.1995. Usually, the FI Statement will be a part of the FIR. But strangely in this case, the FI Statement reached the court only on 21.02.1995. There is absolutely no explanation for the prosecution about this disparity. 13. The trial court considered the oral evidence of PW1 and PW8. The trial court after appreciating the evidence in detail found that, the evidence of PW1 and PW8 are inconsistent and not reliable. Several circumstances were relied by the trial court to discard the evidence of PW1 and PW8. The trial court after considering the entire oral and documentary evidence came to a definite conclusion that, the accused in this case is entitled the benefit of doubt. 14. I once again considered the entire oral and documentary evidence in this case and perused the impugned judgment. I see no reason to interfere with Crl.A. No.2105 of 2005 12 the acquittal order passed by the trial court. The trial court considered the entire evidence with great care and caution and thereafter rejected the same. The trial court will be in a better position to appreciate the evidence, because the trial court is watching the demeanour of the witnesses and thereafter appreciating the evidence adduced by them. The findings of the trial court is perfectly justified. Even if two views are possible, the appellate court can't reverse the acquittal order passed by the trial court. 15. Considering the entire facts and circumstances of the case, I think there is nothing to interfere with the impugned judgment. Therefore, this criminal appeal is dismissed confirming the judgment dated 10.12.1999 in S.C. No. 95/1996, on the file of Assistant Sessions Judge, Thiruvanathapuram. ## **(Sd/-)** ## **P.V.KUNHIKRISHNAN, JUDGE** LU