Kerala High Court
Biju vs P.K. Ayyappan on 19 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.1026/2012
1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.REV.PET NO. 1026 OF 2012
AGAINST THE JUDGMENT DATED 16.03.2012 IN Crl.A
NO.371 OF 2010 OF ADDITIONAL DISTRICT AND SESSIONS COURT
(ADHOC-III),NORTH PARAVUR ARISING OUT OF THE JUDGMENT
DATED 16.6.2010 IN CC NO.1160 OF 2005 OF JUDICIAL
MAGISTRATE OF FIRST CLASS I ,PERUMBAVOOR
REVISION PETITIONER/APPELLANT/ACCUSED NO.1:
BIJU, S/O. VAREETH, ACHANDI VEEDU, BLOCK NO.14,
F.DIVISION, KALADY PLANTATION, KALLALA KARA,
AYYAMPUZHA VILLAGE. PIN-682026.
BY ADVS. SRI.P.VIJAYA BHANU (SR.)
SRI.V.C.SARATH
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 P.K. AYYAPPAN, S/O. KANNAN, PADATHY HOUSE, BLOCK
NO.14, F. DIVISION, KALADY PLANTATION, KALLALA
KARA, AYYAMPUZHA VILLAGE.
2 STATE OF KERALA, REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
BY ADVS. SRI.ANANDAN PILLAI
SRI.P.A.CHANDRAN
SRI.E.C.BINEESH-SR.PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 19.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.1026/2012
2
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"CR"
ORDER
The revision petitioner, who was the 1 st accused in
C.C.No.1160 of 2005 on the files of the Judicial First Class
Magistrate Court, Perumbavoor (for short, 'the trial court'),
challenges his conviction and sentence under Sections 323,324
and 326 of the IPC.
2. The above calendar case arose from a private
complaint preferred by the 1st respondent herein before the trial
court against the petitioner and four others. The incident
pertaining to the private complaint took place on 4.2.1988 at
6.30 p.m. in front of the courtyard of the building where the
complainant and the accused were residing. Initially the
Ayyampuzha police registered crime in respect of the said
incident against five persons including the petitioner herein
alleging offences punishable under Sections 323, 324, 326 and
307 read with Section 34 I.P.C. After investigation, final report
was filed against three persons, the petitioner herein and two
others for the offences under Sections 323, 324, 326 and 307
read with Section 34 I.P.C. Later on the trial court took
cognizance of the offences under Sections 323, 324 and 326
read with Section 34 I.P.C and numbered the case as C.C.No.
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1161/05.
3. The 1st respondent also preferred a private complaint in
respect of the very same incident before the trial court against
the petitioners and four others against whom the police initially
registered the FIR alleging the offences punishable under
Sections 323, 324, 326 and 307 read with Section 34 I.P.C. The
allegations in the private complaint against the petitioner/1 st
accused and the remaining four accused are as follows:
The complainant is residing with his family,
consisting of his wife and four children in the labour
line F division, 4th block, Kallala estate. The line
building has eight rooms. The complainant is
occupying the room at the extreme north. The
accused and the members of his family are residing in
the extreme south room. The intervening rooms are
lying vacant. For access to the room which the
complainant has occupied, he has to pass through the
front side of the room in which the accused are
residing. On 4.2.1988 at 6.30 p.m., while the
complainant was passing through the front courtyard
of the building, the accused 1 to 3 suddenly came
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from behind the 4th room, which they were occupying
and saying that he would not be spared, the first
accused struck him with a stick on the front side of his
head. The accused 2 and 3, in the meantime, kicked
repeatedly, causing him to fall. While he was trying to
get up, the 2nd accused got the stick from the 1 st
accused and struck him again on his head. He
screamed aloud, hearing which his wife rushed to his
rescue, which enraged the 2nd accused, and he struck
her repeatedly on her right hand, causing a bone
fracture and also kicked her in different parts of her
body. The other accused also fisted and kicked him.
The 4th accused caught hold of her hair and kicked
her. Hearing the cry of the complainant and his wife,
those who were working nearby rushed to the spot,
seeing which the accused left the place.
4. After recording the sworn statement of the
complainant and the witnesses, the trial court took cognizance
of the aforesaid offences against the accused Nos. 1 to 5, and
the case was taken to file as C.P. No. 3/2003. Since the offence
punishable under Section 307 I.P.C was triable exclusively by
the Court of Sessions, the case was committed to the Court of
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Sessions, Ernakulam in compliance with all legal requirements
where the case was taken as S.C. No. 384/2003 and was later
made over to the Additional Sessions Court (Ad hoc-II),
Ernakulam for trial.
5. The accused entered appearance pursuant to the
summons issued from that Court. After hearing both sides and
perusing the final report and the connected records, the learned
Sessions Judge found that there was no reason to presume that
the accused had committed the offence punishable under
Section 307 I.P.C. The case was then transferred to the learned
Chief Judicial Magistrate, Ernakulam, as provided under Section
228(1)(a) Cr.P.C., from where it was made over to the trial
court. The trial court took the case on file as C.C.
No.1160/2005 under Sections 323, 324 and 326 read with
Section 34 I.P.C.
6. On the appearance of the accused, the trial court
recorded the evidence of the complainant as provided under
Section 244 Cr.P.C., after complying with the requirements
under Section 207 Cr.P.C. During that stage, PW1 to PW3 were
examined in chief; their cross-examination was deferred. After
going through the evidence adduced as above, the trial court
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framed charge for the offences under Sections 323, 324 and
326 read with Section 34 of I.P.C., as provided under Section
246(1) Cr.P.C. The charge was read over and explained to
them. They pleaded not guilty.
7. On the request of the defence. PW1 to PW3 were
recalled and cross-examined, and then PW4 and PW5 were
examined, and Exhibits P1 to P8 were marked. When evidence
for the complainant was over, the accused were examined
under Section 313 (1)(b) Cr. P.C. They denied all the
circumstances that appeared in evidence against them. No
defence evidence was adduced.
8. After evaluation of the oral and documentary
evidence as above, the trial court found the 1 st accused guilty
of the offences punishable under Sections 323, 324 and 326 of
I.P.C., and convicted him thereunder. He was sentenced to
undergo simple imprisonment for three months and to pay a
fine of Rs.10,000/-, in default to suffer simple imprisonment for
two months for the offence punishable under Section 326 IPC.
No separate sentence was awarded for the other offences. The
accused 2 to 5 were found not guilty of all the offences charged
against them, and they were acquitted of the said offences as
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provided under Section 248(1) Cr. P.C. The petitioner herein
preferred an appeal as Crl. Appeal No. 371/2010 at the Court of
the Additional District and Sessions Judge (Adhoc III), North
Paravur (for short, the appellate court), which confirmed the
judgment of the trial court vide judgment dated 16.03.2012.
Being aggrieved by the findings of conviction and sentence as
above, the 1st accused has filed this revision.
9. I have heard Smt.Nanditha S., the learned
counsel for the revision petitioner, Sri.Anandan Pillai, the
learned counsel for the 1st respondent and Sri.E.C.Bineesh, the
learned Senior Public Prosecutor.
10. The learned counsel appearing for the
petitioner impeached the finding of the trial court as well as the
appellate court on appreciation of evidence and resultant
finding as to the guilt. The learned counsel submitted that there
was a total violation of Section 210 of Cr.P.C., inasmuch as the
trial court failed to club the police case as well as the complaint
case, both arising out of same incident, and try them together
as contemplated under sub section (2) of Section 210 of Cr.P.C.
According to the counsel, non-compliance of the said provision
has caused prejudice to the petitioner. The learned counsel
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further submitted that the conviction was based solely on the
interested testimony of PW1, that too, contradictory in nature,
even according to the findings of the trial court. The learned
counsel further submitted that non recovery of the material
objects used for the commission of offence is fatal to the case
considering the facts and circumstances involved. The learned
counsel also stated that there was an undue delay of 383 days
in filing the private complaint, which has not been satisfactorily
explained. On the other hand, the learned counsel for the 1 st
respondent as well as the learned Public Prosecutor supported
the findings and verdict handed down by the trial court and the
appellate court and argued that necessary ingredients of
Section 326 of IPC had been established and the prosecution
has succeeded in proving the case beyond reasonable doubt. It
was further submitted that re-appreciation of evidence is
impermissible.
11. I will first deal with the challenge on the
ground of non compliance with Section 210 of Cr.P.C. Section
210 of the Cr.P.C (Section 233 of BNSS) outlines the procedure
to be followed when there is a complaint case and a police
investigation in respect of the same offence. This procedure
ensures that both processes do not run in parallel, avoiding
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duplication and potential conflicting decisions. It also obviates
anomalies which might arise from taking cognizance of the
same offence more than once. The Section reads thus:
"210. Procedure to be followed when there is a
complaint case and police investigation in
respect of the same offence.
(1) When in a case instituted otherwise than on a
police report (hereinafter referred to as a complaint case), it
is made to appear to the Magistrate, during the course of the
inquiry or trial held by him, that an investigation by the
police is in progress in relation to the offence which is the
subject-matter of the inquiry or trial held by him, the
Magistrate shall stay the proceedings of such enquiry or trial
and call for a report on the matter from the police officer
conducting the investigation.
(2) If a report is made by the investigating police
officer under section 173 and on such report cognizance of
any offence is taken by the Magistrate against any person
who is an accused in the complaint case, the Magistrate
shall inquire into or try together the complaint case and the
case arising out of the police report as if both the cases
were instituted on a police report.
(3)If the police report does not relate to any accused in the
complaint case or if the Magistrate does not take cognizance
of any offence on the police report, he shall proceed with the
inquiry or trial, which was stayed by him, in accordance with
the provisions of this Code.
12. As per the provisions extracted above, when
in a case instituted otherwise than on a police report, i.e in a
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complaint case, during the inquiry or trial held by the
Magistrate, it appears to the Magistrate that the investigation
by the police is in progress concerning the offence which is the
subject-matter of the inquiry or trial held by him, the
Magistrate shall stay the proceedings of such inquiry or trial and
call for a report on the matter from the police officer conducting
the investigation. It further provides that, if a report is made
by the investigating police officer under Section 173 of Cr.P.C
(Section 193 of BNSS) and on such report cognizance of any
offence is taken by the Magistrate against "any person who is
an accused in the complaint case", the Magistrate shall inquire
into or try together the complaint case and the case arising out
of the police report as if both the cases were instituted on a
police report. It also provides that if the police report does not
relate to "any accused" in the complaint case or if the
Magistrate does not take cognizance of "any offence" on the
police report, he shall proceed with the inquiry or trial which
was stayed by him, following the provisions of this
Cr.P.C/BNSS. Thus, it is incumbent upon the Magistrate under
Section 210(2) of Cr.P.C (Section 233(2) of BNSS) to try
together the complaint case and the case arising out of the
police report as if both the cases were instituted on a police
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report if a report is made by the investigating police officer
under Section 173 of Cr.P.C (Section 193 of BNSS) and on such
report cognizance of any offence is taken by the Magistrate
against any person who is an accused in the complaint case. To
be more precise, if a police report has been submitted and a
complaint has been filed in respect of the same offence, then,
under sub-section (2) of Section 210 of the Cr.P.C., (Section
233 (2) of BNSS) the Magistrate is under an obligation to try
both cases together. It is settled that, though the expression
used in sub-section (1) of Section 210 of Cr.P.C (Section 233
(1) of BNSS) is "offence", the same has to be understood as the
occurrence or transaction in which the offence has been
committed and not the very same offence. (See. Joseph
Freeman Motha (Dr.) & Another v. Sudha Vijayan &
Another, 2020 (5) KHC 169).
13. Coming to the facts of the case, it is not in
dispute that in respect of the very same incident/occurrence in
the complaint case (which is the subject-matter of this revision
petition), the police registered a case as Crime No.8/1998 and
it was tried by the very same trial court as C.C.No.1161/2005.
There were three accused in the said case, and all of them were
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acquitted after trial. In the complaint case, there are two more
accused, accused Nos. 2 and 5. In fact, in the initial crime
registered by the police, all five accused were there. Section
307 of IPC was also incorporated. However, when the final
report was filed, accused Nos. 2 and 5 in the complaint case
were deleted from the party array and Section 307 of the IPC
was omitted. Thus, the incident, the offences and the three
accused in both cases are the same.
14. The learned counsel for the 1 st respondent submitted
that since two or more accused are involved in the complaint
case, the provisions of Section 210 of Cr.P.C (Section 233 of
BNSS) are not attracted. I cannot subscribe to the said
argument. One of the ingredients of sub-section (1) of Section
210 of Cr. P.C (Section 233 (1) of BNSS) is that
incident/occurrence inquired into or tried by the Magistrate in
the complaint case should also be under police investigation.
Here, the incident in both cases is one and the same. The
offences involved in both cases are under Sections 324 and
326, read with Section 34 of the IPC. Once the criteria laid
down in sub-section (1) of Section 210 of Cr.P.C (Section 233
(1) of BNSS) is satisfied, then if the Magistrate takes
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cognizance of "any offence" against "any person who is accused
in the complaint case", based on the police report, it is the duty
of the Magistrate under sub-section (2) to try the two cases
together as if they were instituted on a police report. This
would be satisfied even if cognizance of the offence is taken
against only one of the persons accused in the complaint case.
If both ingredients are satisfied, the procedure to be followed is
as if both cases were instituted on a police report. In short, for
clubbing the two cases for trial it is enough that congnizance is
taken by the Magistrate of any offence against any accused in
the complaint case in the report of the police who investigated
the occurrence which led to the complaint case. It is not
necessary that all the offences and all the accused in the
complaint case and the police case should be the same. The
ingredients of sub-section (3) are couched in the negative. The
expression "the police report does not relate to any accused in
the complaint case' used in sub-section (3) means that none of
the accused in the complaint case is the subject-matter of the
police report. Similarly, the expression "does not take
cognizance of any offence on the police report" means that
cognizance of no offence is taken. It is only when the
conditions laid down in sub-section (3) are satisfied that the
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two cases have to be tried according to the separate procedure
laid down for each of them. Sub-section (3) also shows that as
long as the police report relates to one of the accused
mentioned in the complaint case and the Magistrate takes
cognizance of an offence based on the police report, the case
will fall under sub-section (2) and the procedure mentioned
therein will have to be strictly followed.
15. Here, the offences involved in the complaint case and
the police case are under Sections 324 and 326, read with
Section 34 of the IPC. The incident in both cases is also one and
the same. All three accused in the police case are also accused
in the complaint case. Hence, Section 210 of Cr. P.C (Section
233 of BNSS) is squarely attracted, and the trial court ought to
have tried the two cases together as if they were instituted on a
police report as contemplated under sub-section (2). The
provisions of Section 210 of Cr.P.C (Section 233 of BNSS) are
mandatory. But the non compliance thereof would not ipso
facto vitiate the conviction in view of the provisions of Section
465 of Cr.P.C (Section 511 of BNSS). However, if the non
compliance with the provisions of Section 210 of Cr.P.C (Section
233 of BNSS) has caused prejudice to the accused and a failure
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of justice has been occasioned thereby, the entire trial and
conviction would be vitiated [see Dilawar Singh v. State of
Delhi, (2008) 3 Supreme Court Cases (Cri) 330]. Taking into
account the entire facts and circumstances of the case, it
appears to me that serious prejudice has been caused to the
petitioner, resulting in failure of justice on account of the failure
on the part of the trial court to follow the procedure laid down
in sub-section (2) of Section 210 of Cr.P.C (Section 233 (2) of
BNSS)
16. To prove the incident and fix the culpability on
the accused, the prosecution examined PW1 to PW5. PW1 is
the defacto complainant/injured. PW2 is the wife of PW1 and
another injured. PW3 is an independent occurrence witness.
PW4 and PW5 are the doctors who examined PW1 and PW2. It
has come out in evidence that all the accused and PW1 and
PW2 are neighbours. The incident took place in front of the
house of the accused persons. The overt act alleged, as per the
testimony of PW1, is that the petitioner beat on his head with a
wooden stick, attacked PW2 on her right hand, the accused
No.3 stamped on her chest and the accused No.4 hit on the
body of PW1 with a stone. PW2 deposed that on hearing the
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cry of PW1, she came to the scene of the occurrence, and then
the accused attacked her. It has come out in evidence that
PW1 and PW2 have sustained injuries. It is evident from the
evidence of PW4 and PW5 and Exts.P3 and P4. PW3, an
independent witness, deposed that he reached the spot after
ten minutes of the incident.
17. The trial court in the impugned judgment found that
there was no chance for PW3 to witness the incident and
therefore, his testimony was disbelieved. So far as the
evidence of PW1 and PW2 was concerned, the trial court found
that their testimony could not be believed in toto. There is a
specific finding in paragraph 11 of the judgment that the
sequence of the events narrated by PW1 and PW2 varies. In
paragraph 12, there is a finding that there are material
contradictions in the testimony of PW1, PW2 and PW3. The
specific overt act alleged by PW1 that accused Nos. 2, 3 and 4
assaulted him on various parts of his body was also disbelieved
by the trial court. However, the trial court found that there was
no contradiction in the evidence of PW1 and PW2 regarding the
fact that the 1st accused/petitioner struck PW1 on the right side
of PW1's head. While arriving at such a finding, it was
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observed that apart from this, the other facts deposed by PW1
and PW2 were considerably varying. Based on this finding
alone, the trial court convicted the petitioner. The relevant
portion of the said finding is reproduced for clarity: "So only
consistent version coming from PW1 and PW2 is that A1 beat
on the right side of the head of PW1. Regarding the other
facts, there is considerable contradiction which cuts very root of
the allegations against A2 to A5."
18. It is settled that a witness's evidence should be
considered as a whole, not in isolated parts. When evaluating a
witness's testimony, the court should look for the general tenor
of the evidence and whether it appears truthful when
considered as a whole. In other words, the court should assess
the entire testimony of a witness, considering its overall
consistency and coherence, rather than focusing on isolated
statements. This approach helps in determining the witnesses'
credibility and overall truthfulness of his/her account. What the
trial court did was it relied on the isolated statement of PW1
and PW2 that the 1st accused hit on the head of PW1 with a
weapon, totally discarding the remaining part of their
testimony, which are mutually contradictory. Admittedly, there
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existed long-standing feud between the petitioner and PW1 and
PW2.
19. As already stated, initially, the police registered a
case and counter case in respect of the same incident. The
case registered by the police against the petitioner and others
was tried by the trial court as C.C.No.1161/2005. The counter
case was registered against PW1 and PW2, which was also tried
by the trial court as C.C.No.1159/2005. Both cases ended in
acquittal. The learned counsel for the petitioner made available
a copy of the judgment in C.C.No.1161/2005. It shows that
after a full-fledged trial, the accused therein, who are accused
Nos.1, 3 and 4 in the complaint case, were acquitted. The
incident and offences involved in the police case and the
complaint case are the same. PW1 and PW2 in the police case
are PW1 and PW2 in the complaint case. The evidence tendered
by PW1 and PW2 in the police case was disbelieved. There is a
specific finding in the judgment in C.C.No.1161/2005 that,
going through the allegations and evidence adduced, there is
considerable contradictions in the testimony of the witnesses
and prosecution case. PW1 and PW2 gave contradictory
versions in the trial in the police case and in the complaint case.
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For all these reasons, I hold that PW1 and PW2 are not
trustworthy, and their evidence that the petitioner struck on the
head of PW1 could not have been relied on by the trial court to
convict him.
20. There is yet another aspect. The weapon used
for the commission of the offence has not been recovered.
Indeed, mere non-recovery of the weapon used for the
commission of the offence does not affect the case of the
prosecution where clinching and direct evidence is available.
However non-recovery of a weapon can be fatal to the
prosecution case if the eyewitnesses examined by the
prosecution were found to be not reliable or trustworthy.
21. It is true that the power of this Court in
revision is severely restricted, and it cannot embark upon
reappreciation of evidence. This Court is not supposed to
reappreciate the evidence in revision. But this is not a case of
reappreciation of evidence. This is a case where the trial court
as well as the appellate court misread the evidence and totally
failed to appreciate the evidence in the correct perspective.
The powers vested with this Court under Section 397 read with
Section 401 of Cr.P.C (Sections 438 and 442 of the BNSS) are
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inherent in nature to correct the judgments of the trial court as
well as the appellate court if it suffers from gross illegality. The
findings in the judgment of the trial court as well as the
appellate court, have been arrived at by ignoring the relevant
materials and evidence on record. The entire approach of both
the courts in dealing with the evidence and law on the point is
patently wrong. Hence, I hold that this is a fit case where the
powers vested with this Court under Section 397 read with
Section 401 of Cr.P.C (Sections 438 and 442 of the BNSS).
could be exercised.
In the result, this Crl.R.P is allowed. The judgments of
conviction and sentence impugned are hereby set aside. The
petitioner/1st accused is found not guilty of the offences
charged against him and he is acquitted.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
AS/kp
