State Of Kerala vs Biju @ Pindi Biju on 10 December, 2018

State Of Kerala vs Biju @ Pindi Biju on 10 December, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                                   &

                 THE HONOURABLE MR. JUSTICE A.M.BABU

  MONDAY, THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

                         CRL.A.No. 217 of 2014

  AGAINST THE JUDGMENT IN SC 503/2003 of I ADDL.SESSIONS JUDGE,
                    THRISSUR DATED 12-12-2012

                CP 33/2003 of J.M.F.C., KODUNGALLUR

          CRIME NO. 134/2001 OF Kodungallur Police Station



APPELLANT/COMPLAINANT:


              STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF
              POLICE, MALA


              BY SR. PUBLIC PROSECUTOR SRI. S.U NAZAR



RESPONDENTS/ACCUSED NOS.1 TO 8 IN SC:

      1       BIJU @ PINDI BIJU
              S/O.GOPALAN, PINDIYATH HOUSE, MADAVANA, ERIYAD.680666

      2       KALESH, S/O.KARTHIKEYAN,
              NADUMURI, MADAVANA ERIYAD.680666

      3       SUDHEER, S/O.APPU,
              THOTTUNGAL, MADAVANA, ERIYAD.680666

      4       RAMESH
              S/O.RAMAKRISHANAN, VELIPARAMBIL, MADWAVANA,
              KAILAKULAM, ERIYAD.680666

      5       SAJEEVAN, S/O.SANKARAN, PUTHUNILATH, MADAVANA,
              ERIYAD.680666

      6       SUJITH
              S/O.GOPI, PADIYATH, MADAVANA, ERIYAD.680666
                                        2
Crl.A.No.217/2014 &
Crl.A.(V).NO.909/2018




          7         RAJU
                    S/O.RAJAN, KARACHIRA, MADAVANA, ERIYAD.680666

          8         KALESH
                    S/O.DIVAKARAN, KAREYEZHUTH, MADAVANA, ERIYAD 680666

                    BY ADVS.
                    SRI.BABU KARUKAPADATH
                    SRI.P.K.VARGHESE
                    SMT.M.A.VAHEEDA BABU
                    SRI.KANDAMPULLY RAHUL
                    SRI.K.A.NOUSHAD
                    SRI.MITHUN BABY JOHN




THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 7.12.2018, ALONG
WITH   CRA(V).909/2018,  THE  COURT   ON  10.12.2018   PASSED  THE
FOLLOWING:
                                            3
Crl.A.No.217/2014 &
Crl.A.(V).NO.909/2018

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                        THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                                           &

                          THE HONOURABLE MR. JUSTICE A.M.BABU

    MONDAY, THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

                                CRA(V).No. 909 of 2018

    AGAINST THE JUDGMENT IN SC 503/2003 of I ADDL.SESSIONS JUDGE,
                      THRISSUR DATED 12-12-2012

                    CP.NO.33/2003 OF JFCM COURT, KODUNGALLUR

              CRIME NO. 134/2001 OF Kodungallur Police Station



APPELLANT/S:


                    SINDHU
                    AGED 40 YEARS
                    W/O.LATE LIBEESH BABU, KARIYEZHATH HOUSE,
                    P.O.EDAVILANGU, PIN-680 671.

                    BY ADVS.
                    SRI.P.S.SREEDHARAN PILLAI
                    SRI.ARJUN SREEDHAR
                    SRI.ARUN KRISHNA DHAN
                    SRI.JOSEPH GEORGE(MULLAKKARIYIL)
                    SRI.T.K.SANDEEP



RESPONDENTS/STATE & ACCUSED NOS.1 TO 8:

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

          2         BIJU PINDI BIJU
                    S/O.GOPALAN, PINDIYATH HOUSE, MADAVANA, ERIYAD-680
                    666.
                                        4
Crl.A.No.217/2014 &
Crl.A.(V).NO.909/2018

          3         KALESH
                    S/O.KARTHIKEYAN, NADUMURI, MADAVANA, ERIYAD-680 666.

          4         SUDHEER
                    S/O.APPU, THOTTUNGAL, MADAVANA, ERIYAD-680 666.

          5         RAMESH
                    S/O.RAMAKRISHNAN, VELIPARAMBIL, MADAVANA, KATTAKULAM,
                    ERIYAD-680 666.

          6         SAJEEVAN
                    S/O.SANKARAN, PUTHUNILATH, MADAVANA, ERIYAD-680 666.

          7         SUJITH
                    S/O.GOPI, PADIYATH, MADAVANA, ERIYAD-680 666.

          8         RAJU
                    S/O.RAJAN, KALACHIRA, MADAVANA, ERIYAD-680 666.

          9         KALESH
                    S/O.DIVAKARAN, KAREYEZHUTH, MADAVANA, ERIYAD-680 666.



THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD
ON 7.12.2018, ALONG WITH CRL.A.217/2014, THE COURT ON 10.12.2018
DELIVERED THE FOLLOWING:
                                          5
Crl.A.No.217/2014 &
Crl.A.(V).NO.909/2018

                                  JUDGMENT

SHAFFIQUE, J Crl.A.No.217/2014 has been filed by the State and Crl.A. (V).No.909/2018 has been filed by the legal heir of the victim challenging the judgment dated 12.12.2012 in S.C.No.503/2003 of the 1 st Additional Sessions Court, Thrissur. By the impugned judgment, the court below acquitted all the accused. The 2nd accused died during the pendency of the appeals as evident from the death certificate issued by the Registrar of Births and Deaths, Eriyad Gramapanchayat on 28.6.2018.

2. The Accused were charge-sheeted for the offences under Sections 143, 147, 148, 324, 326 and 302 read with Sectin 149 of the IPC. The prosecution case was that on 20.3.2001 at 8 pm, the accused persons armed with deadly weapons formed themselves into an unlawful assembly and with an intention to murder one Libeesh Babu, attacked him at Kattakulam-Thiruvallur Road while he was travelling in a scooter. He was attacked with deadly weapons. Thereafter he was taken to the hospital and he died due to the injuries sustained to his head at 8.35 pm on the same day.

3. In order to prove the prosecution case, PW1 to PW33 were examined and marked Exts.P1 to P42. MO1 to MO10 material objects were produced and identified.

4. Perusal of the records would show that PW5, PW6 and PW7 Crl.A.No.217/2014 & Crl.A.(V).NO.909/2018 were the eye witnesses. But while they were being examined before court, they turned hostile. The court below found that in the absence of any evidence to prove the crime and any other circumstances existed to prove that the accused had committed the said crime, the accused were acquitted.

5. We heard the learned Public Prosecutor, the learned counsel appearing for the respondents as also the learned counsel for the victim.

6. When the court below had considered the entire evidence of witnesses and found that when all the occurrence witnesses had turned hostile and when there were no other circumstances to point out that the accused had committed the crime, it may not be possible for the court below to convict any of the accused.

7. It is trite that when the trial court after examining the evidence had acquitted the accused, unless it is found that the appreciation of evidence is perverse or the court below had not relied upon sufficient material or that it is totally unreasonable to arrive at the said finding, it is not possible for the appellate court to interfere with the said order of acquittal.

8. In the cases on hand, after going through the entire evidence, we are of the view that nothing has been brought out by the prosecution to prove that the accused persons were involved in the crime. Of course, the statements of PW5, PW6 and PW7 have been recorded by the Judicial Crl.A.No.217/2014 & Crl.A.(V).NO.909/2018 First Class Magistrate, Kunnamkulam and the statements were marked as Exts.P4, P6 and P7. The said statements under Section 164 of the Cr.P.C will not render any assistance to the prosecution, as it can be used only for the purpose of corroboration or contradiction.

In the said circumstances, when legal evidence is not available to convict the accused persons and there is no perversity or unreasonableness in the judgment of the court below, we do not think that this Court will be justified in interfering with the order of acquittal. No grounds have been made out for interference.

The criminal appeals are hence dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-

                                                            A.M.BABU

                        True copy                            JUDGE
kp                       P.A. To Judge.

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