TOMY AND ANR.versusSTATE OF KERALA AND ANR.

                           [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
    the Appellant.
B
         _P.V. Dinesh for the Respondents.

          The Judgment of the Court was delivered by

          DR. ARIJIT PASAYAT, J. 1. Leave granted.
c
        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
  injuries due to fall from a kuthukallu. This was deposed by OW-
G 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.
                [DR. ARIJIT PASAYAT, J.]
                                                                41


     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 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 E
     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 F
     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 G
     is allowed.                                                  ·

     D.G.                                         Appeal allowed.