IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Crl.Rev.Pet.No. 80 of 2000() ---------------------------- CC.77/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... REVN. PETITIONER(S): PW1 --------------------- ABOOBACKER, W/O ABDUL KADAR MANHAMPRA HOUSE KUNTAR P.O. KASARAGOD DISTRICT BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.B.S.SWATHY KUMAR RESPONDENT(S): STATE & ACCUSED 1 TO 5 --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 2. A.M.HASSAN MUSLIYAR, 47/ 1995, S/O ABDULLA VAIDIAR, MANHAMPARA, ADOOR VILLAGE 3. UMBICHI THANGAL, S/O SEYD ABOOBACKER THANGAL 27/1995 ADOOR VILLAGE 4. SEYD UMMER FAROOQ, S/O SEYD ABOOBACKER THANGAL 18/95, MOOLA HOUSE, ADOOR VILLAGE 5. M.K.ABDULLA KUNHI, S/O KUNHAPPA 18/95, MOOLA HOUSE, ADOOR VILLAGE 6. M.E.BADISHA, S/O P.IBRAHIM, 18/95 MOOLA HOUSE, ADOOR VILLAGE PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED SRI.GRASHIOUS KURIAKOSE FOR R2,4,5 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/10/2009 THE COURT ON 28/01/2010 PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.80 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2010 ORDER This is a revision filed by the defacto complainant challenging the judgment of Judicial First Class Magistrate I, Kasargod in C.C.No.77/1996 dated September 30, 1999 acquitting the accused 1 to 5/respondents 2 to 6 finding them not guilty of the offences punishable under Sections 143, 147, 148, 323, 324, 427 read with Section 149 of IPC. 2. The case of the prosecution as shaped in evidence before the trial court was that on April 21, 1995 at about 2.30 p.m. while PW1, the defacto complainant, was returning from Mosque and reached hear his house, accused persons formed themselves into an unlawful assembly with the common object of assaulting PW1, pelted stones at him and fisted him causing injuries to him, that when PW1 fled to his house, accused persons pelted stones to his house causing damages and causing injuries to PW2, the mother of PW1 and therefore they have committed the offences punishable under Sections 143, 147, 148, 323, Crl.R.P.No.80/00 Page numbers 324, 427 read with Section 149 of IPC. 3. When accused 1 to 5 appeared before the lower court, they pleaded not guilty to a charge under Sections 143, 147, 148, 323, 324, 427 read with Section 149 of IPC. PWs 1 to 8 were examined and Exts.P1 to P3 and MO1 series and MO2 series were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C., the first accused would say that there is a counter case as C.C.No.373/1995 in which the allegation was that it was PW1 who assaulted him and to escape from that case PW1 has foisted this false case against the accused persons. The other accused persons denied having any connection with this incident. On the side of the accused persons, Ext.D1 was marked. 4. The learned Magistrate on an appreciation of evidence found that the prosecution has failed to prove the charges levelled against the accused persons , found them not guilty and acquitted them under Section 248(1) Cr.P.C. PW1, the defacto complainant, has challenged the said judgment of the trial court in this revision. 5. Heard the learned counsel for the petitioner and the learned Crl.R.P.No.80/00 Page numbers Government Pleader. Respondent 2 to 6 who are accused 1 to 5 before the trial court remained absent. 6. The only point which arise for consideration is whether the judgment of the trial court finding the accused persons not guilty and acquitting them can be sustained ? 7. PWs 1 to 8 were examined and Exts.P1 to P7 and MO1 series and MO2 series were marked on the side of the prosecution before the trial court. PW1 is the defacto complainant. PW2 is an alleged eye witness who turned hostile and did not support the prosecution. PW3 is the brother of PW1 who is also an alleged eye witness to the incident. PW4 is an attestor to the scene mahazar Ext.P2. PW5 is the Medical Officer who treated PW1 and issued Ext.P3, the wound certificate. PW6 is another attestor to the scene mahazar Ext.P2. PW7 is the S.I. of Police , Andhur police station who laid the charge in this case. PW8 is the Medical Officer, Fathima Hospital, Kasargod and he was examined to prove the wound certificate issued in respect of CW2, the mother of PW1. 8. PW1 when examined gave a different version from Ext.P1. Crl.R.P.No.80/00 Page numbers His version in Ext.P1 was that all the accused assaulted him. But when examined, he would say that only first accused assaulted him. He would say that accused persons pelted stones at his house and about 30 tiles were broken. But in Ext.P4 scene mahazar, no such broken tiles were noted. That part Ext.D1 is the copy of the intimation issued by PW5, the doctor, to the police after treating PW1. In that PW1 has given the name of first accused and another person. That part PW2, the alleged eye witness to the incident turned hostile and did not support the prosecution. PW3 is the brother of PW1 . But he would say that all the accused persons assaulted PW1 which is against the version of PW1. He is also an accused in the counter case. 9. For all these reasons, I hold that the trial court is perfectly justified in disbelieving the evidence of PWs 1 and 3 regarding the incident and finding that it was to escape from the counter case pending against PW1 and PW3, they have foisted this case against the accused persons. I find no reason to interfere with the finding of the trial court that the accused persons are not guilty of the charges levelled against them and acquitting them. Crl.R.P.No.80/00 Page numbers In the result, I find no merit in the revision petition and the same is hereby dismissed. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.80/00 Page numbers Crl.R.P.No.80/00 Page numbers