IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 114 of 2001 ----------------------------- ( CRIME NO. 797 OF 1996 OF PATHANAMTHITTA POLICE STATION. CC.214/1997 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA ) REVISION. PETITIONER/P.W.1: ------------------------------ SHYAMALA KUMARI, W/O. T.K. SASI, SAI SADANAM, (THADATHILVEETTIL), ELANTHOOR EAST, ELANTHOOR P.0., PATHANAMTHITTA. BY ADV. SRI.S.MUHAMMED HANEEF RESPONDENTS/STATE AND ACCUSED NOS. 1 TO 3 & 5 TO 7: --------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE STATE PROSECUTOR, HIGH COURT OF KERALA. 2. MATHAIKUTTY, S/O. GEORGE, KUNNATHETHU HOUSE, ELANTHOOR- KIZHAKKUM MURY, ELANTHOOR VILLAGE. 3. KOMALAN, S/O. KUNJUPILLAI, THEKKEMURIYIL HOUSE, EDAPARIYARAM MURY, ELANTHOOR VILLAGE. 4. VARGHESE, S/O. MATHAI VARGHESE, NELLIKUNNATHU HOUSE, ELANTHOOR KIZHAKKUM MURY, ELANTHOOR VILLAGE. 5. RAMACHANDRAN, S/O. VELUTHAKUNJU, RAMANCHIRA HOUSE, ELANTHOOR KIZHAKKUM MURY, ELANTHOOR VILLAGE. Crl.Rev.Pet.No. 114 of 2001 6. ABRAHAM UMMEN, S/O. ABRAHAM, CHAMAKKALAYIL HOUSE, ELANTHOOR KIZHAKKUM MURY, ELANTHOOR VILLAGE. 7. SULOCHANAN, S/O. RAMAN, VALUZHATHIL HOUSE, EDAPARIYARAM MURY, ELANTHOOR VILLAGE. R1 BY PUBLIC PROSECUTOR ADV. SMT. M.K. PUSHPALATHA. R2 TO R7 BY ADV. SRI.M.R.GOPALAKRISHNAN NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No. 114 of 2001 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 3rd day of December, 2008 O R D E R -------------- De facto complainant in C.C. No.214 of 1997 of the Court of Chief Judicial Magistrate, Pathanamthitta challenges acquittal of respondents 2 to 7 (accused Nos.1 to 3 and 5 to 7) under Section 248 (1) of the Code of Criminal Procedure (for short, “the Cr.P.C.”) as irregular, illegal and perverse. 2. Heard both sides. 3. Respondents 2 to 7 along with 4th accused (he was not available for trial) were charge-sheeted by Circle Inspector of Police Pathanamthitta in Crime No.97 of 1996 for offences punishable under Sections 143, 147, 148, 427, 447 and 506(2) read with 149 of the Indian Penal Code (for short, “the Code”) on the allegation that on 26.11.1996 at about 11.15 p.m. they formed an unlawful assembly, committed rioting armed with deadly weapons and in prosecution of the common object trespassed into the property of P.W.1 in Sy.No.344/7-1 of Elathoor Village, committed mischief by cutting down a few cashew-nut trees, jack-fruit tree and other crops and criminally intimidated P.Ws.1 and 2, de facto complainant and her husband. Prosecution examined P.Ws.1 to 5 and proved Exhibit P1. Of them, CRL. R.P. No.114 of 2001 -: 2 :- witnesses to the alleged incident are P.Ws.1, 2 and 4. Investigating officer was not examined. Learned Chief Judicial Magistrate disbelieved P.W.4, held that evidence of P.Ws.1 and 2 is not sufficient to find respondents 2 to 7 guilty and acquitted them. It is contended by learned counsel for revision petitioner that court below has not properly appreciated the evidence of P.Ws.1, 2 and 4. Counsel for respondents 2 to 7 supported the impugned judgment. 4. So far as incident proper is concerned, though P.W.3 stated that she owns property adjacent to the property of P.Ws.1 and 2 and that in her property also there was trespass and commission of waste allegedly for cutting open a new way, she admitted that she had not witnessed the incident. What remains is evidence of P.Ws.1, 2 and 4. So far as P.W.4 is concerned, it has come out in evidence that he had contested the election to the Panchayat against the second accused and failed. According to respondents 2 to 7, P.W.4 was enimcal to them on that count and gave false evidence. Whatever that be, it is the version of P.W.4 that he had been to the house of his brother, Ponnan situated near place of occurrence, was in that house at the relevant time and witnessed the incident. But for his presence at the house of Ponnan, P.W.4 could not have witnessed the CRL. R.P. No.114 of 2001 -: 3 :- incident. But P.W.4 had not stated so to the Investigating officer at the time of investigation. It is in the above circumstance that learned Chief Judicial Magistrate thought it not safe to place reliance on the evidence of P.W.4. So far as P.Ws.1 and 2 are concerned, it is true that they gave evidence in support of the prosecution. According to them there were other persons also apart from respondents 2 to 7 and 4th accused, but P.Ws.1 and 2 were not able to identify them. According to P.Ws.1 and 2, they identified the culprits in the light of torch carried by P.W.2 and burning petrolmax used by the culprits. It has come out in evidence that neither P.W.1 nor P.W.2 told the Investigating Officer in the course of investigation that they witnessed the incident in the light of torch or petrolmax. Learned Chief Judicial Magistrate found that omission to be material. Learned Chief Judicial Magistrate has also referred to the evidence of P.Ws.1 and 2 extensively, found material contradictions in their evidence and held that their evidence is not reliable. 5. So far as the exercise of revisional jurisdiction against a judgment of acquittal is concerned, binding authorities say that revisional court cannot interfere with a judgment of acquittal merely for the reason that a different view is possible. Interference with CRL. R.P. No.114 of 2001 -: 4 :- acquittal is called for only when the decision of the trial court involved glaring injustice due to violation of any fundamental principles of law, defect of procedure or error of law had resulted in gross miscarriage of justice or when the judgment is palpably wrong or perverse and the reasonings are unsustainable. Though revisional court is entitled to re-appreciate the evidence for the limited purpose of satisfying itself regarding illegality, irregularity or impropriety of the judgment under challenge, it cannot sit in judgment over the findings of the trial court as if in an appeal. Revisional court must also bear in mind that the presumption of innocence against the accused stands reinforced by their acquittal by the trial court. On going through the judgment under challenge, I am not persuaded to think that findings of the learned Chief Judicial Magistrate are palpably wrong requiring interference. As such request for interference cannot be accepted. Revision petition fails. It is dismissed. THOMAS P.JOSEPH, JUDGE. vsv CRL. R.P. No.114 of 2001 -: 5 :- THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.114 OF 2001 =================== O R D E R 3RD DECEMBER, 2008