IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 Crl.Rev.Pet.No. 558 of 2004() ----------------------------- CRA.98/1997 of SESSIONS COURT, TRIVANDRUM CC.213/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... REVISION PETITIONER/APPELLANT: --------------------------------------- D.JOSE, S/O.DAVEED, MANOORPATTAM, THALAKKAL PALLIVILA, PUTHENVEEDU, VELLARADA VILLAGE. BY ADV. SRI.G.SUDHEER RESPONDENT/COMPLAINANT: -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRRI.PUZHAKKARA MOHAMMED. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = Crl.R.P.558 of 2004-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11st day of January, 2008. O R D E R 1.The revision petitioner was charge-sheeted for an offence punishable under Section 324 IPC on the allegation that P.W.1 questioned the accused regarding the alleged assault or teasing of one Bindu, the daughter of P.W.5. It was alleged that infuriated by such questioning, the accused stabbed P.Ws.1 to 3 with a double-edged weapon. The learned Judicial Magistrate of the First Class, after hearing the evidence of P.Ws.1 to 8 and the evidence of D.W.1, convicted the accused and sentenced him to undergo rigorous imprisonment for one year with a direction to pay compensation of Rs.2,000/- to P.W.2. Such conviction and sentence has been confirmed by the Court of Session in the appeal. CRRP558/04 -: 2 :- 2.The learned counsel for the revision petitioner, accused argued that the case in hand is one where there is total lack of legal evidence to sustain the order of conviction and the prosecution version, in the light of the materials on record, is wholly artificial and cannot be a ground to sustain the conviction and sentence. 3.P.W.5, going by the evidence, is in no way connected to P.Ws.1 to 3. The allegation against the accused is that at about 9.30 p.m. on 16-1- 1994, P.W.1 questioned the accused regarding certain advances made by him to the person of one Bindu, who is stated to be the daughter of P.W.5. The said Bindu is not examined. Quite contrary to the first information statement Ext.P1, P.W.1 deposed before Court that while he was watching T.V. in the house of one Chandran, he was informed that the accused attempted to rape Bindu and she escaped from his clutches and went to her grandmother and both of them came to the house CRRP558/04 -: 3 :- where her father and mother were watching T.V. and informed them about it. According to P.W.1, he reached that place and was informed about the same. P.W.1 deposed that the accused came at that point of time and P.W.1 asked him about the incident and thereupon the accused stabbed P.W.1. P.Ws.2 and 3 were also injured by the accused. P.W.4 was cited as an eye witness. The version given by P.Ws.1 to 3 regarding the weapon did not tally. However, that by itself would not matter much in support of the defence version of the accused of having availed his right to private defence. D.W.1, the doctor of the Taluk Hospital was examined to prove Ext.D1 wound certificate in relation to the accused, who suffered injuries. 4.The courts below brushed aside the defence version taking the view that Ext.D1 refers the incident as about 30 minutes prior to the transaction forming the foundation for the prosecution. Accordingly, it was concluded that Ext.D1 relates to a different transaction and CRRP558/04 -: 4 :- could not be tagged with the incident leading to the prosecution. It has to be immediately remembered that Ext.D1 has been issued from the Taluk Hospital, Neyyattinkara while P.Ws. 1 to 3 were taken to the Medical College Hospital in Trivandrum. 5.It is quite surprising to notice that neither Bindu nor her grandmother nor any other person who had direct knowledge about any attempt to molest Bindu has been examined. This assumes importance because P.W.1 has a case that there was an attempt to rape. It is not as if this Court reduces the worth of the testimony of P.W.1 to be of the veracity, but clear and cogent evidence regarding such a version ought to have come at least from P.W.5, her father, particularly when P.Ws.1 to 3 are not otherwise related either to P.W.5 or to his daughter Bindu. It has also to be remembered that the prosecution does not have a case that any allegation was made before the competent authorities in relation to CRRP558/04 -: 5 :- the assault allegedly committed by the accused on the person of Bindu. No case has been charge- sheeted on any such count. The wound on the person of the accused has been proved by Ext.D1 and the testimony of D.W.1. That injury, in the light of the testimony of D.W.1 corroborating Ext.D1, ought to have been explained by the prosecution. This is all the more so, because had the accused been visited with injury at a point of time as recorded in Ext.D1, it was quite improbable for him to have committed the imputed acts. 6.On the basis of the materials on record, I am satisfied that the conviction of the accused was wholly unavailable on the evidence and he was entitled to the benefit of doubt. The appreciation of the evidence by the courts below has not been in tune with the requirement of law and to that extent, the impugned order warrants interference under Section 397 of the Cr.P.C. CRRP558/04 -: 6 :- 7.In the result, this revision petition is allowed setting aside the conviction and sentence imposed by the courts below. Bail bonds stand cancelled. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/