Allowed

Chacko v. S.I.of Police

Kerala HC2 Jun 2023Crl.Rev.Pet/1808/2002

Case brief

AI extract

What is this about?

High Court in criminal revision allowed the petition, setting aside conviction and sentencing the accused acquitted. Found that failure to examine investigating officer regarding procurement of weapons caused fatal prejudice to the accused, deeming further remand inappropriate due to time lapse.

What did the court decide?

Conviction and sentence set aside; accused acquitted.

Chacko Vs S.I.of Police — Criminal Trial and Appeal | Kerala HC (2023)

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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 BECHU KURIAN THOMAS

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FRIDAY, THE 2ND DAY OF JUNE 2023 / 12TH JYAISHTA, 1945

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CRL.REV.PET NO. 1808 OF 2002

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AGAINST THE JUDGMENT IN C.C.NO.343/1988 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKKANCHERRY

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CR.A.NO.334/2000 OF ADDITIONAL DISTRICT COURT (ADHOC), FAST

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TRACK COURT NO.1, THRISSUR

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REVISION PETITIONERS/APPELLANTS/ACCUSED 1,3,4 & 5:

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1 CHACKO S/O THOMAS, MANALITHARA, THRISSUR DISTRICT.

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2 BOSE, S/O. APPU, KILANNUR, THRISSUR.

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3 ABBAS, S/O. OFFAL, KILLANNUR, THRISSUR.

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4 BHARATHAN, S/O. PURUSHOTHAMAN KILLANNUR, THRISSUR DISTRICT.

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BY ADV SRI.T.G.RAJENDRAN

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RESPONDENTS/RESPONDENTS/COMPLAINANT:

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1 S.I.OF POLICE, VADAKKANCHERRY

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2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV
C.N.PRABHAKARAN
PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 02.06.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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Crl. R.P. No.1808 of 2002

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BECHU KURIAN THOMAS, J. ==================== Crl. R.P. No.1808 of 2002

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===================== Dated this the 2^nd day of June, 2023

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ORDER

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Revision Petitioners are the accused in C.C.No.343/1988 on the files of the Judicial First Class Magistrate Court, Vadakkancherry. Originally there were five accused, of which 2^nd accused died at the trial stage and therefore, revision petitioners are accused 1, 3, 4 and 5 respectively.

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This case had a chequered career. Petitioners were indicted for the offences under Sections 143, 147, 148, 341, 324 and 326 r/w Section 149 of the Indian Penal Code, 1860. By judgment dated 08.11.1991, the accused were convicted for all the offences alleged. However, on appeal as Crl.A.No.225/1991, the Sessions Court by judgment dated 12.11.1993, set aside the conviction and sentence of the accused and remanded the case for a fresh trial with a direction to frame fresh charges. While the trial was going on, the prosecution filed a petition to withdraw the case, which was dismissed on 11.04.1997. Challenge against the said order was dismissed by High Court on 13.12.1997. Subsequently, the accused filed a petition to close the evidence and to acquit them based on the decision in Raj Deo Sharma ( II ) vs. State of Bihar [(1999) 7 SCC 604] . On the basis of

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Crl. R.P. No.1808 of 2002

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the aforesaid decision, the prosecution evidence was closed. Later, the learned Magistrate by judgment dated 01.07.2000, found the accused 1, 3, 4 and 5 guilty for the offences under Sections 142, 147, 148, 341, 324 and 326 r/w Section 149 of the Indian Penal Code 1860, and they were convicted to undergo imprisonment for varying periods for the separate offences. On appeal, the learned Sessions Judge confirmed the conviction and sentence and dismissed the appeal. Thus, this revision is preferred.

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The prosecution alleged that, the accused due to a previous enmity formed themselves into an unlawful assembly on 22.07.1988 at around 9.00 pm and armed with dangerous weapons committed rioting and assaulted PWs 1 and 2 with the weapons carried by them and inflicted serious injuries including fracture and thereby committed the offences alleged.

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Sri. T.G.Rajendran, the learned counsel for the revision petitioners, contended that, the incident occurred more than 35 years ago, and that by itself is a ground to acquit the revision petitioners. The learned counsel further pointed out that, after a retrial was ordered by the Sessions Court, prosecution omitted to examine the investigating officer which stares at the reliability of the prosecution evidence. The learned counsel asserted that, the irregularity and impropriety of the finding rendered by the Trial Court as well as the Appellate Court is glaring since, the non examination of the

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Crl. R.P. No.1808 of 2002

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investigating officer has led to severe prejudice to the accused, as the numerous contradictions and omissions in the evidence of PW1 to PW4 could not be proved. It was also pointed out that, the evidence of PW7 who, though turned hostile to the prosecution, had clearly deposed that the material objects produced by him were those that he had purchased from a shop at the direction of the investigating officer. It was submitted that the aforesaid fact could have been convincingly proved, had the investigating officer been examined. The learned counsel submitted that, the failure to examine the investigating officer when considered in the light of the prejudice caused to the accused as mentioned above becomes fatal to the prosecution case. The learned counsel for the revision petitioners also made available certified copies of the depositions of PW1 to PW5.

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Sri. C.N.Prabhakaran, the learned Public Prosecutor on the other hand submitted that, omission to examine the investigating officer is not fatal to the prosecution as held by the Supreme Court in Behari Prasad and Others vs. State of Bihar [(1996) 2 SCC 317] as well as in Ram Gulam Chaudhary and Others vs State of Bihar [AIR 2001 SC 2842] and therefore, the contention now urged is immaterial. Referring to the findings of the Trial Court as well as the Appellate Court, on the issue of non examination of the investigating officer, it was argued that in the absence of any prejudice caused to the accused, the conviction and sentence imposed upon the accused

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Crl. R.P. No.1808 of 2002

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ought not to be interfered with.

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While appreciating the contentions advanced by this Court, it is apposite to bear in mind, the limited jurisdiction under Section 397 r/w Section 401 of Cr.P.C. In exercise of the revisional jurisdiction it is not proper on the part of this Court to interfere with findings of fact rendered by two courts concurrently, unless the irregularity or impropriety in the findings goes to the root of the matter.

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On a perusal of evidence of PWs 1 to 4 it is revealed that, the accused had attempted to bring out certain contradictions and omissions in their evidence. No doubt, these contradictions and omissions becomes relevant only when they are proved through the investigating officer. The reliability or otherwise of the deposition on each of the contradictions and omissions certainly depends upon the evidence given by the investigating officer. Unfortunately, such an evidence is not before the Court.

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Further, PW7 in his deposition mentioned that the material objects were produced by him at the request of the investigating officer and he had procured the same from a nearby shop. This crucial piece of evidence could have been proved through the investigating officer and if, it was proved, the same would have created serious dent in the prosecution case. In the decision in Behari Prasad and

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Others vs. State of Bihar [(1996) 2 SCC 317], it was held that, mere non examination of the investigating officer will not be fatal to

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Crl. R.P. No.1808 of 2002

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the prosecution case as it depends upon the facts of each case. Similarly, in the decision in Ram Gulam Chaudhary and Others vs. State of Bihar [AIR 2001 SC 2842] , referring to various decisions on the point, Supreme Court held that the omission to examine the investigating officer is fatal to the prosecution case, only if prejudice is caused to the accused. Thus it is evident that, non examination of the investigating officer will not in every case be fatal to the prosecution. Such non examination can be fatal only if the evidence of the investigating officer was crucial and prejudice has occasioned to the accused due to such non examination.

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The accused is alleged to have assaulted the defacto complainant and other witnesses and even inflicted serious injuries on them. The allegation revealed that, dangerous weapons were allegedly used by the accused. However, the deposition of PW7 that, those weapons were procured at the behest of the investigating officer from a nearby shop strikes at root of the prosecution case, if the same stood proved. Proof of the aforesaid fact could have been elicited through the investigating officer, and in the absence of examining the investigating officer, there is undoubtedly prejudice that has occasioned to the accused. Further, in the light of the alleged omissions and contradictions in the evidence of PWs 1 to 4, the statement of PW7 regarding procurement of material objects assumes significance. Therefore, it has to be held that absence of an

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Crl. R.P. No.1808 of 2002

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opportunity to prove those contradictions and omissions through the investigating officer has caused serious prejudice to the accused.

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Though this Court could have remanded the matter for examining the investigating officer, considering the lapse of almost 35 years since the date of incident, it is felt that a remand is not appropriate and would prejudice the rights of the accused.

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Having regard to the discussions made above, this Court is satisfied that the accused are entitled to be acquitted and the conviction and sentence imposed upon them be set aside.

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Therefore, the conviction and sentence imposed upon the accused in C.C. No.343/1988 on the files of the Judicial First Class Magistrate Court, Vadkkancherry, as confirmed in Crl.A.No.334/2000 on the files of III^rd Additional Sessions Court (Adhoc), Fast Track Court, No.1, Thrissur, are set aside and the accused are hereby acquitted.

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This criminal revision petition is allowed as above.

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Sd/-

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BECHU KURIAN THOMAS JUDGE

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jka.02.06.23.

Chacko v. S.I.of Police

Case brief

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Chacko v. S.I.of Police

Case brief

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