REPORTABLE

       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)

J U D G M E N T

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

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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

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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.