Tomy & Anr vs State Of Kerala & Anr

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. OF 2009 (Arising out of SLP(Crl) No. 7032 of 2007)

TOMY & ANR. ... Appellant(s)

Versus

STATE OF KERALA & ANR. ... Respondent(s)

JUDGMENT

Dr.ARIJIT PASAYAT,J.

Leave granted.

Challenge in this appeal is to the order passed by a learned Single Judge of

the Kerala High Court allowing the revision petition filed by the de-facto

complainant who was allegedly assaulted by the present appellant resulting in

grievous injuries including fracture. According to the complainant the incident took

place on 19.1.1997 about 4.00 P.M. The trial court on consideration of the evidence

directed acquittal. It is to be noted that the accused persons faced trial for alleged

commission of offences punishable under Sections 447, 324, 326 and 506(ii) read with

section 34 of the Indian Penal Code, 1860 (in short 'Code'). The trial court analysed

the evidence of the alleged victims PW1 and PW5. The stand of the prosecution

-2- before the trial court was that the evidence of PW5 could be used to corroborate the

evidence of PW1 and merely because the Doctor has opined that the injured could

have sustained injuries by falling from height did not establish the defence version.

The prosecution witness admitted that PW1 sustained injuries due to fall

from a kuthukallu. This was deposed by DW-1, the person, who carried the injured

to the hospital immediately after the occurrence. It was his evidence that the injured

while traveling in his car stated that he had sustained injuries due to the aforesaid

fall. In any event, after analyzing the evidence, the trial court found that the

prosecution has not been able to establish the accusations. Several factors apart from

the aforesaid fact relating to the cause of injury were also noted. The de-fato

complainant filed a revision petition before the High Court questioning the acquittal.

Before the High Court the revision petitioners submitted that the findings of the trial

court that prosecution has got two different versions and there is no proper

justification for not accepting the version as to why PW1 was not taken to the

government hospital amounts to absurdity. The High Court felt that the conclusion

amounted to absurdity without even indicating any detailed reason as to why the

High Court felt that the

-3-

matter was to be re-heard. The High Court exercised the revisional jurisdiction and

directed the matter to be heard afresh by setting aside the findings of the courts

below acquitting the accused persons.

The learned counsel for the appellant submitted that the course adopted

by the High Court is not permissible in law. The High Court has not indicated any

reason as to why it considered the conclusions of the trial court to be erroneous by picking up one or two sentences from the conclusions. The High Court could not

have come to the a conclusion about need for reconsideration. Learned counsel for

the State submitted that the State had a very limited role to play in the revision

petition filed by the de-facto complainant. None appears for the de-facto

complainant respondent No. 2 inspite of service of notice.

We find that the trial court had rightly dealt with the evidence and found

the same to be not worthy of credence. Without indicating any plausible reason to

set aside the order of the Trial Court, the High Court has remitted the matter back

to the court below. In these circumstances, the impugned order cannot be sustained

and it is accordingly set aside. The appeal is allowed.

...................J. (Dr. ARIJIT PASAYAT)

....................J. ((ASOK KUMAR GANGULY)

New Delhi, April 20, 2009.