IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.Rev.Pet.No. 330 of 2000() ----------------------------- CC.352/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S): --------------------- IBRAHIM, SON OF ALI, NAIBARAGTH, V.P.THURUTHU, NOW RESIDING AT WESTERN SIDE OF ANAPPUZHA POST OFFICE, KOTTAPURAM. BY ADV. SRI.K.A.JALEEL SRI.C.ANIL KUMAR RESPONDENT(S): --------------- 1. NAZAR SON OF SAIDU, KOTTAYATH HOUSE, SCHERAMAN NAGAR, METHALA. 2. BASHEER SON OF SAIDU, -DO- -DO- 3. KAISAB SON OF SAIDU, -DO- -DO- 4. NOUSHAD S/O.MAMATHU @ MUHAMMED, KOTHUVELIL HOUSE, CHEERAMAN NAGAR, METHALA. 5. ANI @ HANEEFA S/O.BAVA, EDAKOODATHIL HOUSE, CHERAMAN NAGAR, METHALA. 6. YOUSEPH MASTER S/O.ALI, MULLASSERY HOUSE, ANCHAPALAM, METHALA. 7. SEETHI S/O.KUNJIMUHAMMED, THANIPEEDIKAYIL, ANCHAPALAM, METHALA. 8. MUHAMMED MASTER S/O. KUNJUMOIDEEN, PUNNILATH HOUSE, KOTTAPURAM, METHALA. 9. THE STATE OF KERALA (REPRESENTED BY THE SUB INSPECTOR OF POLICE, KODUNGALLOOR, IN CRIME NO.383/95 OF KODUNGALLOOR POLICE STATION) REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT, ERNAKULAM. ADV. SRI.P.VIJAYA BHANU FOR R1 TO R8. BY PUBLIC PROSECUTOR SRI. JAYASURYA FOR R10. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON 01/07/2009 PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Crl. R.P. No. 330 of 2000 --------------------------------------------------- Dated this the 1st day of July, 2009. ORDER This is a revision against order of acquittal. The revision petitioner is PW2, who is the injured and the de facto complainant. According to him, on 16.10.1995 at about 10.45 p.m. accused numbers 1 to 5 formed into an unlawful assembly and assaulted him using iron pipes while he was going through the road on his cycle in front of a temple. Accused nos.1 to 3 wrongfully restrained him and and beat him with iron pipes. He sustained fracture to his right arm. Accused 4 and 5 also attacked him and the overt acts were committed at the instigation of A6 to A8. Accused were charge-sheeted for offences under Section 143,147, 148, 341, 120(b), 324, 326 r/w 149 of IPC. 2. Before the trial court, PWs 1 to 8 were examined and Exts.P1 to P4 and MO1 were marked on the side of prosecution. Ext.D1 was marked on the side of the accused. 3. The trial court found that PW2 who is the injured did not reveal the name of any of the accused to the doctor. It was [Crl.R.P.330/2000] 2 also found that evidence of PW2 cannot be relied upon in the absence of independent corroboration. The only independent witness turned hostile to the prosecution and thus prosecution did not succeed in proving the guilt of the accused is the conclusion of the the trial court. The trial court also placed reliance upon the decision reported in Devinder v. State of Haryana (1996 Criminal Law Journal 4461 (SC) to arrive at a decision. The evidence of PW3 and PW4, who are close relatives of PW2, were also chance witnesses and hence their evidence was not relied upon. The trial court on the basis of such findings acquitted the accused. 4. The revision petitioner raised a ground in the revision memo that the trial court went wrong in finding that the evidence of PW2 is not believable, on the ground that the name of the accused were not stated to the doctor. It was argued that though there was such an omission, he mentioned the details in the first information statement. It was also contended that there is no material discrepancy or contradiction in the evidence of PW2. which is corroborated by the evidence of PW3 and PW4. The evidence of PWs 3 and 4 cannot be said to be wholly unreliable [Crl.R.P.330/2000] 3 and hence the rejection of their evidence was incorrect, is the contention. 5. I have gone through the records and the evidence of PWs 1 to 4, who are the occurrence witnesses, coupled with the evidence of the doctor PW5 and Ext.P2 wound certificate and also the impugned judgment. But, I do not find any perversity in the findings entered into by the trial court. As per the evidence of PW2 and first information statement, accused no.1 was known to PW2 very closely and there were earlier incidents between them. But, inspite of this fact, PW2 did not state his name to the doctor or even his involvement in the occurrence in any manner. There is no satisfactory explanation forthcoming for non- mentioning of the name of accused to the doctor at the earliest point of time. 6. It can also be seen that PW1, who is only an independent witness, turned hostile to the prosecution. The evidence of PWs 3 and 4 also does not reveal the identity of the accused who committed the offences. They have not identified the accused from the witness box. In fact, they only mentioned that “accused” have acted in a particular manner etc. On the basis of such [Crl.R.P.330/2000] 4 evidence given by PWs 2 to 4, the trial court was right in rejecting their evidence and holding the accused not guilty, for want of evidence. On going through the records, I do not find sufficient cogent materials to come to the conclusion that the accused committed the offences alleged against them beyond reasonable doubt. There is dearth of satisfactory evidence and hence there is no ground to interfere with the order of acquittal. This Court can interfere if there is perversity in the findings of facts, illegality, impropriety or irregularity. But I do not find any. This revision petition is dismissed. Sd/- K. HEMA, JUDGE. Krs. [Crl.R.P.330/2000] 5 K. HEMA, J. --------------------------------------------------- Crl. R.P. No. 330 of 2000 --------------------------------------------------- Dated this the 1st day of July, 2009. ORDER