Allowed

Anilkumar @ Chanthu v. State of Kerala

Kerala HC4 Mar 2014Crl.Rev.Pet/1920/2007

Case brief

AI extract

What is this about?

The Court entertained a criminal revision petition against a conviction for assault. Finding that the accused had successfully proved an alibi through documentary evidence and defense witnesses, the Court held that the prosecution failed to prove the case beyond reasonable doubt and acquitted the accused.

What did the court decide?

The conviction and sentence were set aside; the accused was acquitted, set at liberty, and directed to be released on bail.

Anilkumar @ Chanthu Vs State of Kerala — Cheating and Forgery | Kerala HC (2014)

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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 M.L.JOSEPH FRANCIS

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TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935

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Crl.Rev.Pet.No. 1920 of 2007 ( )

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CRL.APPEAL NO. 299/2000 of ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT-I),

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THIRUVANANTHAPURAM

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CC 611/1996 of J.M.F.C.-I, ATTINGAL

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REVISION PETITIONER(S)/ACCUSED/APPELLANT::

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ANILKUMAR @ CHANTHU, LEELA BHAVAN, CHATHANKONAM, KALLARA (P.O) THIRUVANANTHAPURAM DISTRICT.

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BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU

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RESPONDENT/COMPLAINANT/STATE::

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

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BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.L.JOSEPH FRANCIS, J.

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Crl.R.P. No.1920 of 2007

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----------------------------------------------Dated 4^th March, 2014

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O R D E R

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Revision petitioner is the accused in C.C.No.611 of 1996 on the file of the Judicial First Class Magistrate I, Attingal and the appellant in Crl. Appeal No.299 of 2000 on the file of the Additional District and Sessions Court (Fast Track Court I), Thiruvananthapuram. The accused was charge sheeted for the offences punishable under Sections 452, 324 and 323 of the Indian Penal Code (for short, 'the I.P.C.').

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The prosecution allegation is that on 7.6.1996 at about 4 p.m., the accused trespassed into the house of CW1 at Avanavanchery and caused injuries to CW1 by beating on different parts of her body with an iron rod and also voluntarily caused hurt with his hand and thereby committed the offences punishable under the above Sections.

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Before the trial court, on the side of the prosecution, PW1 to PW7 were examined and Exts.P1 to P7 were marked. On the defence side, DW1 to DW3 were examined and Exts.D1 to D4(a) were marked. The learned

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Magistrate, on considering the evidence on record, convicted the accused under Sections 452, 323 and 324 of the Indian Penal Code and sentenced him to undergo simple imprisonment for two years under Section 452 of the I.P.C. and simple imprisonment for two years under Section 324 of the I.P.C. No separate sentence was awarded for the offence under Section 323. The sentences were ordered to run concurrently. Against that conviction and sentence, the accused filed Crl. Appeal No.299 of 2000 before the Additional District and Sessions Court (Fast Track Court I), Thiruvananthapuram, which was dismissed. Against that judgment, the appellant/accused filed this Criminal Revision Petition.

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Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

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Learned counsel for the revision petitioner raised the following arguments : The courts below failed to see that there is absolutely no evidence to convict the revision petitioner and in this regard, the prosecution has miserably failed to prove the case beyond reasonable doubt especially when there was

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Crl.R.P.No.1920/07

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no consistent case and sufficient evidence for the prosecution. The evidence of PW1, PW2 and PW6 are contradictory in material particulars and contrary to their statements given before the police. It has been brought out in evidence that from the place where PW6 was standing, there was no possibility for her to see the alleged incident. The evidence of PW1 cannot be believed at all as she has made exaggerations and embellishments with the deliberate and wilful intention of convicting the petitioner as she wanted to wreak vengeance due to her previous enmity. The courts below ought to have found that on the date and time of the alleged occurrence, the petitioner was on duty at Thiruvananthapuram Motor Workshop in SAP camp. The petitioner was staying with his wife at SAP camp quarters at Thiruvananthapuram and that there was some altercation between the father-in-law of the petitioner and PW1 and she was beaten by him with a small stick when she abused him and to wreak vengeance and to see that the petitioner loses his job, a false criminal case was foisted against him to convict and sentence him with the aid of PW7 Sub

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Inspector of Police, who is the brother of a close friend of PW1.

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The petitioner has examined DW1 and DW3 and produced Exts.D1 to D4 (a) to show that he was working and was present at his place of employment even at 4.30 p.m. on 7.6.1996. All the prosecution witnesses have deposed that the accused is residing with his family at Thiruvananthapuram. The quarters at Thiruvananthapuram where the accused and his family members were residing is far away from the scene of occurrence and there was no possibility for the accused to reach the scene of occurrence at the alleged time of occurrence in view of Exts.D1 to D4(a). The learned Public Prosecutor supported the judgments of the courts below.

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PW1 Santhakumari is the defacto complainant who gave Ext.P1 F.I. statement before the Police. PW1 deposed that the occurrence took place on 7.6.1996 at 4.30 p.m. in the northern room of her house at Avanavanchery. The husband of PW1 was conducting a stationery shop at Gramamukku. PW1 deposed that after giving lunch to her husband when she reached her house, the accused and his wife were found

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abusing her daughter Sreekala. When PW1 asked them why they were abusing Sreekala, the accused came there with an iron rod to assault her. When PW1 entered into the room of the house, the accused beat her with the iron rod on her thighs and hands and when she cried aloud, the accused scolded her and he beat her on her right cheek with hands.

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PW1 deposed that at that time, CW3 Syamala came there with milk and when Syamala asked the accused why he was harassing PW1, the accused pushed Syamala and then he went to his house with the iron rod. PW1 identified MO1 as the iron used by the accused to beat her. Ext.P1 is the F.I. statement given by PW1 on the next day. In cross examination, PW1 admitted that Venunathan Nair is her uncle and the accused is the husband of the daughter of Venunathan Nair. PW1 admitted that the accused was a Police Constable working at S.A.P. and the accused and his wife were residing in a quarters at Thiruvananthapuram. PW1 deposed that the accused pushed her daughter and threw away her son, who was aged 12 years. But, in Ext.P1 F.I. statement, PW1 has stated

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that when she reached her house at 4.30 p.m. after serving lunch to her husband, her daughter told her that the wife of the accused abused her. But, when PW1 was examined before the court, her version was that she saw the accused and his wife abusing her daughter. PW1 deposed that CW3 Syamala came to her house with milk when the accused was going out of the house after assault. If the version of PW1 was true, there was no chance for CW3 Syamala to witness the occurrence.

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PW2 Sreekala is the daughter of PW1. PW2 deposed that on 7.6.1996 at about 4.30 p.m., Suveni, the wife of the accused abused her and when PW1 returned from the shop of her husband after giving food, PW1 heard the wife of the accused abusing PW2. PW1 then asked Suveni about the reason for abusing Sreekala and when PW1 and PW2 went inside the house, the accused came running with an iron rod and assaulted PW1 with the iron rod. PW2 deposed that the accused and his wife were residing at Thiruvananthapuram in a quarters.

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PW3 Ayyappan is an independent eye witness to

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the occurrence, who turned hostile at the time of examination. He deposed that on 7.6.1996 at about 4.30 p.m., while he was walking through the road near the house of PW1, he saw PW1 abusing Venunathan Nair and then Venunathan Nair took a stick and assaulted PW1. PW3 deposed that he has not seen the accused assaulting PW1. PW4 is an attesting witness to Ext.P4 scene mahazar. PW5 is Dr.Mohanlal who was working as Assistant Surgeon in Government Hospital, Attingal. PW5 deposed that he had worked with Dr. Abdul Jabbar in that hospital. PW5 deposed that Dr.Abdul Jabbar was on long leave and was working abroad. Ext.P5 is the wound certificate issued by Dr.Abdul Jabbar. In Ext.P5, the date of examination of PW1 is shown as 8.6.1994 at 10 a.m. and the certificate bears the date 8.6.1996. In Ext.P5, the alleged cause of injury is given as “9.8.1996 ..................................................................................... ............................................................................... Ext.P5 shows that the certificate reached the Magistrate Court only on 12.8.1996. In Ext.P5, the name of the accused is not given as the assailant. The doctor who issued Ext.P5 was not examined

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and therefore, it cannot be said that Ext.P5 was prepared on 8.6.1996 after examining PW1 on that day. Hence, Ext.P5 cannot be taken as a corroborative piece of evidence regarding the occurrence. PW6 Syamala is an eye witness to the occurrence. PW6 deposed that when she went to the house of PW1, she saw PW1 and Suveni engaged in a wordy quarrel and then the accused came there with an iron rode and PW1 rushed into the room of the house and then the accused assaulted PW1 with the iron rod and thereafter assaulted on her cheeks with his hands. PW6 deposed that when she tried to obstruct the accused, he pushed her down and the accused went away with the iron rod. PW6 admitted that the accused and his wife were residing at Thiruvananthapuram in a quarters. PW6 deposed that the house of PW1 is a thatched one and the house of Suveni is a terrace building near to the house of PW1. PW6 deposed that the accused entered into the room and beat PW1. PW6 deposed that she saw the incident while she was standing on the veranda of the house and that one person standing in the courtyard of the house cannot see the occurrence that took

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place inside the room. PW7 Raveendran Nair was the Sub Inspector of Police, Attingal Police Stationn, who investigated the case. PW7 deposed that at the time of occurrewnce, PW6 was standing in the courtyard of the house. If PW6 was standing in the courtyard of the house, she might not have seen the accused assaulting PW1. Therefore, the testimony of PW6 cannot be relied on.

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The main defence of the accused is the plea of alibi. A successful plea of alibi is sufficient to overturn the prosecution case. A witness ought to be judged on the same lines whether he is a prosecution witness or a defence witness. The presumption that defence witnesses always lie and prosecution witnesses always tell the truth is neither justified nor proper.

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The defence version is that the accused was employed in SAP camp at Thiruvananthapuram on the date and time of occurrence and he was staying with his wife at SAP camp quarters at Thiruvananthapuram and that there was some altercation between the father-in-law of the accused and

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PW1 and she was beaten by him with a small stick when she abused him and to wreak vengeance and to seek that the accused loses his Government job, a false criminal case has been foisted against him to convict and sentence him with the aid of PW7, the Sub Inspector of Police, who is the brother of a close friend of PW1.

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The accused has examined DW1 to DW3 and produced Exts.D1 to D4(a) to show that he was working and was present at his place of employment even at 4.30 p.m. on 7.6.1996. DW1 is the Motor Transport Officer under whom the accused was working on 7.6.1996 at 4.30 p.m. He proved the Attendance Register dated 7.6.1996 to show that the accused was present on 7.6.1996. Ext.D1(a) is the relevant entry relating to the accused. Ext.D2 is the morning parade register. It shows that the accused attended the morning parade on 7.6.1996. Ext.D2(a) is the relevant entry. Ext.D3 is the roll register. It shows that the accused attended the roll call on 7.6.1996 at 4.50 p.m. and Ext.D3(a) is the relevant entry. Krishnan Nair, the Havildar conducted the roll call. In order to

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examine him, the accused filed C.M.P.No.2081/2000 before the trial court, but it was not allowed. Ext.D4 is the G.D. for the date 7.6.1996. It shows that the accused was present for duty on 7.6.1996 at 4.45 p.m. Ext.D4(a) is the relevant entry.

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DW2, the Constable attached to Central Police

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Work Shop, where the accused was working on 7.6.1996 has deposed that the accused was present and was available at the place of employment throughout his duty time.

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DW3 is the Havildar of Police Workshop. He has stated that he was also available when the roll call was made on 7.6.1996 by Krishnan Nair and the accused was also present when the roll call was conducted on 7.6.1996 at 4.45 p.m. at his place of employment.

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The standard of proof required to prove the defence plea is not the same as that which is required to prove the prosecution case. Since the testimony of DW1 to DW3 is supported by official records, I find no reason to disbelieve their testimony. Since the defence evidence probabilises the defence plea, I am of the view that the accused is entitled to

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the benefit of doubt. Therefore, I am of the view that the prosecution has not succeeded in proving its case against the accused beyond reasonable doubt and as such, the trial court and the appellate court are not justified in convicting and sentencing the accused under Sections 323, 324 and 452 of the I.P.C.

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Accordingly, this Criminal Revision Petition is allowed. The conviction and sentence of the accused in C.C.No.611 of 1996 on the file of the Judicial First Class Magistrate I, Attingal under Sections 323, 324 and 452 of the I.P.C. is set aside and the accused is found not guilty of those offences and he is acquitted and set at liberty. His bail bond is cancelled.

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Sd/-

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M.L.JOSEPH FRANCIS, JUDGE.

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tgs

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(true copy)

Anilkumar @ Chanthu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Anilkumar @ Chanthu v. State of Kerala

Case brief

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