Dismissed

Alikoya v. Nayadikuzhi Kunhahammed

Kerala HC6 Mar 2013Crl.L.P./611/2012

Case brief

AI extract

What is this about?

The High Court at Ernakulam dismissed a Criminal Leave Petition filed by a de facto complainant seeking leave to appeal against an order of acquittal. The Court held that the petitioner failed to demonstrate exceptional circumstances or perversity in the appellate court's judgment, adhering to the presumption of innocence.

What did the court decide?

The application for leave to appeal and the special leave were declined; the petition was dismissed.

Alikoya Vs Nayadikuzhi Kunhahammed — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934

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Crl.L.P..No. 611 of 2012

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AGAINST THE ORDER/JUDGMENT IN CRA.360/2010 of ADDL.SESSIONS COURT (ADHOC)-II, MANJERI DATED 23-02-2012

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AGAINST THE ORDER/JUDGMENT IN CC.469/2004 of J.M.F.C.,MALAPPURAM DATED 27-10-2010

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APPELLANT/DE FACTO COMPLAILNANT:

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ALIKOYA, AGED 37 YEARS,

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S/O. KUNHAHAMMED, KARUMARAKKAD AMSOM, AKKODE DESOM, AKKODE.P.O, ERNAD TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.P.ANOOP (MULAVANA)

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RESPONDENTS/ACCUSED AND STATE:

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NAYADIKUZHI KUNHAHAMMED, AGED 31 YEARS, S/O. MUHAMMED, NAYADIKUZHI HOUSE, OLAVATTUR AMSOM, AROOR DESOM.

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BEERAN KUTTY, AGED 30 YEARS, S/O. ALI KUTTY, THATTARAM CHOLAYIL, PULIKKAL AMSOM, DESOM.

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NAYADIKUZHI MUHAMMED, AGED 62 YEARS, S/O. KUNHAHAMMED, NAYADIKUZHI HOUSE, OLAVATTUR AMSOM, AROOR DESOM.

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

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R1 BY PUBLIC PROSECUTOR SRI.N.SURESH R1-R3 BY ADV. SRI.V.T.RAGHUNATH R1-R3 BY ADV. SMT.C.V.RAJALAKSHMI R1-R3 BY ADV. SRI.P.M.MOHAMMED SHAREEF

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 06-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.L.P.No.611 of 2012

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Dated this the 06^th day of March, 2013

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ORDER

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The petitioner herein, who is the de facto complainant and examined as PW.1 in C.C.No.469 of 2004 of the court of the Judicial First Class Magistrate, Malappuram, is aggrieved by the judgment dated 23/02/2012 in Crl.A.No.360 of 2010 of the court of the Sessions Judge, Manjeri Division (Ad hoc-II, Manjeri), since the appellate court acquitted all the three accused, who faced prosecution for the offence punishable under Sections 341, 324 and 326 read with Section 34 of I.P.C., though the trial court sentenced them for all the above offences, and hence he seeks leave of this Court to file an appeal against the above judgment of the appellate court acquitting the accused.

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The case of the prosecution is that, on 25/01/2004 at about 7 p.m. the accused 2 and 3 in furtherance of their common intention wrongfully

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restrained the petitioner, who is the de facto complainant and the first accused struck him on his parietal region with a sword, on account of which he sustained injury. It is the further allegation that the second accused attacked him with a knife and the 3^rd accused hit on the nose of the de facto complainant with a stone and as a result of which the de facto complainant sustained nasal fracture. Thus, according to the prosecution, the accused has committed the offence punishable under Sections 341, 324 and 326 read with Section 34 of I.P.C. On the above allegation, Crime No.20 of 2004 was registered in the Vazhakkad Police Station for the said offences and on completing the investigation, a report was filed in the trial court based upon which C.C.No.469 of 2004 was instituted. During the trial of the case, PWs.1 to 10 were examined and Exts.P1 to P7 were marked from the side of the prosecution. Though no document is produced from the side of the defence, DW.1 was examined. MOs.1 to 3 were also produced and marked as material object. The

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trial court finally found that the prosecution has succeeded in proving its allegation against the accused beyond reasonable doubt. On such finding, the accused are convicted for the offence under Sections 341, 324 and 326 of I.P.C. and on such conviction all the accused are sentenced for the offence under Section 341 of I.P.C. to undergo rigorous imprisonment for one month each. For the offence under Section 324 of I.P.C. all the accused are sentenced to undergo rigorous imprisonment for six months each and for 326 of I.P.C. each of them are sentenced to undergo rigorous imprisonment for one year and also sentenced to pay fine of `5,000/- each and in default of payment of fine, each of them is directed to undergo imprisonment for a period of one month. The substantial sentences are ordered to run concurrently and set off is allowed.

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Challenging the above order of conviction and sentence imposed by the trial court, the accused therein preferred an appeal before the lower appellate court and

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by judgment dated 23/02/2012 in Crl.A.No.360 of 2010 the lower appellate court acquitted all the accused of all the charges levelled against them. It is the above order of acquittal and the findings recorded by the lower appellate court proposed to challenge by filing an appeal, for which the leave of this Court is sought for by the petitioner, who is the de facto complainant and the injured and examined as PW.1.

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I have heard Sri.P.Anoop, the learned counsel for the petitioner and Adv.Sri.V.T.Raghunath, the learned counsel for R1 to R3 and the learned Public Prosecutor.

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The learned counsel for the petitioner relying upon the findings of the learned Magistrate and supporting the same, contended that particularly inviting my attention to paragraph '7' of the trial court judgment submitted that the fact, that PW.1 sustained injury at the instance of the accused, is proved through the evidence of PW.1/the injured himself and the said evidence of PW.1 is supported by the medical evidence consists of the

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deposition of PW.4 lecturer in surgery at Medical College Hospital, Kozhikode, who examined PW.1 and also Ext.P2 wound certificate issued by PW.4. So, according to the learned counsel for the petitioner the trial court after considering the entire evidence and materials on record accepted the prosecution case and the contention raised by the defence about the delay, etc. are overruled by assigning proper reasons especially when the prosecution records itself explained the delay. Thus, according to the learned counsel, the appellate court went wrong in acquitting the accused by discarding the evidence, particularly medical evidence and ignoring the substantial evidence adduced by the prosecution through PW.1 the injured.

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On the other hand, the learned counsel for the respondent vehemently submitted that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt and the learned Magistrate failed to consider whether the accused were responsible

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for the injuries allegedly sustained by PW.1 and the contradictions and infirmities occurred in the prosecution case considered by the appellate court in favour of the accused and accordingly the accused are acquitted by the appellate court by assigning cogent and sufficient reasons. Those reasoning are supported by evidence and materials on record and therefore there is no scope for any interference with the order of acquittal recorded by the appellate court.

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I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the respondents and I have gone through the judgments sought to be impugned by the petitioner. I have also gone through the trial court judgment.

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In the light of the rival contentions and the evidence and materials available on record, 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 judgment of the lower appellate

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court and whether the judgment of the appellate court is perverse or illegal so as to interfere in appeal.

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At the outset, it is to be noted that, though the prosecution has initiated at the instance of the State, the State has not filed any appeal against the order of acquittal recorded by the appellate court and the present petition is preferred by the de facto complainant who is examined as PW.1. Admittedly PW.1 the de facto complainant and the accused were in enimical terms connected with a property dispute. The entire prosecution case, according to me, required to be considered and appreciated in the above background. It is also beyond dispute that PW.1, the de facto complainant the petitioner herein sustained injuries, has been noted by PW.4 in Ext.P2 wound certificate. Therefore, the crucial question to be considered is whether the prosecution has succeeded in proving that it was the accused responsible for the injuries sustained by PW.1. On such a consideration, firstly it has to be noted

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that, though the alleged incident took place on 25/01/2004, Ext.P1 F.I. Statement is dated 10/02/2004 and Ext.P4 F.I.R. was registered only on 10/02/2004. So there is substantial delay in lodging Ext.P1 and consequent registration of Ext.P4 F.I.R. According to the defence, the entire case is a false one. The appellate court has found that the delay is not properly explained, which finding is against the conclusion arrived by the trial court. But in the trial court judgment there is no detailed discussion as to how the prosecution has explained the delay. As rightly pointed out by the appellate court, even if PW.1 was not available in the medical college hospital on 26/01/2004, on which date PW.10, the investigating officer claimed to have reached the hospital, the investigating officer could have found out PW.1 and his statement could have been recorded. But there is no explanation for the same. What PW.1 stated was, though he was discharged from the hospital on 26/01/2004, he has been subsequently admitted in the

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hospital and after treatment for 16 days, as inpatient he was discharged and then he lodged F.I. Statement. According to me, the above explanation is not acceptable. In this case, it is relevant to note that PW.2 is a person cited and examined by the prosecution to prove the incident but PW.2 has also not lodged any complaint before the police. If PW.1 had been re-admitted in the hospital, on his discharge on 26/01/2004, he could have informed the police, but there is no answer for such questions. So, the unexplained delay goes against the prosecution case as such.

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It is relevant to note that, according to PW.1, A1 by using MO.1 sword inflicted injury on his head, but PW.4, the doctor, who examined PW.1 and who issued Ext.P2 wound certificate, deposed before the court in an unequivocal language that, if the injury found on the head of PW.1, as a result of using MO.1 weapon, the nature of the injuries would have been an incised wound. But the injuries noted as first one, is a lacerated wound. So, the

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claim of PW.1 that he was attacked by A1 by using MO.1 sword is not tallying with the medical evidence. In this juncture, it is relevant to note that, when PW.1, the investigating officer was examined, he had deposed before the court that he did not seize MO.1 sword. But according to him, what he seized were two knives. But, what police produced before the court is one sword and a knife. It is identified as MO.1 sword and MO.2 knife. There is no convincing explanation for the above contradictions and infirmities in the case of the prosecution with respect to the weapon. From the above facts it can be seen that the claim of PW.1 that he was attacked by A1 with MO.1 sword is proved as false and as unsustainable. In addition to the above facts, it can be seen that, though the accused are within the acquiantance with PW.1, when he deposed about the history of the wounds to PW.4, he never mentioned the name of any of the accused. Regarding the first injury sustained by him, his version before the doctor was, a

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person who can be identified on site inflicted the head injury. But he never said anything about the other two accused. So, considering the long rivalry between PW.1 and the accused connected with the civil dispute, according to me, the above lacuna in the evidence of PW.1 has to be considered in favour of the accused.

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Thus, going by the judgment of the lower appellate court, it can be seen that the lower appellate court considered the above infirmities and contradictions in the case of the prosecution and found that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Suffice to say, the learned Magistrate miserably failed to consider those aspects and the learned Magistrate proceeded to convict the accused on the premises that PW.1 sustained injuries as evident from the evidence of PW.1 and the medical evidence consists of deposition of PW.4 and Ext.P2 wound certificate. It is the above mistake committed by the trial court that is corrected by appellate court by assigning

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sufficient and cogent reasons. According to me, the findings of the lower appellate court and the reason given cannot be treated as perverse or illegal so as to interfere in appeal against the order of acquittal.

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In a recent decision of the Apex Court reported in Pudhu Raja & Another Vs. State represented by Inspector of Police [(2013) 1 SCC (Crl.) 430=2012 (11) SCC 196], the Hon'ble Apex Court has held that,

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“14. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the 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 innocence, interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”

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On examining the facts and circumstances involved

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in the case, in the light of the dictum laid down by the Hon'ble Apex Court in the decision cited supra, I am of

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the view that the petitioner has miserably failed to show any exceptional circumstances or to show that the judgment of the appellate court is perverse or illegal. Therefore, even if an appeal is entertained, there is little scope to interfere with the finding and order of acquittal recorded by the lower appellate court. Therefore, the petitioner is not entitled to get the relief as sought for and accordingly declining the special leave, this petition is dismissed.

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V.K.MOHANAN, JUDGE

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skj

Alikoya v. Nayadikuzhi Kunhahammed

Case brief

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Alikoya v. Nayadikuzhi Kunhahammed

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