State of Kerala v. T.M.C. Chandran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 12TH DAY OF JULY 2012/21ST ASHADHA 1934 CRL.A.No. 826 of 2012 (C) ------------------------ (CC.No.406/2009 of JUDL.MAG. OF FIRST CLASS, PAYYOLI) APPELLANT/COMPLAINANT: ---------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI P.M. SANEER. RESPONDENTS/ACCUSED: ---------------------- T.M.C.CHANDRAN, S/O.KELAPPAN, URUNIKUNNUMMAL HOUSE, MUYIPPOTH 673524. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A No. 826 of 2012 ----------------------------------------** Dated the 12[th] day of July, 2012 ## **JUDGMENT** The above appeal is filed by the State of Kerala under section 378(3) of th Criminal Procedure Code against the judgment dated 29.3.2012 of the court of the Judicial First Class Magistrate, Payyoli in C.CNo.406 of 2009 as the State aggrieved by the order of acquittal recorded by the trial court in favour of the accused who faced prosecution for the offences punishable under sections 341 and 324 of the Indian Penal Code. 2. The case of the prosecution is that on 28.7.2009, at 8.p.m the accused wrongfully restrained PW1 and voluntarily caused hurt on him by beating with iron bar and as result of the same, PW1 sustained injury on his face just below the right eye. Thus according to the prosecution, the accused has committed the offences punishable under sections 341 and 324 IPC and based upon the said allegation, crime No.143/2009 was registered in the Meppayur police station. 3. On completing the investigation, a report was filed CRA 826/12 **:-2-:** based upon which cognizance was taken in the trial court for the offences punishable under sections 341 and 324 IPC and thus instituted C.C.No.406 of 2009. To prove the prosecution allegation, the prosecution got examined PWs 1 to 7 and produced Exts.P1 to P6. No material object is produced. The trial court , after considering the entire evidence and materials, has found that no reliable evidence is adduced by the prosecution to prove that the accused beat on the face of PW1 with iron bar and therefore, the accused cannot be held liable for the offence alleged against him. Accordingly, the learned Magistrate acquitted the accused under section 248(1) Cr.P.C It is the above finding and order of acquittal challenged in this appeal. 4. I have heard Sri P.M. Saneer, the learned Public Prosecutor appearing for the State. 5. The learned Public Prosecutor submitted that PW1 is the injured in this case and his evidence in the court positively proved that he had sustained injury just below his right eye connected with the incident taken place on 28 . CRA 826/12 **:-3-:** 7.2009. According to the learned Public Prosecutor there is nothing to disbelieve PW1, but the learned Magistrate refused to act upon the evidence of PW1, who is the injured. It is also the submission of the learned Public Prosecutor that the evidence of PW1 is further corroborated by the evidence of PW2 who was along with PW1 at the time of the alleged incident. But the learned Magistrate miserably failed to appreciate the evidence of PW2 whose evidence is corroborated the evidence of PW1. It is the further submission of the learned Public Prosecutor that the medical evidence that consists, the deposition of PW3, the doctor who examined PW1, and Ext.P2 wound certificate positively proved the injury sustained by PW1 connected with an incident that taken place on 28.7.2009. Thus, according to the learned Public Prosecutor, overlooking the above materials and evidence, the trial court came into an erroneous conclusion and held that PW1 is unbelievable and consequently, the accused is acquitted. Therefore, the findings of the court below and the order of acquittal recorded in favour of the accused are liable to be interfered with and the CRA 826/12 **:-4-:** respondent/accused is liable to be convicted for the offence charged against him by reversing the order of acquittal. 6. I have carefully considered the arguments advanced by the learned Public Prosecutor I have perused the deposition of the material witnesses, which made available to me by the learned Public Prosecutor, and I have also perused the judgment of the trial court impugned in this appeal. 7. In the light of the arguments advanced by the learned Public Prosecutor and in the light of the findings of the court below on the basis of the evidence and materials referred to in the judgment impugned, the question to be considered is whether the appellant has succeeded in making out a prima facie case so as to interfere with the findings of the court below and the order of acquittal recorded in favour of the respondent/accused. The crux of the prosecution case is that on 28.7.2009 at about 8.p.m., the accused beat PW1, the de facto complainant, with an iron bar and thereby PW1 sustained injury on his face just below to his right eye. Whereas the specific defence taken by the accused is that , CRA 826/12 **:-5-:** while PW1 the injured and PW2 were travelling on a motor bike , on seeing the accused and one Latheef, they suddenly turned the bike and consequently they fell down and sustained injury and the present case was registered at the instance of PW2 who is inimical to the accused. Now Iet us examine the findings of the court below and the reasons assigned thereto in acquitting the accused. 8. In paragraph 6 of the judgment, the learned Magistrate has elaborately considered the evidence of PW1 as well as other evidence on record. It is also relevant to note that , during the examination of PW1, PW1 has stated that when he cried aloud, one Mukesh and Babu came over there, who took PW1 to the Government Hospital. It is also relevant to note that the said Babu is not examined in this case. The learned Magistrate has also found that PW1 has admitted that two months back, there was a quarrel between himself and the accused but according to PW1, the same was settled . But the learned Magistrate has specifically found that during cross examination of PW1 he had deposed that no statement was CRA 826/12 **:-6-:** given to the police to the effect that two months back there was quarrel between himself and the accused. In paragraph 8 of the judgment, the learned Magistrate has found that PW1 has deposed that when he gave Ext.P1 FIS to the Police, he had stated that he was beaten by the accused with an iron pipe and not stated that the accused beat him with a small stick and he had not given any statement to the police that accused threw away the stick which was used to beat him. According to the learned Magistrate, he had deposed before the court that , if any such version is seen in his deposition, it is not correct. It is observed by the learned Magistrate that, according to PW1, he had not stated the name of one Latheef to the doctor to whom he told about the incident and he had also stated that he does not know the Latheef whose name is mentioned in the wound certificate by the doctor. PW1 has also stated that the incident was taken place in front of the shop of one Moidy and he had seen the incident. 9. In paragraph 9 of the judgment, the learned Magistrate has also considered the evidence of PW2 and as per the CRA 826/12 **:-7-:** evidence of PW2, he had witnessed the incident and the accused beat on the right eye of PW1 with an iron bar and he saw the incident in the tube light. But during the cross examination of PW2, he had stated that the weapon used for attacking PW1 was iron pipe . He had reinstated that , when he gave the statement to the police, he said that the accused used an iron pipe. According to him he did not depose before the police that the accused beat PW1 with stick and thereafter he was pushed down. PW2 has also stated that there are several shops near to the place of occurrence. PW2 has further stated that, Latheef is a friend of the accused and there was no prior incident or quarrel between PW2 and the accused. PW2 also claimed that he had sustained injury when he tried to resist the beating of the accused upon PW1. 10. In paragraph 10 of the judgment, the learned Magistrate has considered the medical evidence. According to PW3 - the doctor, the injury noted by him can be caused by falling on a rough surface. PW3 has stated that there was lacerated injury on the right eye lid. During the evidence of CRA 826/12 **:-8-:** PW3, it can be seen that he had noted only one injury , i.e., a lacerated injury seen at the right eye lid of the injured. From the deposition of PW3, which made available to me by the learned Public Prosecutor, it can be seen that no attempt was made by the prosecution to prove that PW1 had sustained injury on his face just below the right eye. 11. The learned Magistrate has evaluated the evidence of the prosecution in detail as per his discussion in paragraph 12 of his judgment. On such discussion and evaluation of the evidence of PWs 1 and 2 and the medical evidence, the learned Magistrate has found that, there are several contradictions in the prosecution evidence, and, the evidence of PWs 1 and 2 are inconsistent. On several material points, the evidence of PW1 and PW2 are contradict each other. However, the learned Magistrate has also found that, the injury which is seen on the face just below the right eye is a lacerated wound, and the doctor who examined PW1 has stated in his cross examination that the injury noted can be caused by falling on rough surface. The learned Magistrate has also refused to accept CRA 826/12 **:-9-:** the evidence of PW2 for various reasons assigned in paragraph 14 of the judgment. Thus, the outcome of the scrutiny of the judgment of the trial court is to the effect that, the prosecution has miserably failed to examine the material witnesses, the nearby shop owners and also one Babu who claimed to have taken the injured to hospital as claimed by the injured himself. PW1 has suppressed the fact , with regard to the quarrel taken place two months back, before the police and before the court and the said fact he had admitted only during his cross examination. But PW2 denied the entire prior incident which is admitted by PW1, in the cross examination. Regarding the weapon used, the evidence of PWs 1 and 2 are also, according to the learned Magistrate, is not convincing and trustworthy. Suffice to say, no material objects is produced by the prosecution during the trial of the case. The inconsistent version of PWs 1 and 2 regarding the weapon used , and the non production of the physical evidence, namely, the weapon used, assumes much importance in the present case, particularly , in the light of the defence version regarding the CRA 826/12 **:-10-:** incident and the opinion expressed by PW3, the doctor. PW3, the doctor has deposed that the injury noted in Ext.P2 can be caused on falling on a rough surface. In Ex.P2 wound certificate , what noted by the doctor is a lacerated wound injury on the eye lid of PW1. If the weapon used is iron bar or iron pipe, the resultant injury would not have been in the nature noted by PW3. The above facts probablise and justify the defence plea that the injury sustained by PW1 was a result of his fall on a rough surface when the motor bike, in which PWs 1 and 2 were going, suddenly turned back on seeing the accused and Latheef. It is also relevant to note that, in Ext.P2 wound certificate, the name of Latheef is shown as the aggressor. Though PW1 denied and stated that he never disclosed the name of Latheef to PW3, there is no explanation from the side of the prosecution as to how the name of Latheef has been incorporated and appeared in Ext.P2 certificate. In the light of the above facts, it can be safely presumed that, what ever may be reasons, PW1 sustained the injury in an incident in which Latheef was a CRA 826/12 **:-11-:** party, especially when PW2 admitted that the said Latheef is the friend of the accused and those facts further probablise the case of the accused as to how PW1 sustained injury. But the prosecution did not made Latheef as accused and has chosen to proceed only against the present accused, Mr. Chandran. 12. In the light of the above facts, and circumstances and the evidence and materials on record, I am of the view that the learned Magistrate of the trial court refused to believe the prosecution case and also disbelieved PW1, the injured, for which sufficient reasons are assigned and those reasons are supported by the evidence and materials on record. The appellant has no case that the learned Magistrate has overlooked any evidence or materials which is in favour of the prosecution. 13. In a recent decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex CRA 826/12 **:-12-:** ## court has held: “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence.” Thus on examination of the facts and circumstances involved in the present case and the finding of the trial court in the impugned judgment, in the light of the dictum laid down by the Apex Court in the decision cited supra, I am of the view that the appellant has miserably failed to make out any exceptional case or compelling reasons so as to interfere with the finding and the order of acquittal recorded by the trial court or to hold that the judgment is a perverse one. If that be so, there is no scope for any interference with the findings recorded by the trial court and also the order of acquittal in favour of the accused. Thus according to me, the appellant has CRA 826/12 **:-13-:** miserably failed to make out a prima facie case so as to entertain the appeal any further. In the result, there is no merit in this appeal. Accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE** kvm/- CRA 826/12 **:-14-:**