IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 CRL.A.No. 1325 of 2004() ------------------------ AGAINST THE JUDGEMENT IN CRLP.508/2004 Dated 09/08/2004 ST.1672/2002 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... APPELLANT/COMPLAINANT. -------------------------- E.I.JOHN @ JOHNY, S/O.ITTY AVIRA, EDATTU VEEDU, KALATHUKADAVU P.O,. THALAPPALAM KARA, MOONILAVU VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS/ RESPONDENTS. --------------------------- 1. P.G.RAJU, PCK 5323, ERATTUPETTA POLICE STATION, ERATTUPETTA. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. --------------------------------- Crl.A.No. 1325 OF 2004 ---------------------------------- Dated this the 11th day of November, 2011 J U D G M E N T ~~~~~~~ Appellant is the complainant in S.T.No.1672/2002 on the file of the Judicial Magistrate of the 1st Class, Erattupetta. He prosecuted the 1st respondent alleging offence under Section 323 and 341 IPC. In his complaint, it was alleged that the 1st respondent, who was a Police Constable, took him to the Police Station at 1.p.m. on 11.1.2002 and wrongfully restrained and assaulted him with hands and 'lathi'. 2. After taking cognizance, the learned Magistrate issued process to the respondent, who entered appearance in response to the process. Since he pleaded not guilty, he was sent for trial. The appellant was examined as PW1 and another witness was examined as PW2. Ext.P1, Medical Certificate was also marked. The 1st respondent took a defence that on the alleged date, he was on duty at Valiyamangalam bhagam from 8 a.m. to 7 p.m and that the appellant who is the 11th accused in Crime No.13/2002 falsely prosecuted the 1st respondent. On Crl.A.No.1325/2004 2 behalf of the 1st respondent, two witnesses were examined as DWs 1 and 2. Exts.D1 to D6 were marked. The learned Magistrate, on appraisal of the evidence, arrived at a conclusion that evidence of PWs 1 and 2 is not convincing. Consequently, the 1st respondent was acquitted under Section 255(1) of the Code of Criminal Procedure by the judgment impugned dated 8.6.2004. Now this appeal. 3. Heard the learned counsel appearing for the respondent. Perused the judgment and evidence on record. PWs 1 and 2 had given evidence in support of the complaint. Ext.D1, the final report in Crime No.13/2002, supported by the materials disclosed in cross examination of PW1 would show that the appellant is the 11th accused in C.C.530/2002 before the trial court. As per Ext.D1, the appellant, along with 25 others was prosecuted by the Station House Officer, Erattupetta Police Station alleging offence under Section 143, 147, 148, 332, 353 and 324 read with 149 IPC. The allegation in Ext.D1 final report would show that the appellant and 25 others formed into an unlawful assembly at 1.p.m. on 11.1.2002 and being members of Crl.A.No.1325/2004 3 the unlawful assembly they were armed with deadly weapons like stick, stone, hatchet, axe etc. and attacked police personnel who were on duty at a nearby estate. The learned Magistrate disbelieved PWs 1 and 2 in the light of Ext.D1. Having carefully gone through the evidence on record, I find that the conclusion arrived by the learned Magistrate is probable. At the alleged time the appellant was in custody as accused in Crime No.13/2002 as evidenced by Ext.D5 General diary entry. Therefore, the question of wrongful restraint does not arise. Of course there is possibility for assault. At the same time, false implication cannot be ruled out. Therefore, it cannot be said that the trial court erred in disbelieving PWs 1 and 2. It appears that the case on hand is a counter case to bring up a defence in C.C.No.530/2002. In the above circumstance, I find no merit in the appeal. In the result, the appeal is dismissed. (P.S.GOPINATHAN, JUDGE) ps/15/11