TOMY AND ANR. versus STATE OF KERALA AND ANR.

Citation: [2009] 8 S.C.R. 39 · Decided: 20-04-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[20091 8 S.C.R. 39 
TOMY AND ANR. 
A 
v. 
STATE OF KERALA AND ANR. 
(Criminal Appeal No. 788 of 2009) 
APRIL 20, 2009 
B 
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANGULY, JJ.] 
Practice and procedure: Criminal case - Acquittal by trial 
court - High Court set aside order of trial court and remitted c 
matter to it for fresh hearing - ProprietY of - On facts, held: 
Not proper - Order of High Court was without indicating 
plausible reasons. 
"'( 
Prosecution case was that the appellant assaulted 
D 
the complainant causing grievous injuries. The trial court 
on consideration of evidence directed acquittal giving 
finding that there were two different prosecution versions 
and there was no proper justification for not accepting 
the version as to why victim was not taken to the 
E 
government hospital. The High Court directed the matter 
to be heard afresh by setting aside the order of the trial 
court. Hence the appeal. 
Allowing the appeal, the Court 
F 
HELD: The trial court 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 remitted the matter back to 
the court below. In these circumstances, the impugned 
G 
order cannot be sustained and it is accordingly set aside. 
[Para 5] [41-F-G] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 788 of 2009. 
39 
H 
40 
SUPREME COURT REPORTS 
[2009] 8 S.C.R. 
A 
From the Judgment & Order dated 26.09.2007 of the High 
Court of Kerala at Ernakulam in Crl. Rev. Petition No. 535 of 
2000. 
C.N. Sree Kumar, P.P. Nayak and Dushyant Parashar for 
B the Appellant. 
_ P.V. Dinesh for the Respondents. 
The Judgment of the Court was delivered by 
c 
DR. ARIJIT PASAYAT, J. 1. Leave granted. 
2. 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 
D ingrievous 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 
E 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 
11'=
of the prosecution before the trial court was that the evidence 
I· 
of PW5 could be used to corroborate the evidence of PW1 and 
..,.. 
F merely because the Doctor has opined that the injured could 
have sustained injuries by falling from height did not establish 
the defence version. 
2. The prosecution witness admitted that PW1 sustained 
G 
injuries due to fall from a kuthukallu. This was deposed by OW-
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 
H 
-, 
TOMY AND ANR. v. STATE OF KERALA AND ANR. 
41 
[DR. ARIJIT PASAYAT, J.] 
been able to establish the accusations. Several factors apart A 
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 B 
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 matter was to be re-heard. The High c 
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. 
3. The learned counsel for the appellant submitted that the 
course adopted by the High Court is not permissible in law. The D 
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 f
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