[2009] 6 S.C.R. 10
A
STATE OF KERALA
v.
SURESH @ SUBHASH & ORS.
(Criminal Appeal No. 1207 of 2004)
B
APRIL 1, 2009
[DR. ARIJIT PASAYAT, D.K JAIN AND DR.
MUKUNDAKAM SHARMA, JJ.]
•
Penal Code, 1860- ss. 143, 147, 148, 109, 449 and 302
c r/w s. 149 - Prosecution - Acquittal by courts below on the
grounds of unexplained delay relating to FIR reaching the
Magistrate and doubt regarding authenticity of the report given
by PW 1 - On appeal, held : Order of acquittal was passed
after proper and detailed analysis of the evidence to find that
D prosecution version was not cogent and credible - Order of
acquittal confirmed.
•
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1207 of 2004.
E
From the Judgement & Order dated 20.01.2004 of the High
Court of Kerala at Ernakulam in Crl. A. No. 55912002. B.
M.T. George, for the Appellant.
"'
F
Nishe Rajen Shonker, Vinod P.V., K.P. Sajith, Jayanth
Muthuraj and Sajith P. Warrier for the Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the
G parties.
..
2. The Kerala High Court by the impugned order dismissed
the appeal filed by the State questioning acquittal of five
accused persons who faced trial in the Court of Additional
H
Sessions Judge, Pathanamthitta. The trial court acquitted them
10
STATE OF KERALA v. SURESH @ SUBHASH &
11
ORS. [DR. ARIJIT PASAYAT, J.]
of the charges relatable to Sections 143, 147, 148, 109, 449
A
and 302 read with Section 149 of the Indian Penal Code, 1860
(in short 'IPC').
The basic reason which weighed with the trial court to
direct acquittal was the unexplained delay relating to the FIR
8
reaching the concerned Magistrate. Added to that the
authenticity of the report given by PWI was doubtful. The High
Court found that the evidence of PWI was not believable. There
was doubt about the authenticity of Ex. P1 and the unexplained
delay in FIR reaching the Magistrate Court. Because of the
aforesaid factors the High Court found that there was no scope
C
for any interference. Learned counsel for the appellant
submitted that PWI was an injured witness and merely because
the investigation was not done in proper manner, the acquittal
should not have been directed. Learned counsel for the
respondent supported the judgment.
D
We find that both the trial court and the High Court have
analysed the evidence in great detail to find the prosecution
version to be not cogent and credible. According to PWI she
gave Ext. P1 FIR before ASI PW17 at 2.30 AM. on 6.9.1996.
E
According to PW17 he recorded at 3.00 AM. on 6.9.1996. But
Ext. P1 reached the llage Magistrate at 10.30 AM. on 7.9.1996.
The Investigating Officer has not explained the delay. Further
the trial court found if impossible physically for giving a lengthy
report (Ext. P1) while in Intensive Care Unit. The occurence is
F
stated to have taken place on 5.9.1996 at 8.15 P.M. According
to PW5, he examined the injured and deceased at 9.30 P.M.
If that be so, it has not been explained as to how the FIR came
to be lodged at 2.30 A.M. on 6.9.1996. That being so, We find
no scope for interference in this appeal which is accordingly
G
dismissed.
KKT.
Appeal dismissed.
Lex