IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Crl.Rev.Pet.No. 143 of 2001() ----------------------------- CC.424/1997 of JUDL.MAGISTRATE OF FIRST CLASS, PALAI. .................... REVN.PETITIONER/DEFACTO COMPLAINANT: -------------------- GEORGE THOMAS, ELANJIKUZHIYIL HOUSE, MANNAKKANADU KARA, KURICHITHANAM VILLAGE, PALAI. BY ADV. SRI.T.R.RAMACHANDRAN NAIR RESPONDENTS/ACCUSED/COMPLAINANTS & STATE: ---------------- 1. SIBY, S/O. THOMAS, CHAKKALAYIL VEEDU, MANNAKKANADU KARA, KURICHITHANAM VILLAGE, PALAI. 2. JOLLY, S/O. DO OF DO DO 3. THOMAS, S/O. DO OF DO DO 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. BY PUBLIC PROSECUTOR SRI. AMJAT ALI FOR R4. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.143 OF 2001 ------------------------------------------ Dated this the 16th day of September, 2008 O R D E R The defacto complainant, who was examined as PW1 in C.C.424 of 1997 on the file of Judicial First Class Magistrate, Palai, is the revision petitioner. Respondents 1 to 3 are the accused. The charge against them was that in furtherance of their common intention on 24.12.1996 at 9.30 p.m. they trespassed into the house No.87 of ward No.III of Marangattupilly Panchayat owned and occupied by petitioner and his family and first respondent caught hold of the neck of the petitioner and wrongfully restrained him and inflicted a cut injury on his right shoulder with a sword and respondents 1 and 3 beat him with their hands and caused injuries and thereby committed offence under Sections 452, 341, 324 and 323 read with Section 34 of Indian Penal Code. The accused pleaded not guilty. Prosecution examined petitioner as PW1 and an eye witness as PW2 and witness to Ext.P4 scene mahazar as PW4. The Head Constable who recorded first information statement of CRRP 143/01 2 PW1 was examined as PW3. The doctor who examined PW1 and prepared Ext.P5 wound certificate was examined as PW6 and the investigating officer as PW5. The accused at the time of questioning under Section 313 of Cr.P.C. contended that it was PW1 who was the assailant and there is a pathway through the property of PW1 and the accused were attacked by PW1 and they sustained injuries and they were examined by DWs 1 and 4, the doctors who prepared Ext.D2 wound certificate and D3 case sheet, and PW1 is charge sheeted in C.C.426 of 1997 in respect of the said incident and they are to be acquitted. 2. Learned Magistrate on the evidence found that PW2 the eye witness cannot be believed as according to PW1 the eye witness reached there only after he cried and PW1 cried only after stab injury was inflicted by the second respondent and if that be so PW2 could not have seen the entire incident as deposed by him. Learned Magistrate also found that PW2 is not the immediate neighbour of PW1 and there are several houses in between the two houses and evidence of PW2 cannot be believed. Learned Magistrate also found that though accused are known persons, PW1 did not name them to PW6 as their names are not seen in Ext.P5 wound certificate prepared by CRRP 143/01 3 PW6 the doctor and the case of PW1 that he had named the assailants to PW6 cannot be believed. The learned Magistrate also found that the evidence of DW1 and DW4 are corroborated by Ext.D2 and D3 wound certificates and case sheet establish that they also sustained injuries on the same day and if the version of PW1 is believed, they did not sustain any injury and therefore evidence of PW1 cannot be believed. The learned Magistrate found that prosecution did not establish the offence alleged against the accused and acquitted them under Section 248(1) of Code of Criminal Procedure. This revision petition is filed challenging the order of acquittal under Section 397 read with Section 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner and the learned public prosecutor were heard. 4. Advocate Mr. J.B. Paul submitted that though the petitioner was informed the necessity to engage a counsel consequent to elevation of the law counsel who was originally appearing, no instructions were given. Being a criminal revision, as it cannot be dismissed for default, the revision is disposed on merits after going through the judgments of the courts below and records of the trial Court. CRRP 143/01 4 5. The learned Magistrate disbelieved the case of the prosecution on several grounds. Though PW1 deposed that he had given the names of the assailants to the doctor who examined him and prepared Ext.P5 wound certificate, Ext.P5 does not show the names of the assailants. So also, evidence of PW6 the doctor, who prepared Ext.P5 wound certificate does not show that names of the assailants were disclosed to the doctor. What was disclosed to the doctor as seen from Ext.P5 was that he was attacked by three persons with sword sticks at his house at Mannakkanatt. Admittedly the accused are the immediate neighbours of PW1. If the incident is as spoken to by PW1, he would have definitely named the accused to the doctor and if it was disclosed as claimed by PW1, PW6 would have recorded the names in Ext.P5 wound certificate. Learned Magistrate also found that as per the evidence of PWs 1 to 3, accused did not sustain any injury whatsoever. Evidence of DW1 the doctor with Ext.D2 wound certificate and D3 case sheet establish that they sustained injuries and they were examined by the doctor on the same day. In such circumstances, learned Magistrate found that evidence of PW1 to 3 cannot be relied on. That finding is not a perverse view of appreciation of evidence. So also, learned CRRP 143/01 5 Magistrate found that there is contradiction in the evidence of PWs 1 to 3. It is on all these grounds learned Magistrate found the accused not guilty and acquitted them under Section 248(1) of Code of Criminal Procedure. Though exercising the power provided under Section 397 and 401 of Code of Criminal Procedure, an order of acquittal can be interfered, exercise of the power is warranted only to correct miscarriage of justice arising from conception of law, irregularity of procedure or apparent harshness of treatment. I do not find any glaring defect in the procedure or any manifest illegality on a point of law or flagrant miscarriage of justice warranting interference in exercise of revisional powers. Revision is therefore dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/- CRRP 143/01 6 ============================= M.SASIDHARAN NAMBIAR, J. ORDER C.R.R.P.No.143 OF 2001 16th September, 2008. ====================