Partly allowed

Joju.K.v. v. Kunjumon and Others

Kerala HC8 Sept 2016CRL.A/724/2009

Case brief

AI extract

What is this about?

The High Court allowed this criminal appeal partly. It set aside the acquittal of two police constables, finding the lower court erred in appreciating evidence regarding torture and grievous hurt. The Court remitted the case to the country court to grant the accused an opportunity to adduce further evidence.

What did the court decide?

Acquittal of first and second accused set aside; case remitted for opportunity to adduce further evidence; acquittal of remaining accused maintained.

Joju.K.v. Vs Kunjumon and Others — Civil Procedure and Limitation | Kerala HC (2016)

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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 B.KEMAL PASHA

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THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938

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CRL.A.No. 724 of 2009 (A)

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AGAINST THE ORDER IN Crl.L.P. 291/2009 of HIGH COURT OF KERALA DATED 03-04-2009

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AGAINST THE JUDGMENT IN CC 270/2002 of C.J.M.,THRISSUR DATED 12-01-2009

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APPELLANT(S)/COMPLAINANT:

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JOJU.K.V., S/O K.G. VASUDEVAN, KUNDELI HOUSE, VIYYUR, THRISSUR.

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BY ADV. SRI.P.V.CHANDRA MOHAN

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RESPONDENT(S)1 TO 5/ACCUSED 1 TO 5:

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1. KUNJUMON, POLICE CONSTABLE ATTACHED TO TOWN EAST POLICE STATION, THRISSUR.

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2. VIJAYAN, POLICE CONSTABLE, ATTACHED TO TOWN EAST POLICE STATION, THRISSUR.

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3. T.C.SUHAS, S/O.CHANDRAHASSAN, THAIVALAPPIL HOUSE, PAZHUVIL P.O., THRISSUR.

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4. M.SREENIVAS, S/O.NARAYANAN KARTHA, SREE MADAM, PARAPPUKKARA P.O., THRISSUR.

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CRL.A.No. 724 of 2009 (A)

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-2-

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5. SUBRAMANIAN, S/O.AYYAPPAKUTTY, EDAKKATTIL HOUSE, MARAVANCHERY P.O., CHENGALLUR680 312.

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

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R4 & 5 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN R1 & R2 BY ADV. SRI.S.RAJEEV R3 BY ADV. SRI.RAJIT

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 724 of 2009 ............................................................... Dated this the 8^th day of September, 2016

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J U D G M E N T

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Aggrieved by the judgment of acquittal passed by the Chief Judicial Magistrate, Thrissur in C.C.No.270/2002, the complainant before the court below has come up in appeal.

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The case before the court below is as a result of a private complaint filed by the appellant herein as complainant, against respondents 2 to 5 herein as accused, alleging offences punishable under Sections 323, 341, 325 and 506 (ii) read with Section 34 of the Indian Penal Code.

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According to the complainant, on 13.11.1996 at about 11 a.m. A3, who is one of the Directors of “Vahanayogam Chits and Motor Credits Pvt. Ltd.” which is a

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Crl. Appeal No. 724 of 2009 -: 2 :-

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private company, along with A1 and A2, who were police constables attached to the Thrissur Town East Police Station, appeared at the house of the the complainant and attempted to take the complainant to the Thrissur Town Police Station. Even though A1 had insisted the appellant to go along with them to the Police Station, he was not prepared to yield and he replied that he would appear at the Police Station with his lawyer. It is alleged that after exerting threat, A1 along with other police constables and A3 went away from there.

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On the same day by about 4.30 p.m., while the complainant was engaged in a chat with his friend PW4 Antony at a place called Chelakottukkara, A1 and A2 police constables on a motorbike and A3 and A4 on another motorbike came over there and they engaged in a wordy altercation with the complainant. A2 made a telephone call to the Police Station from the nearby telephone booth. Immediately, a police jeep with three policemen came over

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Crl. Appeal No. 724 of 2009

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there. A1 allegedly caught at the neck of the complainant and pushed him into the police jeep after slapping on his face and fisting on his chest. On the way to the Police Station, the complainant was allegedly beaten up and kicked all over his body by A1 and the other policemen in the jeep. A2, A3 and A4 followed the police jeep by the motorbikes.

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On reaching the Police Station, A1 dragged out the complainant from the police jeep and dragged him into the Police Station. It is alleged that seven police constables including A1 and A2 severely beat, fisted, and kicked the complainant in the Police Station, at the instigation of A3 to A5. A1 and A2 fisted on the chest and back of chest of the complainant. A2 allegedly kicked on his abdomen. A1 severely beat on the left ear of the complainant whereby he suffered the perforation of his left eardrum which resulted in his partial hearing loss. He was wrongfully confined in the police lock up till 8.15 p.m. on that day. Finally, when his

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relatives came in the night, he was released from wrongful confinement.

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According to the complainant, all along there was a

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demand by the policemen by whom he was beaten up, to withdraw the complaint filed by the complainant against the aforesaid finance company of which A3 to A5 are the Directors. Immediately, on his release from the wrongful confinement, he was taken to Aswini Hospital, Thrissur where he was admitted and treated as impatient till 19.11.1996. He was discharged from Aswini hospital on 19.11.1996 with an advice to continue treatment. Thereafter, he continued treatment from 03.12.1996 to 27.01.1997 at the Medical College Hospital, Thrissur.

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On 14.11.1996 the complainant preferred a complaint before the Superintendent of Police, Thrissur, through the mother of the complainant. May be as a result of the said complaint, by about 5.30 p.m., the Sub Inspector of Police of the East Police Station, Thrissur, reached Aswini

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Crl. Appeal No. 724 of 2009

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Hospital, on 14.11.1996. He had allegedly obtained the signatures of the complainant in some blank papers. On 30.07.1997, the complainant got refer notice from the Circle Inspector of Police by stating that the case registered in the matter was referred. According to the complainant, the case was referred illegally without conducting any investigation, and hence the complaint.

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The court below recorded the sworn statement of the complainant and the two witnesses and thereafter, intentionally the complaint was dismissed for default. Later, as per the orders of the Sessions Court, Thrissur in Crl.R.P. 45/2001, the case was again restored on 26.07.2002. PWs.1 to 3 were examined initially and Exts.P1 to P5 were marked. After hearing both the sides, charges were framed against the accused for the offences punishable under Sections 323 and 325 read with Section 34 IPC. The witnesses earlier examined were recalled at the instance of the accused, and they were again subjected to cross

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examination. Thereafter, PW4 was also examined by the complainant. On the side of the accused, DW1 was examined and Exts.D1 to D3 were marked. The court below found the accused not guilty of the offences with which they were charged and acquitted them under Section 248(1) Cr.P.C., through the impugned judgment.

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Heard the learned counsel for the appellant/ complainant and the learned counsel for R1 to R5.

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The learned counsel for the appellant as well as R1 to R5 have taken this Court through the entire evidence in the matter. According to the court below, in the impugned judgment, “the complainant had deliberately given an embellished version” in the protest complaint. On a careful scrutiny of the entire evidence in the matter, this Court is satisfied that the aforesaid observations made by the court below is clearly unfounded. The court below has considered some trivial aspects and has not cared to appreciate the evidence adduced by the complainant. It seems that the

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court below has treated the case before the court below based on a complaint with an attitude that such cases were false. Such a partisan attitude in differing a case based on

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a police report and a case based on a complaint, is not expected from a court of law. It seems that the court below has laboured much to disbelieve the versions of the complainant and the evidence adduced by the complainant. The entire observations made by the court below which were traced out to disbelieve the evidence of the complainant are clearly unfounded and thereby the same are set aside.

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The court below has not considered and appreciated the medical evidence in the matter in its fair and correct perspective. The court below was carried away by the fact that PW3 was an Orthopaedic Surgeon and he could not have deposed regarding the perforation in the left eardrum of PW1. The said observations are against commonsense. The court below ought to have considered

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Crl. Appeal No. 724 of 2009

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that at least PW3 was having a Bachelor Degree in Medicine and Surgery. Apart from that there is clear evidence from the part of PW2.

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The evidence of PW1 regarding his injuries are clearly corroborated by the evidence of PW2 and PW3. Of course, the evidence regarding the cause of such injury have also to be considered. PW1 has in detail narrated the entire event occurred. The evidence of PW1 is sufficiently corroborated by the evidence of PW4.

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As a statement under Section 313 Cr.P.C., A1 has filed a detailed statement in writing before the court below, in which it was admitted that he along with A2 had approached the complainant at his shop on 10.10.1996 and directed him to appear at the Police Station on the next day. According to him, apart from that, he has not done anything in the matter. The evidence of PW1 and his consistent versions in the complaint and even the contents of Ext.D2 first information statement clearly reveal that he was forcibly taken to the

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Crl. Appeal No. 724 of 2009 -: 9 :-

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Police Station, where he was subjected to severe torture. He was released from the Police Station during night, that too, even without registering a case against him. In such a context, A1 and A2 were duty bound to explain as to why this man was unnecessarily taken to the Police Station, tortured and detained in the Police Station till night. Instead of properly explaining the same, A1 and A2 had washed their hands by saying that they had merely appeared at the shop of the complainant and had directed him to appear at the police station on the next day.

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The evidence of PW2 and PW3 and the contents

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of the certificates prepared and issued by them clearly reveal that the complainant sustained grievous hurt. The complainant has no case that such grievous hurt was caused with the aid of any dangerous weapons or means. The evidence of PW2 and PW3 clearly reveal that such a grievous hurt caused to the eardrum could be caused by forcibly beating on the ear even with hand. In such case, if

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Crl. Appeal No. 724 of 2009 -: 10 :-

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such an injury is caused either by A1 or A2 or by any other policeman with their common intention, definitely it will invite an offence under Section 325 read with Section 34 IPC. The court below has not considered any of those aspects. Instead, the court below has relied on some trivial aspects to acquit the accused, may be because of the fact that A1 and A2 are policemen. Such an attitude cannot be expected from a court of law. As things stand now, it seems that there is sufficient evidence in this case to invite the offence punishable under Sections 323 and 325 read with Section 34 IPC., on the part of the appellants. Of course, the said question is left to be decided by the court below.

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At the same time, the learned counsel for A1 and A2 has canvassed an argument that they had with them sufficient evidence to prove their innocence and they did not get an opportunity before the court below to produce those evidence and to examine some more witnesses on their side. It is true that they had no such case before the court

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below, and they were doubly sure that the attitude of the court below was in their favour, and may be because of that fact, they might not have chosen to adduce such further evidence on their part. In such case, this Court is of the view that an opportunity can be granted to A1 and A2 to adduce further evidence, if any, on their part.

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The learned counsel for the A1 and A2 has forwarded a further argument that they may be given an opportunity to take up the contention regarding the protection under Section 197 Cr.P.C. before the court below. It is made clear that they are not entitled to take up such contention before the court below simply for the reason that to cause grievous hurt to a person is not part of the discharge of their official duties. Therefore, it is not open to them have recourse to such a contention before the court below.

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As far as respondents 3 to 5 are concerned, the only allegation against them is that they had instigated A1

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and A2 to inflict bodily harm on the complainant. As things stand now, there is no satisfactory evidence relating to the same and to invite common intention on their part in the incident. In such case, the judgment of acquittal of R3 to R5 is not liable to be interfered with. At the same time, the acquittal of A1 to A5 is patently illegal and the same is liable to be set aside.

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In the result, this Criminal Appeal is allowed in part and the acquittal passed by the court below in respect of A1 and A2 is set aside. The case is remitted to the court below for giving an opportunity to A1 and A2 to adduce further evidence on their part as discussed above. If so advised, the complainant can also adduce further evidence, if any. It is made clear that it is open to the parties to have recourse to Section 320 Cr.P.C., if so advised. The court below shall not insist the appearance of the complainant again before the court below. It is made clear that the complainant and the witnesses who were already examined on the side of the

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complainant need not be examined again. A1 and A2 shall appear before the court below on 03.10.2016.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Joju.K.v. v. Kunjumon and Others

Case brief

What is this about?

What did the court decide?

Joju.K.v. v. Kunjumon and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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