Thomas George v. Reji Cheriyan, Sam John, Ganesh Kumar, and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2012/21ST BHADRA 1934 Crl.L.P..No. 422 of 2012 () --------------------------(AGAINST THE JUDGMENT DTD.31.10.2011 IN CC.196/2006 of J.M.F.C.III,TRIVANDRUM) PETITIONER/COMPLAINANT: ---------------------- THOMAS GEORGE S/O.V.K.GEORGE, JESSY BHAVAN, WARD NO.10 BENEDICT NAGAR, NALANCHIRA, THIRUVANANTHAPURAM. BY ADV. SRI.THOMAS J.ANAKKALLUNKAL RESPONDENTS/ACCUSED AND STATE: ------------------------------ 1. REJI CHERIYAN TEACHER GOVERNMENT HIGHER SECONDARY SCHOOL FOR DEAF AND DUMB JAGATHY, THIRUVANANTHAPURAM-695001. 2. SAM JOHN TEACHER GOVERNMENT HIGHER SECONDARY SCHOOL FOR DEAF AND DUMB, JAGATHY, THIRUVANANTHAPURAM-695001. 3. GANESH KUMAR TEACHER GOVERNMENT HIGHER SECONDARY SCHOOL FOR DEAF AND DUMB JAGATHY, THIRUVANANTHAPURAM-695001. 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. R1 TO R3 BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR BY ADV. SRI.V.S.THOSHIN. R4 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 12- 09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 422 of 2012** **---------------------------------------Dated this the 12[th] day of September, 2012** ## **O R D E R** The complainant in a private complaint is the petitioner herein, who seeks leave of this Court under Section 378(4) of the Cr.P.C. to file an appeal against the judgment dated 31.10.2011 in C.C.No.196/2006 of the court of the Judicial First Class MagistrateIII, Thiruvananthapuram, since the learned Magistrate acquitted the accused three in numbers who faced the prosecution for the offences punishable under Sections 323,354 read with Section 34 of I.P.C. 2. Heard counsel for the petitioner and the respondents. 3. The case of the petitioner/complainant is that the wife of the complainant, who was working as a teacher in the Deaf School at Jagathy, Thiruvananthapuram, has not participated in the indefinite strike observed by the government employees and the teachers since 6.2.2002 and she attended the school on those days. While so, on 12.2.2002, the complainant carried his wife to the school in his CRL.L.P.No.422 of 2012 :-2-: scooter as a pillion rider and when they reached in front of the school, the accused along with eight others had confined them and the third accused pasted some deleterious dust on the neck and hand of his wife and beat her. Thereafter, the third accused beat the complainant on his left hand and the first accused kicked on his abdomen and the second accused bet on his left hand and caused him to sustain hurt. It was also alleged that the first accused had picked out Rs.350/- from his shirt's pocket and threatened him that they would further attack and accordingly, the wife of the complainant could not perform her duty in the school. It is the further case of the complainant that the wife of the complainant already informed the incident in the Museum Police Station and accordingly, Crime No.48 of 2002 was registered against the accused and after investigation, a final report was filed only for the charge under Sections 342,323,324 and 354 read with Section 34 of I.P.C., which was tried as C.C.No.1024 of 2002. According to the complainant, in the Police charge, the other offences under Sections 143,147,148 and 392 were omitted to be included against the accused CRL.L.P.No.422 of 2012 :-3-: and therefore,the petitioner preferred the present complaint alleging the offences punishable under Sections 143,147,148,323,354,341 and 397 read with Section 149 of I.P.C. 4. On receipt of the complaint, the trial court has recorded the sworn statement of the complainant and took cognizance only for the offences punishable under Sections 323,354 read with Section 34 of I.P.C. against accused Nos.1 to 3 and tried the case as C.C.No.196 of 2006. When the accused appeared in the complaint, a charge was framed for the said offence and they pleaded not guilty to the said charge and thereafter, Pws.1 to 4 were examined and Exts.P1 and P2 were marked. From the side of the defence, Ext.D1 was also marked. The trial court finally has not prepared to accept the case of the complainant and accordingly, acquitted the accused. The trial court is also of the opinion that there was no reasonable ground for the complainant in making the accusation against the accused or any of them and accordingly, found that show cause notice is to be issued to the complainant as to why he should not pay compensation to the CRL.L.P.No.422 of 2012 :-4-: accused. Thus, all the accused are found not guilty for the offences under Sections 323 and 354 read with Section 34 of I.P.C. and accordingly, they are acquitted under Section 255(1) of the Cr.P.C. It is against the above findings and order of acquittal and also against the order to issue show cause notice for awarding compensation, the petitioner proposes to file an appeal for which leave of this Court is sought for. 5. Learned counsel for the petitioner vehemently submitted that the findings of the court below are incorrect and the learned Magistrate failed to consider the available evidence mainly that of Pws.1 and 2 and came into a wrong conclusion and erroneously acquitted the accused. Thus, according to the counsel, in case an appeal is entertained, there is every possibility to interfere with the order of acquittal recorded in favour of the accused. 6. On the other hand, the counsel for the respondents/accused submitted that the findings of the court below are purely based upon the evidence and materials on record and after its CRL.L.P.No.422 of 2012 :-5-: due appreciation and evaluation. Hence, the findings of the court below cannot be treated as perverse and illegal and therefore, the petitioner is not entitled to get special leave as sought for. 7. I have carefully considered the contentions advanced by counsel for the petitioner as well as the respondents and I have perused the judgment of the trial court. In the light of the rival contentions and the evidence and materials referred to by the learned Magistrate in the impugned judgment, the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of his proposed challenge against the finding of the court below and the acquittal recorded in favour of the respondents/accused. 8. At the outset, it is to be noted that in terms of the show cause notice issued on the basis of the finding in the present judgment, the petitioner has already paid the compensation amount to the accused. It is also relevant to note that in similar set of circumstances and facts, the Police has already registered a crime based upon which C.C.No.1024 of 2002 was instituted and the accused in the said case, CRL.L.P.No.422 of 2012 :-6-: who is the accused in the present case, is acquitted by judgment dated 31.10.2011 in C.C.No.1024 of 2002 and no appeal is filed against the above acquittal either at the instance of the State or the de facto complainant therein or the complainant herein, who is examined as one of the witnesses in that case and thereby, the above order of acquittal in the similar set of facts has become final. The present complainant has also not filed any appeal against the above judgment. 9. In paragraph 9 of the judgment sought to be impugned, the learned Magistrate has elaborately considered the entire evidence and materials on record and assigned the reasons to disbelieve the case of the complainant. The main reason, according to the learned Magistrate, to disbelieve the case of the complainant is the contradiction and discrepancy in the evidence of Pws.1 and 2 particularly, with respect to the facts after the alleged incident. The learned Magistrate has found that according to the complainant, after the alleged incident, PW2 the wife of the complainant went to the school and marked her attendance before the Principal and with the CRL.L.P.No.422 of 2012 :-7-: permission from the Principal, she went to the hospital and on their way, they visited the Police Station and the Police, on seeing the irritation and scratching suffered by his wife, gave a letter to the Hospital and accordingly, they went to the hospital and thereafter, returned to the Police Station and then, they gave a statement to the Police. But, in the evidence of PW1, PW1 went to the Police Station first and thereafter, the Police came to the spot and then, the Police gave chit to them to go to the hospital. Thus, regarding the presence of the Police, at the spot and the registration of the F.I.R. itself, is unbelievable because of the contradiction in the evidence of Pws.1 and 2. It is also relevant to note that to prove the incident, the only other witness examined is PW3, who claimed to be an independent witness, but the learned Magistrate has found in the light of Ext.D1 enquiry report that the presence of PW3 and his evidence to prove the incident cannot be believed since even according to the prosecution witnesses, the presence of no person is mentioned when they filed a petition before the Government for compensation. The said approach CRL.L.P.No.422 of 2012 :-8-: of the court below cannot be treated as perverse or illegal. 10. Another ground considered by the learned Magistrate is the delay in filing the present private complaint. Though the date of occurrence was on 12.2.2002, the present complaint was filed only during the month of November,2004. Of course, the complainant has tried to explain the delay, but that attempt was futile. The reason given by PW1/the complainant is that he came to know about the omission to incorporate Section 392 in the police charge and to implead the other accused only when he was examined in the case based upon the Police report in C.C.No.1024 of 2002, during the month of December 2005 and the above claim goes against the case of the complainant himself. The present complaint was filed during the month of November 2004, but he was examined in C.C.No.1024 of 2002 during the month of December 2005, that shows that he had filed the complaint even much earlier to his date of examination in the police case. So the delay that occurred, according to the Magistrate, in filing the complaint is not properly explained. CRL.L.P.No.422 of 2012 :-9-: 11. From the above discussion and materials and evidence, it can be seen that the findings of the court below are supported by the materials and evidence and therefore, it cannot be said that the findings of the court below are perverse. 12. In a recent decision of the Apex Court reported in v. **State of Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held:- “ _In cases where there are exceptional 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.”_ On examination of the facts and circumstances involved in the case and the findings of the court below, I am of the view that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. The petitioner has also failed to make out any substantial or compelling reason to interfere with the order of CRL.L.P.No.422 of 2012 :-10-: acquittal recorded in favour of the accused and thereby, to disturb the double presumption, which is bolstered by the judgment in question. In the result, there is no merit in the leave petition and accordingly, the same is dismissed. **V.K.MOHANAN** , Judge MBS/ CRL.L.P.No.422 of 2012 :-11-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 CRL.L.P.No.422 of 2012 :-12-: counsel for the is there is no Though respondent present, representation for the petitioner, in spite of the fact that the counsel sought time on 25.7.2012,10.8.2012,14.8.2012 and finally on 16.8.2012. The above approach of the petitioner shows that he is not interested in prosecuting this matter. Therefore, the above Criminal Leave Petition is dismissed for non-prosecution.