IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Crl.Rev.Pet.No. 1223 of 2001() ------------------------------ CC.841/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... REVN. PETITIONER(S): ------------------------------------- GOPALA PILLAI, S/O. AYYAPPAN PILLAI, PUTHUSSERRY VEEDU, KADAMBATTUKONAM, KILIMANNOOR. BY ADV. SRI.G.GOPALAKRISHNAN NAIR SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): --------------------------- 1. GOPI PILLAI, S/O. MADHAVAN PILLAI, PANACHAYIL VEEDU, KADAMBATTUKONAM, MALAYAMADAM, KILIMANNOOR VILLAGE. 2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI.K.J. MOHAMMED ANZAR. ADV. SRI.T.V.PRABHAKARAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 7/7/09, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.R.P. No.1223 of 2001 ------------------------------------------------- Dated this the 7th day of July, 2009 ORDER This revision petition is filed by the de facto complainant/ injured in a prosecution for offences punishable under Secs.324, 326 and 294(b) IPC. There was only one accused who faced indictment. The allegation against him was that at 9 a.m. on 30/6/99, P.W.3 was attacked with a chopper/M.O.1 by the accused. He suffered injuries including two fractures. The alleged incident took place on a public road. Prior animosity is the alleged motive. 2. Crime was registered on the basis of the First Information Statement lodged by P.W.3 – the injured. Ext.P1 is the First Information Statement and Ext.P4 is the F.I.R. registered. P.Ws.1, 2, 4 and 6 are the alleged eye witnesses. P.Ws.5 and 7 are the attestors respectively to Ext.P2 scene Crl.R.P. No.1223 of 2001 -: 2 :- mahazar and Ext.P3 mahazar for the seizure of M.O.1. P.W.8 – Head Constable, registered Ext.P4 – FIR on the basis of Ext.P1 – First Information Statement. P.W.9 – Doctor examined the injured - P.W.3 and issued Ext.P7 wound certificate. In Ext.P7, it is alleged that two persons had allegedly attacked the injured/ P.W.3. 3. On the final report submitted by the Investigating Officer, cognizance was taken. The accused denied the offences alleged against him. Thereupon, the prosecution examined P.Ws.1 to 9 and proved Exts.P1 to P7. M.O.1 was also marked. P.Ws.1 and 2 are the alleged eye witnesses. They turned completely hostile to the prosecution. P.W.3 is the injured. He tendered evidence in support of the prosecution. Ext.P1 is the First Information Statement lodged by him. P.Ws.4 and 6 are the alleged eye witnesses who had witnessed the occurrence. They are not shown to be the eye witnesses having valid excuse/explanation to be present at the locality. They are evidently chance witnesses who claimed to have witnessed the occurrence. The evidence of P.W.3 shows that though the names of P.Ws.4 and 6 were not mentioned in Ext.P1 – First Crl.R.P. No.1223 of 2001 -: 3 :- Information Statement, it was he who produced him before the Investigating Officer. After arrest of the accused, M.O.1 chopper was allegedly recovered under Ext.P3 seizure mahazar on the basis of the alleged confession statement of the accused. P.W.9 is the Doctor who examined P.W.3 and issued Ext.P7 wound certificate. The allegation is not that the sole accused person had attacked him; but the specific allegation is that two persons - the accused/the respondent herein and another had attacked P.W.3. 4. The accused denied the circumstances which appeared in evidence and which were put to him. In the course of cross- examination and when examined under Sec.313 Cr.P.C., the accused took the stand that he, his mother and a nephew were victims of aggression and not the aggressors. P.W.3, along with his two nephews and brother-in-law, had allegedly attacked the accused herein as also his mother and nephew. In respect of that incident which allegedly took place at the same time and place, a crime was registered against P.W.3 herein and three of his relatives. After investigation, the police had charge sheeted the said four accused persons. This prosecution is only a belated Crl.R.P. No.1223 of 2001 -: 4 :- attempt to falsely implicate the accused in an attempt to wriggle out of the inconvenient situation in which P.W.3 and his co- accused find themselves. No defence evidence was adduced. 5. The court below, on an anxious consideration of all the relevant inputs, came to the conclusion that the oral evidence of P.Ws.4 and 6 cannot safely be believed. The court found that in the light of the defence set up by the accused and in the light of the admitted version of the Investigating Officer that at the same time and place, another incident had taken place in which P.W.3 along with his co-accused were aggressors, it is difficult to accept and act upon the uncorroborated oral evidence of P.W.3. In these circumstances, the learned Magistrate proceeded to pass the impugned judgment of acquittal conceding the benefit of doubt to the respondent/accused. 6. Before me, the learned counsel for the petitioner/the de facto complainant has advanced his arguments. There is no representation for the respondent/accused. 7. The learned counsel for the petitioner/the de facto complainant submits that the court below erred grossly in not placing reliance on the oral evidence of P.Ws.3, 4 and 6. Their Crl.R.P. No.1223 of 2001 -: 5 :- evidence should have been accepted and when accepted, their evidence constitutes sufficient materials to enter a verdict of guilty and conviction beyond reasonable doubt, argues the learned counsel for the petitioner/de facto complainant. 8. I must alertly remind myself that I am called upon to invoke the revisional jurisdiction of superintendence and correction to interfere with the verdict of not guilty and acquittal. It is trite by now that the initial presumption of innocence in favour of an accused gets fortified by the judgment of acquittal rendered by the trial court. Unless the evidence is grossly erroneous or perverse, the revisional jurisdiction of superintendence and correction cannot be invoked to interfere with such an order of acquittal. 9. The prosecution relied on the oral evidence of P.Ws.3, 4 and 6. Less said about the evidence of P.Ws.4 and 6, the better. They are not shown the persons of the locality. Their presence at the scene of the crime is not convincing and inspiring. P.W.3, in his evidence, virtually admited that it was he who procured the services of P.Ws.4 and 6 as eye witnesses to enable the Investigator to complete the investigation. In these Crl.R.P. No.1223 of 2001 -: 6 :- circumstances, I am not at all persuaded to interfere with the conclusion of the court below that safe reliance cannot be placed on the oral evidence of P.Ws.4 and 6. 10. We are then left with the oral evidence of P.W.3 alone. P.W.3's evidence gets broad support from the First Information Statement – Ext.P1 as also the wound certificate – Ext.P7. But in this context, I must note that the accused has taken up a specific case that P.W.3 and his cohorts were guilty of aggression. P.W.8 – the Investigating Officer as also P.W.3 categorically admitted that P.W.3 is facing indictment in a prosecution in respect of the same incident on the basis of the counter FIR registered and the final report filed. This must generate in the mind of the court the need for caution in the appreciation of evidence. 11. Though a counter case is admitted, significantly the counter FIR or the evidence about the nature of injuries suffered by the injured in the counter case has not been produced. The learned Magistrate, in these circumstances, was evidently not prepared to accept and act upon the oral evidence of P.W.3 which did not get support from any other acceptable oral Crl.R.P. No.1223 of 2001 -: 7 :- evidence. It is also worthy to note that the first version of P.W.3 to the Doctor implicates not only the accused, but another person who is related to the accused. 12. I am, in these circumstances, satisfied that the court below has committed no error warranting revisional interference with the judgment of acquittal founded on definite findings of fact. I am, in these circumstances, persuaded to invoke the revisional jurisdiction to interfere with the impugned judgment of acquittal. 12. In the result, this revision petition fails and is dismissed. (R. BASANT, JUDGE) Nan/ Crl.R.P. No.1223 of 2001 -: 8 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No.1223 of 2001 ------------------------------------------------- Dated this the 7th day of July, 2009 ORDER