Kerala High Court

Sreedharan vs State Of Kerala on 23 July, 2021

CRL.A NO. 621 OF 2006
                                1

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
   FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                      CRL.A NO. 621 OF 2006
   AGAINST THE ORDER/JUDGMENT IN CC 84/2004 OF JUDICIAL
    MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM, PALAKKAD
APPELLANT/COMPLAINANT &PW1:

         SREEDHARAN
         S/O RAMAN NAIR, VETTATH VEEDU, KUDALLUR AMSOM,
         KUMBIDI DESOM,, OTTAPALAM TALUK.

         BY ADV SRI.SANTHEEP ANKARATH



RESPONDENT/S:

    1    STATE OF KERALA
         REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF
         KERALA,, ERNAKULAM.

    2    GOPI, JEEP DRIVER, KERALA WATER
         AUTHORITY, P.H.SECTION NO. I, SHORANUR,, PALAKKAD
         DISTRICT.

    3    P.S.VIJAYAN, ASST. EXECUTIVE ENGINEER,
         KERALA WATER AUTHORITY, P.H.SUB DIVISION,,
         SHORANUR, PALAKKAD DISTRICT

         NOW WORKING AS SUPRENDING ENGINEER, O/OF THE
         SUPRENDING ENGINEER,, KERALA WATER AUTHORITY,
         P.H.CIRCLE, THRISSUR.

    4    T.S.MOHANAN ,ASST.ENGINEER
         KERALA WATER AUTHORITY, P.H.SECTION NO.I,,
         SHORANUR, PALAKKAD DISTRICT, NOW WORKING AS,
         ASSISTANT ENGINEER, KERALA WATER AUTHORITY,,
         P.H.SECTION, CHELAKKARA, THRISSUR DISTRICT.
 CRL.A NO. 621 OF 2006
                                 2

         BY ADVS.
         PUBLIC PROSECUTOR
         SRI.P.SANTHOSH PODUVAL
         SRI.P.VIJAYA BHANU



OTHER PRESENT:

         SRI. M.S. BREEZ (SR.P.P)




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.07.2021,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 CRL.A NO. 621 OF 2006
                                          3

                                 K.BABU J.
                  ----------------------------------------------
                    Crl. Appeal No.621 of 2006
                 -----------------------------------------------
               Dated this the 23rd day of July, 2021

                               JUDGMENT

This appeal is filed against the judgment dated 01.12.2005,

acquitting respondents 2 to 4 (accused numbers 1 to 3 in the trial

court) of the offences punishable under sections 447, 341, 323, 324

read with 34 IPC, in CC No.84/2004 passed by the Judicial First Class

Magistrate Court, Ottappalam. The appellant is the complainant in the

court below and respondents 2 to 4 are the accused 1 to 3.

2. The brief facts of the case are narrated below:

3. The complainant was employed as Pump Operator at the

Pump House, Shornur. A1 is a jeep driver employed in the Kerala

Water Authority. A2 and A3 are Assistant Executive Engineer and

Assistant Engineer respectively of the Kerala Water Authority PH

Section I, Shornur. On 09.03.1998, while the complainant was on duty

at the Pump House, A2 and A3 came to the Pump House, opened the

door, entered inside and asked for the log book. After verifying the log

book, A2 and A3 asked the complainant why pumping was not done

on the previous day. The complainant replied that since there was no

light in the Pump House, pumping could not be done. Then there

occurred an altercation between the complainant and A2 and A3. At

that time A1 rushed to the scene and fisted at his face and voluntarily CRL.A NO. 621 OF 2006

caused injury on his left eye. A1 again fisted on his forehead. The

complainant made an attempt to escape from the scene but A1

restrained him. A2 and A3 caught hold on his hand and restrained

him. Thereafter A1 beat on his head using the lid of a drum kept in

the Pump House. The complainant sustained bleeding injuries.

4. The Shornur Police registered FIR No.62/1998 against A1 on

the basis of the complaint lodged by the complainant. Since the Police

omitted to implead A2 and A3, the complainant instituted a private

complaint before the court below.

5. The learned Magistrate took cognizance of the offences

alleged. A1 to A3 appeared before the court below on service of

summons. Charges were framed against them for offences under

sections 341, 323 and 324 read with 34 IPC. They pleaded not guilty

to the charges. The learned Magistrate proceeded with trial of the

case. Prosecution examined PWs 1 to 4 and proved Exts.P1 to P3 and

MO1. From the side of the defence Exts.D1 to D3 were marked. After

completion of the trial, the learned Magistrate, in view of the

contradictions and discrepancies in the deposition of the witnesses,

held that the prosecution failed to prove the case against the accused

beyond reasonable doubt. The learned Magistrate, therefore, held

that the accused were entitled to benefit of doubt and accordingly

they were acquitted.

6. The said judgment of acquittal is impugned in this appeal. CRL.A NO. 621 OF 2006

7. The learned counsel for the complainant submitted that the

oral evidence of PWs 1 and 3 corroborated by Ext.P1 is sufficient to

establish the case against the accused.

8. The learned counsel for A1 to A3, per contra, contended that

in view of the contradictions and discrepancies in the deposition of

PWs 1 and 3 it could be concluded that the prosecution failed to

establish the case against the accused beyond reasonable doubt.

9. The only point that arises for consideration is whether the

judgment of acquittal passed by the court below warrants

interference or not.

The point

10. The case of the complainant is that on 09.03.1998 at about

1'o clock in the night while he was on duty at the Pump House at

Shornur A2 and A3 entered into the Pump House and asked for the

log book maintained by him and questioned him as to why pumping

was not done on the previous day for which he replied that since

there was no light in the Pump House, he could not do pumping.

According to the prosecution, an altercation occurred there between

himself and A2 and A3 and at that time A1 rushed to the scene and

fisted on his face in which he sustained injury. The further case of the

prosecution is that A1 to A3 voluntarily caused hurt to him in

furtherance of their common intention.

11. In support of the prosecution case the complainant himself CRL.A NO. 621 OF 2006

gave evidence as PW1. He had given evidence in tune with the

complaint. The copy of the accident register cum wound certificate

was marked as Ext.P1. The lid of the drum, the weapon allegedly used

by A1, was marked as MO1. PW3, a witness examined from the side

of the prosecution, also supported the version of the complainant.

12. The case of the accused is that they have been falsely

implicated due to enmity resulted from the fact that as part of their

official discharge of duties they inspected the Pump House on the

basis of a complaint that no pumping was done on the previous day

and they had made an endorsement in the log book asking the

complainant to furnish explanation as to why pumping was not done.

13. The case of the complainant was resisted by the accused

mainly relying on Ext.D1, the FIS given by the complainant himself to

the Police and Ext.D2, the complaint lodged by the complainant to the

Executive Engineer on 10.03.1998 wherein the names of A2 and A3

were absent.

14. The learned Magistrate relied on the following

circumstances to record a finding that the prosecution has not

proved the case against the accused beyond reasonable doubt.

a) In Ext.D1 FIS lodged before the Police by the complainant and in

Ext.D2 the complaint dated 10.03.1998 submitted by the

complainant before the Executive Engineer, Kerala Water

Authority, Shornur, A2 and A3 were not implicated. No allegations CRL.A NO. 621 OF 2006

were made against A2 and A3 in Exts.D1 and D2.

b) Though PW1 had given evidence that initially he had gone to the

Government Hospital at Shornur, no material had been produced

before the court below to establish that he had obtained treatment

at the Hospital. And he was treated at Divine Hospital,

Wadakkanherry.

c) The credibility of PW3, an independent witness examined to prove

the incident proper, is doubtful.

d) The case of the defense is more probable in view of the admission

of the complainant to the effect that on the relevant day an

endorsement was made by A2 in the log book maintained by him

seeking him to show cause why pumping was not effected on the

previous day.

15. I have gone through the oral evidence of PWs 1 to 4 and the

documents produced from both sides.

16. Ext.D2, the complaint lodged by the complainant before the

Executive Engineer, Kerala Water Authority, Shornur is the earliest

statement of the complainant regarding the incident wherein there

was no mention of any overtact allegedly committed by A2 and A3.

Ext.D1, the FIS lodged by the complainant before the Shornur Police

also, is silent regarding any of the overtact allegedly committed by A2

and A3. The explanation given by PW1 is that he could not read the

contents of Exts.D1 and D2 as he had a vision defect consequent to CRL.A NO. 621 OF 2006

the injuries sustained by him in the incident. According to PW1, in

Ext.D1 the Police deliberately omitted the names of accused Nos.2

and 3 even though he had mentioned their names and the overtact

committed by them. I am unable to accept this as a credible

explanation especially in view of the fact that Ext.D2 being the very

earliest statement given by the complainant before the Executive

Engineer also lacked any of the overtacts allegedly committed by A2

and A3. The learned Magistrate has given much reliance to these

discrepancies in the version of the complainant while recording a

finding that the prosecution failed to establish the offences against

the accused beyond reasonable doubt.

17. The complainant had given evidence that immediately after

the incident he had gone to the Government Hospital, Shornur where

he was advised to seek expert management in Ophthalmology as he

had severe injuries on his left eye. It is pertinent to note that no

evidence has been adduced to show that he had gone to the

Government Hospital, Shornur and more over Ext.P1 would show that

the complainant obtained medical treatment at Divine Hospital,

Wadakkancherry where service of one Doctor, having MBBS alone

was available. The resultant conclusion is that the version of the

complainant regarding the averment that he had initially obtained

treatment at Government Hospital, Shornur is not acceptable.

18. PW3 is an independent witness examined to prove the CRL.A NO. 621 OF 2006

incident proper. The incident occurred in the midnight. He has given

evidence that he could witness the incident with the aid of the tube

light inside the Pump House. The evidence of PW1 would show that

on 08.03.1998 pumping was not effected as there was no light and

unavailability of light was brought to the notice of the superiors. In

view of this inconsistency the credibility of PW3 is doubtful.

19. PW1 specifically admitted in his evidence that on the

relevant day at about 8PM when he came for duty he found that the

log book had an endorsement made by A2 seeking his explanation as

to why pumping was not done on the previous day.

20. The learned Magistrate on appreciation of all the facts and

circumstances of the case entered into a conclusion that the defense

version is more probable and found that the accused were entitled to

benefit of doubt.

21. The learned counsel for the accused contended that the

accused having been acquitted by the trial court are entitled to the

presumption of innocence and further that the accused having

secured their acquittal the presumption of their innocence is further

re-affirmed and strengthened by the trial court. The learned counsel

for the accused further submitted that 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.

22. The apex court in Chandrappa and others vs. State of CRL.A NO. 621 OF 2006

Karnataka [(2007) 4 SCC 415] following various authorities on the

subject deduced the general principles, regarding the powers of

appellate court while dealing with an appeal against an order of

acquittal, as follows:

(1) An appellate court has full power to review, re-appreciate 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 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.

23. For acquitting the accused and extending the benefit of

doubt, the trial court observed that oral evidence of PW1, the CRL.A NO. 621 OF 2006

complainant, lacks credibility due to discrepancies and

inconsistencies in his version. The learned Magistrate indicated that

the possibility of false implication cannot be ruled out in view of the

admission of the complainant that accused Nos.2 and 3 on the

relevant day had made an endorsement in the log book maintained by

him seeking explanation from him as to why pumping was not

effected on the previous day. The learned Magistrate applied sound

reasons to disbelieve the version of PW3, the only eye witness in the

incident.

24. In my view, if in the light of the above circumstances, the