IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.Rev.Pet.No. 676 of 2001() ----------------------------- CC.435/1997 of JUDL.MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR .................... REVN. PETITIONER(S)/ DE FACTO COMPLAINANT: --------------------- MANJESH KAMATH, S/O.V.G.KAMATH, JAYA MAHAL, THEVARCADU, VARAPPUZHA BY ADV. SRI.V.L.SHENOY RESPONDENT(S)/ACCUSED 1, 3 TO 6 AND COMPLAIANANT: --------------- 1. SHIJI, S.O.RAMESH, THARAKANTHARA VEEDU, THEVARKAD, VARAPPUZHA 2. SHAIJU, S.O.ALICE, THANNIKKAPARAMBIL, THEVARKAD, VARAPPUZHA 3. PRIYAN, S/O.RAJAN, AMMANATHUVEEDU, THEVARKAD, VARAPPUZHA 4. JEEMON, S/O.SASI, BHAGAVATHI PARAMBIL, THEVARKAD VARAPPUZHA 5. BAIJU, S/O.DEVASSY, NADAKKAPARAMBIL, THEVARKAD, VARAPPUZHA 6. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.K.VINOD CHANDRAN FOR R1TO4 SRI.V.N.SUNILKUMAR FOR R1TO4 R6 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.676 OF 2001 --------------------------------------------- Dated 18th May, 2010 O R D E R De facto complainant in C.C.435/1997 on the file of Judicial First Class Magistrate, North Paravur filed this revision challenging the order of acquittal of respondents 1 and 3 to 6. Prosecution case is that on 19/8/1996 at about 9.45 a.m petitioner who was examined as PW1 was going towards the bus shelter to catch the bus to reach his college and while so, the six accused persons along with some others who are identifiable by sight, formed themselves into an unlawful assembly with the common object of causing hurt to PW1 and PW2 his brother and pushed PW1 from the bus shelter. When he ran towards the Crrp 676/01 2 nearby house and reached there, accused followed him and pushed him to the ground and beat him and kicked him. It is alleged that first accused with a stone hit him on his head and voluntarily caused hurt and when PW2 reached there seeing the incident, he was also attacked. He was taken and thrown on the compound wall causing hurt. Accused thereby committed offences under Sections 143, 147, 148, 323, 324 and 427 read with Section 149 of Indian Penal Code. Second accused was absconding and therefore, case as against him was split up and re-filed as C.C.158/2001. The other accused pleaded not guilty. Prosecution examined six witnesses including PW6 the doctor and marked Exts.P1 to P6. Learned Magistrate on the evidence found that the evidence of Pws.1 and 2 cannot be believed in view of the glaring contradictions and there Crrp 676/01 3 is no conclusive evidence to prove that accused committed any of the offences. They were therefore, acquitted under Section 248(1) of Code of Criminal Procedure. 2. Revision petitioner would contend that learned Magistrate did not properly appreciate the evidence and acquitted the accused granting undue benefit of reasonable doubt. It is contended that evidence of PW1 is corroborated by the evidence of PW2 as well as the FI statement and Exts.P5 and P6 wound certificates and therefore, order of acquittal is illegal and is to be set aside. 3. Incident was on 19/8/1996. It was allegedly at about 9.45 a.m. Pws.1 and 2 were examined by PW6, the doctor between 11.55 a.m and 12.05 p.m on the same day and prepared Exts.P5 and P6 wound certificates. Alleged cause of injury recorded in Exts.P5 and P6 is Crrp 676/01 4 the same namely, Pws.1 and 2 were beaten near Shedpadi bus stop by 8 to 10 persons who are known by sight. There is no allegation raised at that time that either PW1 or PW2 were beaten or hit with any weapon much less, a granite stone as deposed by them from the box. Ext.P1 FI statement of PW1 was recorded on the same day at 2.45 p.m. Version of PW1 at that time was only that he was beaten and kicked by five to eight persons which included accused 1 and 2 and other identifiable persons. Even at that time PW1 had no case that first accused was armed with a stone. Though an explanation with regard to the injury on the head was offered to the effect that when PW1 was pushed down and kicked and beaten, with a stone in the hands of one of the culprits, PW1 sustained injury to the head. But he had no case that it was first accused who hit him on the head with a stone as Crrp 676/01 5 deposed later from the box. If the version in Ext.P1 is to be believed PW2 could not be present when PW1 sustained the injury. Version in Ext.P1 is that while he was going to the college and reached near the bus shelter, was attacked by a group of people comprising about eight persons which include accused 1 and 2 and finding PW1, they hit him with their hands and then PW1 ran to a nearby house behind bus stop. Evidence of PW1 shows that there is a compound wall to that house. According to the version in Ext.P1 as well as from the box, accused followed him to that house and after PW1 reached the house. He was caught hold of and pushed to the ground and was kicked and beaten. It is the case from the box that at that time first accused hit on his head with a stone. It is against the version in Ext.P1 as the case was only that a stone was in the hands Crrp 676/01 6 of one among the said persons. Whatever it be, according to the version in Ext.P1, PW2 reached there only after PW1 sustained the injury and was bleeding from his head. There is no case in Ext.P1 that thereafter he was beaten by anybody. On the other hand, version in Ext.P1 is that finding PW2 accused proceeded against him and he was pushed to the compound wall causing injury. If that is the true version, PW2 had no occasion to see how PW1 was attacked by the others as deposed by PW2. If that version is true, PW2 could not have even reached that house from where PW1 allegedly sustained injury. If there is a compound wall separating the road and from where PW1 was attacked, unless there is a case that PW2 heard a cry or some commotion and on realising that it was his brother who was being attacked and he reached there, PW2 could not have reached Crrp 676/01 7 there. When the entire evidence is appreciated in the proper perspective, I find no reason to interfere with the findings of the learned Magistrate that evidence of Pws.1 and 2 as to how the incident occurred cannot be believed. In any event, appreciation of evidence cannot be said to be perverse. So long as the view taken by the learned Magistrate is a possible and reasonable view which could be taken on appreciation of the evidence, it is not for the revisional court to re-appreciate the evidence and interfere with the order of acquittal. There is no merit in the revision. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.