IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.Rev.Pet.No. 2701 OF 2008() ------------------------------ CC.225/2004 OF JUDL.FIRST CLASS MAGISTRATE COURT-I,PERINTHALMANNA .................... REVN. PETITIONER/DEFACTO COMPLAINANT: ---------------------------------------- VENGAMANNIL HAMZA, S/O.KOYAMU, VENGAMANNIL HOUSE, BANK PADI, CHEMMALASSERI, MALAPPURAM DISTRICT. BY ADV. SRI.DEVIDAS.U.K RESPONDENTS/ACCUSED/ STATE: ----------------------------- 1. HAMZA, S/O.MUHAMMED, IRAKKINGAL HOUSE, BANK PADI, CHEMMALASSERI, MALAPPURAM DISTRICT. 2. SIDHIQUE, S/O.MUHAMMED, IRAKKINGAL HOUSE BANK PADI, CHEMMALASSERI, MALAPPURAM DISTRICT. 3. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU FOR R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2701 OF 2008 ------------------------------------------ Dated this the 7th day of October, 2008 O R D E R Petitioner is the defacto complainant. He is challenging the order of acquittal passed by Judicial First Class Magistrate-I, Perinthalmanna in C.C.225 of 2004. Respondents 1 and 2, the accused, were charged for the offences under sections 323 and 324 read with section 34 of Indian Penal Code. Prosecution case was that on 10.5.2004 at about 5.30 p.m. accused voluntarily caused hurt to PW1, by beating him with their hands and when PW4 intervened, he was also beaten with a wooden stick causing hurt and thereby committed the offences under sections 323 and 324 read with section 34 of IPC. Accused pleaded not guilty. Prosecution examined six witnesses and marked five exhibits and one material object. The Courts below found that prosecution failed to establish the offences and acquitted the accused under section 248(1) of Code of Criminal Procedure. It is challenged in this revision filed under sections 397 and 401 of Code of Criminal Procedure. CRRP 2701/08 2 2. Learned counsel appearing for petitioners was heard. 3. The argument of the learned counsel is that the learned Magistrate should not have given undue importance to the delay in filing the F.I.R., when evidence establish that PW4 was admitted as an inpatient in I.C.U. at Al-Shifa Hospital, Perinthalmanna and was unconscious. It was argued that the evidence of PW1 to 4 establish that the accused in furtherance of their common intention beat PW1 and when PW4 intervened, he was also beaten with a stick causing hurt and thereby committed the offences. 4. Though in exercise of the revisional powers an order of acquittal could be interfered, it can be done only if appreciation of evidence was perverse or any material evidence was omitted to be taken note of by the learned Magistrate, or when Court is satisfied that there was flagrant miscarriage of justice. 5. On going through the judgment of the learned Magistrate, it is absolutely clear that evidence was properly appreciated. Though the incident occurred on 10.5.2004, Ext.P1 F.I. Statement was furnished only on 30.5.2004. The argument of the learned counsel is that the delay was explained as PW4, CRRP 2701/08 3 the injured, was admitted in I.C.U. and was unconscious for three days. The learned Magistrate rightly relied on the evidence of the doctor, who prepared Ext.P5 wound certificate that PW4 was not unconscious. Therefore explanation for the delay in furnishing F.I. Statement is not correct. The learned Magistrate also found that even as per Ext.P1 F.I. Statement an independent witness by name Sivan was present, but he was not examined and evidence of PWs 3 to 5 were not reliable. It cannot be said the appreciation is perverse. There is no justifiable reason to interfere with the order of acquittal by the learned Magistrate. Revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-