Kerala High Court
Biju Balakrishnan vs State Of Kerala on 12 August, 2025
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Crl. Appeal No. 204/2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 12TH DAY OF AUGUST 2025 / 21ST SRAVANA, 1947
CRL.A NO. 204 OF 2014
CR. NO.723/2011 OF THODUPUZHA POLICE STATION, IDUKKI
AGAINST THE JUDGMENT DATED 07.02.2014 IN SC NO.48 OF 2012 OF III
ADDITIONAL SESSIONS JUDGE, THODUPUZHA
APPELLANTS/ACCUSED 2 & 1:
1 BIJU BALAKRISHNAN, AGED 33 YEARS,
S/O.BALAKRISHNAN, KANJIRAMPARAYIL (H), KANJIRAMPARA BHAGM,
MUTHALAKODAM KARA, THODUPUZHA VILLAGE.
2 RAMESH, AGED 35 YEARS, S/O.GOPI, THANNICKAL (H), KANJIRAMPARA
BHAGM, MUTHALAKODAM KARA, THODUPUZHA VILLAGE.
BY ADVS.
SRI.P.S.SREEDHARAN PILLAI
SRI.ARJUN SREEDHAR
SHRI.ARUN KRISHNA DHAN
SHRI.T.K.SANDEEP
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 31.
SMT. HASNAMOL N.S., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.08.2025, THE
COURT ON 12.08.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 204/2014
2025:KER:60492
JOHNSON JOHN, J.
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Crl. Appeal No. 204 of 2014
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Dated this the 12th day of August, 2025
JUDGMENT
The appellants are challenging their conviction and sentence for
the offences under Sections 324, 341 and 427 r/w 34 IPC in S.C. No. 48
of 2012 on the file of the Additional Sessions Judge, Thodupuzha as per
the judgment dated 07.02.2014.
2. As per the prosecution case, while PW1 and others were
standing near the water tank at Kanjirampara on 11.05.2011, at 10.30
p.m., the 1st accused who came there abused PW1 and his friends.
When PW1 questioned the 1st accused, he called the 2nd accused through
phone and after the arrival of the 2 nd accused there, the accused persons
in furtherance of their common intention, attacked PW1 and his
companions. The 2nd accused kicked down the motorcycle of PW1 and
when PW1 interfered the 1 st accused caught him and the 2 nd accused
stabbed PW1 with a knife on the left side of face and chest causing
serious injuries.
3. Even though, charge was framed for the offences under
Sections 308, 324, 341 and 427 r/w 34 IPC, the trial court found the
accused persons not guilty of the offence under Section 308 r/w 34 IPC.
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4. Heard both sides and perused the records.
5. The learned counsel for the appellant argued that PWs 1 and 2
are the only occurrence witnesses who supported the prosecution and
there is no proper dock identification of the accused persons by PWs 1
and 2. It is also argued that the recovery of MO1 knife as per Exhibit P3
seizure mahazar is not at all reliable and that the evidence of PW8,
doctor, and Exhibit P12, wound certificate, does not tally with the
injuries noted in Exhibit P13, discharge certificate of PW1 and therefore,
the appellants/accused are entitled for the benefit of reasonable doubt.
6. The learned Public Prosecutor argued that the evidence of PWs
1 and 2 before the court tallies with the evidence of PW8 doctor and
Exhibit P12, wound certificate, and therefore, there is no reason to
interfere with the findings in the impugned judgment.
7. According to PW1, on 11.05.2011, at about 10.30 p.m., while
he was talking to his friends near the water tank at Kanjirampara, the 1 st
accused came there and asked them to go away from there and he also
addressed them in obscene words. PW1 also deposed that the 1 st
accused called the 2nd accused and within 5 minutes, he reached there
in a motorbike and thereafter, the 2nd accused kicked down his
motorcycle. PW1 would say that when he objected, the 1 st accused
caught him from behind and then the 2 nd accused stabbed him with a
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knife on his face, left side of chest and left side of the abdomen. PW1
identified MO1 as the knife used by the accused for stabbing him.
8. However, it is pertinent to note that the prosecution has not
made any attempt for dock identification of the accused persons through
PW1. Regarding the occurrence, PW2 also deposed in the same manner
as PW1; but, there was no attempt on the part of the prosecution for
dock identification of the accused persons through PW2.
9. The learned counsel for the appellant also invited my attention
to Exhibit P1, First Information Statement recorded on 12.05.2011, to
point out that in Exhibit P11, PW1 has no case that the 2 nd accused
kicked down his motorcycle at the time of occurrence.
10. It cannot be disputed that the substantive evidence is the
identification of the accused persons in court by the witness and even if
the witness and the accused are persons known to each other, it is
obligatory for the witness to identify the accused in court by pointing out
that the person referred to by him in the evidence is the person who is
standing in the dock and it is obligatory for the court to record in the
deposition that the witness had identified the accused in the dock, as
held by this Court in Vayalali Girishan and Others v. State of Kerala
[2016 KHC 204] and Shaji @ Babu @ Japan Shaji v. State of Kerala
[2021 (5) KHC SN 27].
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11. In this case, the presiding Judge has omitted to do so while
recording the deposition of PWs 1 and 2. There was no attempt on the
part of the learned Public Prosecutor to put appropriate questions to PWs
1 and 2 for the said purpose. The trial court has not recorded in the
deposition of PWs 1 and 2 that the said witnesses had identified the 1 st
accused, Ramesh and the 2nd accused, Biju Balakrishnan, in the dock.
12. The learned counsel for the appellant argued that the alleged
recovery of MO1, knife, as per Exhibit P3, seizure mahazar, is highly
suspicious and there was no attempt on the part of the prosecution to
identify MO1, knife, through PW4 attesting witness to Exhibit P3
mahazar. The evidence of PW7, Investigating Officer, and Exhibit P8,
arrest memo, and Exhibit P10, inspection memo, shows that the 2 nd
accused, Biju Balakrishnan, surrendered in the Police Station on
14.07.2011 at 11.30 a.m. According to PW7, the 2 nd accused handed
over MO1 knife and he seized the same by preparing Exhibit P3
mahazar. In this connection, the learned counsel for the appellant
pointed out that as per Exhibit P8 arrest memo, the 2 nd accused was
arrested at 11.30 a.m. on 14.07.2011.
13. It is pointed out that a perusal of Exhibit P10, inspection
memo of the 2nd accused prepared by PW7 at 11.30 a.m. on 14.07.2011
would show that no weapon was recovered in the body search of the
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accused and it is clearly mentioned in column No. 7 of Exhibit P10 that
no valuables/weapons or other items were recovered in the body search.
But, in Exhibit P3, seizure mahazar said to be prepared at 11.40 a.m.,
on 14.07.2011, it is stated that the said mahazar was prepared when
the 2nd accused handed over the weapon. However, it is pertinent to
note that in Exhibit P3, it is not stated at which place the said mahazar is
prepared and at which place the accused handed over the weapon to the
Investigating Officer.
14. As noticed earlier, PW4 was examined to prove the recovery
of MO1 knife as per Exhibit P3, seizure mahazar. But, there was no
attempt on the part of the learned Public Prosecutor to identify MO1 as
the knife recovered as per Exhibit P3 mahazar while examining PW4. In
that circumstance, I find force in the argument of the learned counsel for
the appellant that recovery of MO1, knife, as per Exhibit P3, seizure
mahazar, cannot be relied upon. In this connection, the learned counsel
for the appellant also invited my attention to Exhibit P11, property list,
to show that the knife seized as per Exhibit P3 on 14.07.2011 was
produced before the Magistrate only on 21.07.2011 and there is no
satisfactory explanation for the delay.
15. The learned counsel for the appellant also argued that the
injuries noted in Exhibit P12, wound certificate, and the evidence of
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PW8, doctor, does not tally with the injuries in Exhibit P13, discharge
certificate of PW1. As per the evidence of PW8, doctor, and Exhibit P12,
wound certificate, PW1 has not sustained any stab injury on the chest.
The injuries and clinical features noted in Exhibit P12 are the following:
1. Smell of alcohol.
2. Incised looking wound 3x2x2 cm on the (L) side of upper lip.
3. Incised looking wound 6x3x2 cm on the (L) side of lower lip.
4. Abrasion on the (L) side of abdomen parallel to ambilium laterally extending
to the back.
5. Laceration 4x2x2 cm below (L) side of neck.
6. Drowsy.
16. A perusal of Exhibit P13, discharge certificate, shows that PW1
sustained stab wound anterior chest wall. Even though, Exhibit P13 was
marked subject to proof through, PW7, Investigating Officer, there was
no attempt on the part of the prosecution to prove the contents of
Exhibit P13 while examining PW8, doctor who issued the same.
17. In the light of the above findings, the appellants are entitled
for the benefit of reasonable doubt and the impugned judgment is liable
to be set aside.
In the result, the appeal is allowed. The conviction and sentence
imposed by the trial court against the appellants are set aside and they
are acquitted of the offences under Sections 324, 341 and 427 IPC. The
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bail bonds executed by the appellants/accused shall stand cancelled and
they are set at liberty forthwith.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
