VELAYUDAN v. KRISHNAN, SIVAN, SAJEEV and STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934 Crl.L.P..No. 518 of 2012 ---------------------------- ST.1837/2005 of J.M.F.C.-I, ALUVA PETITIONER/COMPLAINANT: ------------------------- VELAYUDAN,S/O.KURUMBAN, KADAYAPPILLY HOUSE, EAST KADUNGALLOOR,U.C.COLLEGE.P.O ALUVA. BY ADV. SRI.K.S.RAJEEV (ALUVA) RESPONDENT/ACCUSED/RESPONDENT: ---------------------------------- 1. KRISHNAN,S/O.KUNJAYAPPAN,CHANDRATTUMPADY, KOTTAPURAM. 2. SIVAN,S/O.NEELAN,PUTHUVELLIPARAMBU, KANIYANKUNNU. 3. SAJEEV,S/O.SIVAN,PUTHUVELLIPARAMBU, KANIYAMKUNNU. 4. STATE OF KERALA, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.C.A.CHACKO } BY ADV. SRI.BENNY VARGHESE (THETTAYIL) } - FOR R1 to R3 BY PUBLIC PROSECUTOR SMT.S.HYMA - FOR R4 THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.L.P.No.518 of 2012** ## **---------------------------------------------Dated this the 25[th] day of September, 2012** ## **ORDER** The petitioner herein is the private complainant in S.T.Case No.1837 of 2005 of the court of the Judicial Magistrate of the First Class-I, Aluva and he seeks leave under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the judgment dated 08/04/2009 of the learned Magistrate in the above case, since the learned Magistrate acquitted the accused three in numbers, who faced prosecution for the offence punishable under Sections 323 and 447 read with Section 34 of the Indian Penal Code. 2. Though the above Crl.Leave Petition was filed as early as on 13/07/2009, the same coming up for admission only on 17/09/2012, on which date the same got adjourned and posted today. 3. The case of the petitioner is that a civil suit is pending in the Munsiff's court, North Paravur between Crl.L.P.No.518/2012 : 2 : the complainant and the accused. According to the complainant the above civil suit was instituted connected with the development that taken place in pursuance of the marriage between the son of the complainant and daughter of the first accused who were in love. Thus, according to the complainant, when the above suit was pending, at about 5.30 p.m. on 09/01/2005 the accused 3 in numbers attempted to demolish the front door of his house and on hearing the hue and cry, the complainant and his wife opened the door and at that time all the accused trespassed into their house. The first and the second accused were holding choppers in their hands. It is the further case of the complainant that the first accused caught hold of the loin cloth of the complainant without allowing to move and the third accused fisted him on his back twice. According to the complainant, the first accused uttered that he would finish the complainant and also uttered obscene words by showing chopper. According to the complainant when his wife interfered, the second accused uttered obscene words and Crl.L.P.No.518/2012 : 3 : threatened her. Thus the accused have committed the offences punishable under Sections 452, 341, 323 and 506 (II) read with Section 34 of the Indian Penal Code. 4. On recording the statements of the complainant and one of the witnesses of the complainant, the court took cognizance only for the offence punishable under Sections 323 and 447 read with Section 34 of the I.P.C. When the accused appeared, a formal charge was framed against them for the said offence and when the said charge was read over and explained to the accused, they denied the same and pleaded not guilty. Thereafter the complainant and three witnesses were examined as PWs.1 to 4. No document was produced. The accused were questioned under Section 313 of the Cr.P.C. and they denied all the incriminating circumstances that appeared in the prosecution evidence. After considering the entire materials and evidence the trial court came into a specific conclusion that the complainant had not established his case beyond reasonable doubt and consequently found that the accused are not guilty for the Crl.L.P.No.518/2012 : 4 : offence charged against them and accordingly they are acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for. 5. I have heard Sri.Rajeev.K.S., learned counsel for the petitioner and Sri.C.A.Chacko, learned counsel for the respondent. I have also gone through the judgment of the trial court. 6. Counsel for the petitioner vehemently submitted that the evidence of PWs.1 and 2 proves the entire incident and PW.1 has identified the accused and established the overt act of the accused. But the learned Magistrate acquitted the accused without any convincing reason. According to the learned counsel, besides PWs.1 and 2 respectively the injured and his wife, PWs.3 and 4 were also examined, who are independent witnesses and their evidence corroborated the evidence of PW.1. But the learned Magistrate did not consider the above aspect and came into an erroneous conclusion. Thus according to the learned counsel, in case an appeal is entertained, Crl.L.P.No.518/2012 : 5 : there is every possibility of interfering with the findings of the court below and the petitioner is entitled to get leave as prayed for. 7. On the other hand, the counsel for the respondent vehemently submitted that there is considerable delay in filing the complaint, which is not properly explained. It is pointed out by the learned counsel that, though the alleged incident was on 09/01/2005, the complaint was filed only on 17/01/2005. The learned counsel has also pointed out the discrepancies that occurred in the averment in the complaint and evidence of PW.1, regarding the identity of the accused who possessed the chopper at the time of the incident. It is also pointed out by the counsel that PW.2 wife of PW.1 has no case that the accused were holding choppers and PW.2 has also not identified the accused during the trial. It is also the case of the counsel for the respondent that no documentary or medical evidence was produced by the complainant to prove the incident in spite of the fact that PW.2 was deposed before the court Crl.L.P.No.518/2012 : 6 : that the complainant was hospitalised and treated as an inpatient for one week. Thus according to the learned counsel the trial court came into its conclusion after thorough scrutiny of the evidence and infirmities and contradictions that occurred in the complaint. Therefore no interference is warranted and the petition is liable to be dismissed, denying the leave. 8. I have carefully considered the contentions advanced by the learned counsel for the appellant and the respondent. 9. In the light of the rival contentions and the evidence and materials referred to in the judgment, the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the findings of the court below and order of acquittal recorded in favour of the accused. As rightly pointed out by the learned counsel for the respondent, though the incident took place at 5.30 p.m. on 09/01/2005, the present complaint was filed only on 17/01/2005. Though the learned counsel for the Crl.L.P.No.518/2012 : 7 : petitioner submitted before me, that PW.1-the complainant approached the police initially and as no action was taken, a complaint was filed before the very same court which sent to the police, consequently, Crime No.69 of 2005 was registered in the Aluva Police Station, no evidence or material are produced to substantiate those facts. In the absence of any such materials or evidence, according to me, the learned counsel for the respondent is correct in his submission that the complainant has not explained the delay. Therefore there is considerable delay in filing the present complaint and the said delay is not properly and convincingly explained. 10. From the evidence and materials referred to above and from the contention of the counsel for the petitioner and the respondent, it appears that, to prove the incident inside the house, the only evidence available is that of PW.1-the complainant and his wife. Of course, PWs.3 and 4 were also examined to prove the incident. As I indicated earlier, the evidence of PWs.1 and 2 is not consistent and to certain extent the same are Crl.L.P.No.518/2012 : 8 : contradicting each other. The wife of PW.1 has no case that the accused were holding choppers in their hands. PW.2 has also not identified the accused. In this juncture, it is relevant to note that, in the light of the case of PW.1, A1 is not stranger to PW.1, since as per the case of PW.1, A1 is the father-in-law of the son of the complainant. Till then, PW.2 failed to identify A1. It is also relevant to note that in the complaint, as pointed out by the counsel for respondents it was A2 and A3 who possessed the choppers. When PW.1 was examined, he says that it was A1 and A3. So the identity of the accused persons as to who possessed the choppers, the evidence of PW.1 is in contradiction and also against the averment in the complaint. Those contradictions and infirmities are relevant especially when PW.2 has no case that the accused were holding the choppers. 11. The learned counsel for the petitioner vehemently submitted that, to prove the identity of the accused, the evidence of one witness, even though he is the complainant, is sufficient. According to me the Crl.L.P.No.518/2012 : 9 : question of identification of accused is to be examined in the light of the facts and circumstances involved in the present case. It is born out from the records, which is beyond dispute about the relationship between PWs.1 and 2 with A1. It is also beyond dispute that the son of the complainant was in love with daughter of A1 and who entered into a marriage and thereafter there was some transaction between them. So according to me the accused are not strangers to PWs.1 and 2 and they were in loggerheads. Thus it can be safely concluded, especially in the light of the existing civil dispute that PWs.1 and 2 are enimical to A1. If that be so, naturally the court is in search of evidence for corroboration of evidence of PW.1. But in the present case absolutely there is no such corroborative evidence. It is also relevant to note that, though PW.2 claimed that consequent to the incident in the present case PW.1 was admitted in the hospital and treated as inpatient for one week, no document is produced in this behalf. Of course, according to PW.1 he was not hospitalised. In such a Crl.L.P.No.518/2012 : 10 : situation if PW.2 is correct, to prove the incident there was better evidence including hospital records. But PW.1 did not take any step to summon those documents and to examine relevant witnesses. If PW.1 has no case that he was hospitalized, the evidence of PW.1 cannot be believed since PW.2 on these aspects deposed against PW.1. The trial court after considering the evidence of PWs.3 and 4 found that PWs.3 and 4 cannot be believed and the learned Magistrate has assigned various reasons for the same which can be gathered from paragraph 9 of the judgment and according to me those reasons are well founded and acceptable. 12. Thus going by the judgment it can be seen that, after considering the entire evidence and materials on record and after assigning proper and sound reasons, the learned Magistrate came to his own finding and held that the complainant has not established the case beyond reasonable doubt. Under the above circumstances especially in the light of the evidence and materials referred to above by the learned Magistrate, in the Crl.L.P.No.518/2012 : 11 : judgment sought to be impugned, it cannot be said that the same is perverse. 13. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that, “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, in the light of the above dictum laid down by the Apex Court in the decision cited supra, I find that no scope for interference, even in case an appeal is entertained against the above finding and the order of acquittal and there is no substantial ground to interfere with the order of acquittal. Therefore, the petitioner has miserably failed to make out any Crl.L.P.No.518/2012 : 12 : exceptional or substantial reason to interfere with the finding of the court below and to show that the judgment sought to be impugned is perverse. In the result, I find no merit in this petition and accordingly, the same is dismissed. ## **V.K.MOHANAN, JUDGE** skj