IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 Crl.Rev.Pet.No. 1612 of 2002() ------------------------------ CRA NO.382/1998 OF ADDL. SESSIONS JUDGE (ADHOC I), THALASSERY CC NO.948/1995 OF JUDICIAL FIRST CLASS MAGISTRATE, THALASSERY REVISION PETITIONERS: ACCUSED NO.2 & 3 ------------------------------------- 1. VAYALOMBRAM NANU, S/O. KUNHIRAMAN, KOTTAYAM AAMSOM, ERUVATTY, POOLA BAZAR, KANNUR DISTRICT. 2. CHOOLAVIL PADIKALATTI PREMAN, S/O. KUNHIRAMAN, KOTTAYAM AAMSOM, ERUVATTY, POOLA BAZAR, KANNUR DISTRICT. BY ADV. SRI.P.V.SURENDRANATH RESPONDENT/RESPONDENT/STATE: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.1612 of 2002 -------------------------------------- Dated this the 3rd day of October, 2008. ORDER Revision petitioners along with first accused faced trial for offences punishable under Sections 341, 323 and 324 read with Section 34 of the Indian Penal Code (hereinafter referred as 'the Code') on the charge that on 27.9.1995 at about 7.30 p.m. on the varandha of the shop, revision petitioners along with first accused in furtherance of their common intention wrongfully restrained PW1 and voluntarily caused hurt to him and PW2 beating with cycle chain and stick. Since first accused was not available for trial case against him was split up. Revision petitioners were found guilty, convicted and sentenced to undergo imprisonment for various periods. Appeal preferred by them was dismissed. 2. Heard. 3. Learned counsel for revision petitioners submitted that first accused was later tried in C.C.No.491 of 2001 and acquitted of all the charges. According to learned counsel, conviction of revision petitioners for offence punishable under Section 324 read with Section 34 of the Code has therefore to fail. According to the prosecution it was first accused who allegedly caused hurt to PW1 with cycle chain. It is also submitted that version of PW1 about revision petitioners wrongfully restraining him is an improvement from Ext.P1, First Information Crl.R.P.No.1612/2002 2 Statement. Version of PWs 1 to 3 that revision petitioners caused hurt to PWs 1 and 2 beating with hands in unbelievable, it is argued. 4. First Information (Ext.P1) regarding the alleged incident was given by PW1. In that statement he stated that while he was sitting in the varandha of the shop, certain persons came there and the first accused assaulted him with cycle chain while revision petitioners beat him with hands and stick. In evidence, PW1 stated that revision petitioners pulled him down into the road, first accused beat him with stick and cycle chain and that revision petitioner No.2 beat him with hands. PW2 stated that he was sitting in the shop of his elder brother when revision petitioners pulled down PW1 into the road, revision petitioners tied the hands of PW1 at the back and the first accused beat him with cycle chain. Further case is that revision petitioners fisted PW1 on the back. PW3 also claimed to have seen the incident. PW4 examined PWs 1 and 2 and issued Exts.P2 and P3, respectively. PW1 had complaint of pain on neck and back. PW2 suffered abrasions. PW9 conducted the investigation. 5. As pointed out by the learned counsel, it is seen from Ext.P1 that PW1 did not have a case then either that the incident occurred on the road or that the revision petitioners had restrained him. In fact, PW9 also stated that place of occurrence as per the mahazar is the varandha of the shop. As against that, PWs 1 to 3 stated that revision petitioners pulled PW1 into the road and the incident occurred on the road. According to PW3, the place of occurrence is 50 Crl.R.P.No.1612/2002 3 meters away from the shop. 6. Going by Exts.P2 and P3, first version of PWs 1 and 2 to PW4 is that they were attacked by a mob of about 30 persons. True, they also stated about revision petitioners and A1 by their names. In evidence PW1 stated that apart from revision petitioners and A1, ten others were also in the mob. PW3 stated that there was total darkness at the place of occurrence at the relevant time and hence he could not identify any of the assailants. According to PWs 1 and 2, there was light at the place of occurrence from the nearby shop. Regarding the alleged weapon which is said to be used by the assailants, there is material discrepancy. In Ext.P1, PW1 stated that first accused assaulted him with cycle chain and that revision petitioners assaulted him with hand and stick. In evidence, there is no case for PWs 1 to 3 that any of the revision petitioners had used stick. There is no reference in Ext.P1 to the first accused using stick but in evidence PWs 1 to 3 stated so. It is pointed out by learned counsel that first accused himself was acquitted of all the charges in C.C.No.491 of 2001. Evidence against revision petitioners given by PWs 1 to 3 is not convincing and contradicts their earlier statement. As such, conviction based on the evidence of PWs 1 to 3 cannot be sustained. Resultantly, Revision Petition is allowed. Conviction and sentence imposed on revision petitioners are set aside. They are acquitted of the charges made against them. Bail bonds are cancelled. Crl.R.P.No.1612/2002 4 Crl.M.P.No.8776 of 2002 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.1612/2002 5 Thomas P.Joseph, J. Crl.R.P.No.1612 of 2002 ORDER 3rd October, 2008