2009(6 )  SCR 10 STATE OF KERALA

v. SURESH @ SUBHASH & ORS.

(Criminal Appeal No. 1207 of 2004) APRIL 1, 2009

[DR. ARIJIT PASAYAT, D.K JAIN AND DR. MUKUNDAKAM  SHARMA, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the 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  Sessions  Judge,  Pathanamthitta.  The trial  court  acquitted  them of  the  

charges relatable to Sections 143, 147, 148, 109, 449 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 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  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.

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 A.M. on 6.9.1996.  

According to PW17 he recorded at 3.00 A.M. on 6.9.1996. But Ext. P1 reached the  

Ilage  Magistrate  at  10.30  A.M.  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 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 dismissed.