Allowed

Jose v. State of Kerala

Kerala HC18 Dec 2020Crl.Rev.Pet/886/2017

Case brief

AI extract

What is this about?

High Court allowed criminal revisions, acquitting accused Nos. 1 and 3. It set aside convictions for Sections 324 and 452 IPC, finding material omissions in considering Section 27 recovery validity, inconsistent medical evidence, and lack of consideration for benefit of doubt.

What did the court decide?

Conviction and sentence under Sections 324 and 452 IPC set aside; accused Nos. 1 and 3 acquitted and found not guilty.

Jose Vs State of Kerala — Cheque Dishonour | Kerala HC (2020)

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Crl.R.P.Nos.997 & 886 of 2017 1

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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 P.SOMARAJAN

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FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942

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Crl.Rev.Pet.No.997 OF 2017

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AGAINST THE JUDGMENT IN SC 659/2009 OF PRINCIPAL ASSISTANT SESSIONS COURT, KOLLAM

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AGAINST THE JUDGMENT IN CRA 198/2014 DATED 22-03-2017 OF ADDITIONAL DISTRICT & SESSIONS COURT - IV, KOLLAM

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REVISION PETITIONER/APPELLANT/3rd ACCUSED:

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VICTOR @ NJANDU VIJAYAN, S/o DANIEL, AGED 65 YEARS, SHIBU NIVAS, NEAR PULIYORAM CLAY COMPANY, CHERUMOODU CHERRY, CHERUMOODU VILLAGE, KOLLAM DISTRICT.

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BY ADVS.SRI.K.SIJU SMT.S.SEETHA

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RESPONDENT/RESPONDENT/STATE:

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STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KOLLAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. RAMESH CHAND

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.12.2020, ALONG WITH Crl.Rev.Pet.886/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.R.P.Nos.997 & 886 of 2017

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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 P.SOMARAJAN

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FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942

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Crl.Rev.Pet.No.886 OF 2017

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AGAINST THE JUDGMENT IN SC 659/2009 DATED 03-07-2014 OF PRINCIPAL ASSISTANT SESSIONS COURT, KOLLAM

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AGAINST THE JUDGMENT IN CRA 199/2014 DATED 22-03-2017 OF ADDITIONAL DISTRICT & SESSIONS COURT - IV, KOLLAM

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CRIME NO.150/2007 OF KUNDARA POLICE STATION, KOLLAM

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REVISION PETITIONER/APPELLANT/1st ACCUSED:

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JOSE, S/o MYCLE, SHIBU NIVAS, CHERUMOODU CHERRY, PERINADU VILLAGE, KOLLAM.

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BY ADVS.SRI.V.JAYAPRADEEP SMT.O.A.NURIYA

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RESPONDENT/RESPONDENT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.

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BY PUBLIC PROSECUTOR SRI. RAMESH CHAND

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.12.2020, ALONG WITH Crl.Rev.Pet.997/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.R.P.Nos.997 & 886 of 2017

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ORDER

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The correctness, legality and propriety of finding

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of guilt of accused No.1 and 3 by both the courts below

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for the offence under Sections 324 and 452 IPC are under challenge in these revisions mainly on the reason that there are material omissions to consider the reliability of recovery alleged to have been made under Section 27 of the Indian Evidence Act regarding MO2

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chopper, no scientific evidence adduced to show any incriminating factor attached to MO2, it was not brought to the notice of the doctor who prepared Exts.P5 and P6 wound certificates and treatment records

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– Exts.P6(a) and P6(b), the injuries noted in the

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respective wound certificates are not tallying with the weapon used - MO2 chopper, there is no corresponding

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injury in any of the wound certificates as against the user of an iron rod by the accused No.1 and no other

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overt act alleged or proved as against him, no

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satisfactory medical evidence adduced to show the real cause of the injury sustained, the principle of benefit

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Crl.R.P.Nos.997 & 886 of 2017 4

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of doubt not adhered to and the issue of sudden fight

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not properly considered and no evidence tendered from where initial provocation came up.

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MO2 is the chopper identified by PW1 and 2,

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both the victims, as that of the weapon used by accused No.2 for inflicting injuries. But the said weapon was not shown to the doctor who had drawn Exts.P5 and P6

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wound certificates. Exts.P6(a) and P6(b) are the

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treatment certificates. PW8 and PW10 are the doctors who had drawn Exts.P5 and P6 wound certificates. MO2 weapon admittedly was not shown to these two witnesses

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and no expert evidence adduced to show whether the injury sustained could be possible by the user of MO2 chopper. The very nature of the injuries would further suggest that it may not be possible to cause those injuries by the user of a chopper as there is no cut injury or chopping injury.

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MO2 chopper was not sent for chemical analysis

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or any laboratory test in order to make the object an incriminating one. The legal position was settled by a Division Bench of this Court in Unnikrishnan v. State

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of Kerala [2017 (2) KHC 123 = 2017(2) KLT SN 15] that

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Crl.R.P.Nos.997 & 886 of 2017 5

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in order to make out a case under Section 27 of the Evidence Act, the object recovered should be an incriminating one. A mere identification by PWs 1 and 2, both the victims, may not be sufficient especially when the alleged incident had happened in and around 8 p.m. and no evidence tendered to show that there were sufficient light so as to identify MO2 chopper used for inflicting injury by accused No.2. Hence the recovery cannot be brought under the purview of Section 27 of the Evidence Act.

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MO1 iron rod is the weapon used by accused No.1

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as per the prosecution. The oral evidence tendered by PWs 1 and 2 would show that the allegation as against accused No.1 that he had used MO1 iron rod and beat on

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the back side of the body. But there is no corresponding injury on the back side of the body as per the wound certificates. The only overt act alleged against accused No.1 hence stood not established with the aid of medical evidence. There is no corresponding injury, much less, any injury on the back side of the body. The said inconsistency was not taken up or

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clarified during the examination of PWs 1 and 2 or at

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Crl.R.P.Nos.997 & 886 of 2017

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the time of examination of the investigating officer.

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The reliability of the oral evidence tendered by PWs 1 and 2 especially when there is inconsistency with the medical evidence was not tested with the existing enmity with the victim and the accused persons by the trial court. The said question was not taken up or considered by the first appellate court. The principle of benefit of doubt was neither considered nor applied either by the trial court or by the first appellate court. The first appellate court even did not go into that question.

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The question of sudden fight and from where the initial provocation came was not properly considered either by the trial court or by the first appellate court.

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The above said material omissions and

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inconsistency with the medical evidence and existence of prior enmity with the accused persons are sufficient to extend the benefit of doubt to accused Nos.1 and 3.

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But those factors were not properly taken up or considered by the courts below. The jurisdiction vested

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with the trial court as well as the first appellate

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Crl.R.P.Nos.997 & 886 of 2017 7

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court was not exercised in its correct perspective and as such, the conviction under Sections 324 and 452 IPC and the sentence awarded are liable to be set aside as against accused Nos. 1 and 3 by allowing these

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revisions. Both the accused Nos.1 and 3 are found not guilty of any offence alleged and hence acquitted for the offences.

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Revision Petitions are allowed accordingly.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Jose v. State of Kerala

Case brief

What is this about?

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Jose v. State of Kerala

Case brief

What is this about?

What did the court decide?

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