Decided on May 23,2003

Kilakkatha Parambath Sasi Respondents


J.B.KOSHY, J. - (1.) THIS appeal is filed by the State against the judgment of the Sessions Court, Thalassery in S. C. No. 32 of 1997, acquitting all the seven accused (respondents herein) charge sheeted in the above case. The charges framed against the accused were as follows: "That due to your political animosity towards Mayamkandy, Sathyan and Othayothu Shaji, sons of Sankaran, Sivapuram Amsom, Kanjileri desom, on 24-03-1994 at about 2 p.m. you all the seven accused formed into an unlawful assembly with your common object to commit murder of said Sathyan and Shaji and committed rioting with deadly weapons like sword, chopper, axe, etc. and attacked said Sathyan and Shaji on the south of the concrete bridge at Ayithara, Kandamkunnu amsom and first accused among you inflicted out injury on him and accused No.2 among you with a sword, accused No.3 with an axe and accused Nos. 4 and 7 with choppers inflicted cut injuries on said Sathyan, which resulted in the death of said Sathyan and thus you all the seven accused have committed rioting with dangerous weapons inflicted injury on said Shaji and attempted to murder him and thereby you all the accused have committed offences punishable under S.143, 147, 148, 324, 307 and 302 r/w S.149 of the Indian Penal Code within the cognizance of this Court."
(2.) PW 1 Shaji, who was injured in the incident gave Ext. P1 FI Statement at 5.30 p.m. while under treatment at Government Hospital, Thalassery. The Circle Inspector of Police, Kuthuparamba investigated the case. PW 1 to 4 were examined as occurrence witnesses. PW 5 is the second witness to Ext. P2 scene mahazar. PW 6 is the Doctor who examined PW 1 as well as the deceased Sathyan at Government Hospital, Thalassery. Ext. P3 is the wound certificate regarding deceased Sathyan and Ext. P4 is the wound certificate regarding PW 1. PW 7 Doctor conducted postmortem examination and Ext. P5 is the postmortem certificate. PW 8 is the Sub Inspector of Police, Maloor, who on getting information from the bus crew that two persons are lying near Ayithara bridge with injuries, went to the place and taken them in the police jeep to the Government Hospital, Kuthuparamba. According to the Sub Inspector, from there, the injured persons were removed to a car to the Government Hospital, Thalassery. PW 9 is the Clerk of the Session's Court and PW 10 is a witness to Ext. P10 seizure mahazar by which PW 1 Shaji handed over his dress and some currency to the police. PW 11 is a witness to Exts. P11 and P12 recovery mahazars, who witnessed the recovery at the instance of A1 and A7. PW 12 is the Additional Village Officer, Kandamkunnu who prepared Ext. P13 scene plan. PW 13 is the Assistant Sub Inspector of Police, Valapattanam who recorded Ext. P1 FI Statement. PW 14 is the Assistant Sub Inspector of Kuthuparamba who registered the FIR. PW 15 is the first investigating officer in this case, who prepared Ext. P2 scene mahazar, Ext. P18 body mahazar of the bus and seized the trip sheet of the bus, Ext. P17 under Ext. P18 mahazar. He arrested A1, A2 and A7. On the basis of the confession statements Exts. P22 and P23, of A1 and A7, the chopper was recovered under Ext. A11 mahazar at the instance of A1 and another chopper was recovered under Ext. P12 mahazar at the instance of A7. He also seized the dress of accused No. 1, 2 and 7 under Exts. P24, P25 and P28 mahazars. PW 16 is the photographer who took photographs of the scene and its negatives are marked as Ext. P27 and P28 series. PW 17 is the photographer who took photographs at the Medical College Hospital, Kozhikode. PW 18 is the Sub Inspector of Dharmadom Police Station who conducted inquest as per the direction of the Deputy Superintendent of Police, Thalassery and the inquest report is Ext. P31. PW 19 is the Deputy Superintendent of Police, Thalassery who took charge of the investigation on 28-06-1994. Defence examined one witness, Dr. T.N. Babu Raveendran as DW 1 to prove Ext. D2 chit to prove that A3 Ashokan has an injury on his foot and according to DW 1, the wound was sutured. He also deposed that entries in Ext. D2 can be seen in Ext. P3 OP Register and the relevant entry is Ext. D3(a). The Session's Court acquitted the accused with the following findings entered in Para.50 of the judgment: "50. On an appreciation of the entire evidence of the alleged eye witnesses PW l to 4, are inconsistent regarding the weapon used and also the witnesses have improved their version when they deposed before the court. Several material points which have not been stated to the police have been deposed before the court. I have no doubt in my mind that in this case the witnesses have not deposed before this court the real incident that happened. Developments were made and therefore, I am unable to accept the version of the witnesses as true and correct. So also, the medical evidence is not in conformity with the evidence given by PW 2 and the case of the prosecution that these accused with the intention to commit murder of Sathyan and Shaji formed themselves into an unlawful assembly and waited at the shop of 4th accused Babu for the deceased to reach the place in the bus also cannot be believed. In this circumstance, I am to hold that the prosecution has not presented before this court the true incident in this case in which another youth has been murdered allegedly due to political animosity. Therefore, I am to hold that the prosecution has failed to prove the case convincingly against these accused."
(3.) BEING an appeal against the order of acquittal, unless the Appellate Court finds that the findings are perverse, the Court will not interfere in the matter. If the view taken by the Sessions Judge is a possible one, even if another view is possible, this Court will not interfere with the order of acquittal passed in favour of the accused. However, being the first appeal this Court is bound to reappraise the evidence and find out whether the view taken by the Sessions Judge is a possible one as it is the duty of the Court to see that no innocent person is punished and at the same time that the real culprit should not escape on mere fanciful reasons. The Privy Council as early as in 1934 in Sheo Swarup v. King Emperor (1934 PC 227) held, in exercise of the powers of an appellate court, no distinction can be drawn up between an appeal from an order of acquittal and an appeal from a conviction and no limitations can be placed. But, the High Court should always give proper weight and consideration to such matters as : (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses". The above judgment is subsequently affirmed by the Supreme Court in Shivali Sahebrao Bobade and another v. State of Maharashtra (AIR 1973 SC 2622). In many cases like Surai Pal Singh v. The State (AIR 1952 SC 52) it was held that only on compelling reasons, Court will interfere in the order of the acquittal. In Shivaji Sahebrao Babade's case (supra) it was held that: The use of the words compelling reasons embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words compelling reasons. In later years the Court has often avoided emphasis on compelling reasons but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of the acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower Courts to acquit the accused and should interfere only if the satisfied after such examination that the conclusion reached by the lower Court that the guilt of the person has not been proved is unreasonable." We also refer to the judgment of the Apex Court in Narinder Singh and another v. State of Punjab (2000 AIR SCW 2313) and Ambika Prasad and another v. State (Delhi Administration) (2000 (2) SCC 646). In State of Rajasthan v. N. K. (2000 (5) SCC 30) it was held as follows: "..... It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilty has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females." ;

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