IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 Crl.Rev.Pet.No. 1572 of 2011() ------------------------------ ST.1217/2005 of JUDL. MAGISTRATE OF FIRST CLASS-1, CHANGANACHERRY .................... REVN. PETITIONER: DEFACTO COMPLAINANT (PW1) ----------------------------------------------- RANI JOSEPH, W/O.P.D.JOSEPH, PUTHUKKATTUCHIRA VEEDU, NEAR CHETHIPUZHA HOSPITAL VEROOR KARA, CHETHIPPUZHA VILLAGE, CHANGANACHERRY, KOTTAYAM. BY ADV. SMT.P.MAYA SMT.DEEPTHI S.MENON RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. SABU, S/O.AUSEPH, KOCHUVEEDU, NEAR ST.THOMAS HOSPITAL, CHETHIPUZHA, CHANGANACHERRY, KOTTAYAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.SETHUNATH FOR R1 SRI.PRAKASH KESAVAN FOR R1 R2 BY REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1572 of 2011 ---------------------------------------- Dated the 28th day of July, 2011 ORDER This Crl.R.P. is preferred at the instance of the de facto complainant in a prosecution for the offence under section 354 IPC. 2. The prosecution case is that on 23.3.2005 at about 9.30. p.m., the accused, after holding the hair of the de facto complainant, beat on her back and also slapped on her left cheek and kicked on her abdomen and thereby outraged the modesty of the de facto complainant and thus committed the offence punishable under section 354 IPC. 3. During the trial of the case, PWs 1 to 6 were examined from the side of the prosecution. No evidence is adduced from the side of the defence. The trial court after elaborate consideration of the evidence and materials on record, came into a conclusion that the prosecution has failed to prove the case against the accused beyond reasonable doubt and the accused is entitled to get the benefit of doubt. Thus the accused was acquitted under section 255(1) Cr.P.C It is the above order of acquittal challenged in this Crl.RP. 4. I have heard Smt. P. Maya, the learned counsel for the CRRP 1572/2011 2 petitioner and also Sri v. Sethunath appearing for the Ist respondent. and the learned Public Prosecutor. 5. At the outset, it is to be noted that even though the prosecution was launched by the police, the State has not chosen to file any appeal against the order of acquittal, but the challenge is only at the instance of the de facto complainant. The learned counsel for the petitioner vehemently submitted that absolutely there is no delay and therefore the findings of the court below is illegal and factually unsustainable. In support of the above contention, the learned counsel invited my attention to Ext.P2 wound certificate dated 24.3.2005. On the strength of Ext.P2, it is the submission of the learned counsel that on the next day of the incident, PW1 went to the hospital and got treatment for the injuries sustained by her at the instance of the accused. According to the learned counsel, the trial court failed to consider the above evidence. 6. On the other hand, the counsel appearing for the Ist respondent/accused submitted that the trial court is correct in holding that the prosecution has not established the case against the accused beyond reasonable doubt since there is no independent evidence adduced by the prosecution. It is also the CRRP 1572/2011 3 submission of the learned counsel that the delay , though minor, is not properly explained by the prosecution and thus according to the learned counsel, no interference is warranted. 7. I have carefully considered the arguments advanced by the counsel for the petitioner as well as the contesting respondent. The trial court refused to accept the prosecution case since according to the court, the prosecution has failed to establish its case beyond reasonable doubt, and in order to come into such conclusion, the court has mainly assigned two reasons. According to the court, though the incident was on 23.3.2005, the FIS was launched only on the next day, i.e. on 24.3.2005. The court has also found that in the deposition of PW1, the date of occurrence is stated as 23.1.2005. The other ground, on the basis of which the acquittal was recorded is that, there is no independent evidence to support the evidence of PW1, the de facto complainant. In the light of the decisions in Apex court in Chinna Swamy v. State of Andrha Pradesh (AIR 1962 SC 1788); Gurushinder Singh v. Joga Singh and Anr. (AIR 2000 SC 3418) and K.Ramachandran v. V.N.Rajan (2009 Crl.L.J 4413), I am of the view that this court is not expected to re appreciate the evidence while exercising the revisional jurisdiction, especially, when the jurisdiction is invoked by CRRP 1572/2011 4 the private party. When the case on hand is examined with the above limitation, according to me, the trial court is absolutely correct and legal in acquitting the accused on the basis of the reasons assigned by it. In this juncture it is to be noted that it has come out in evidence that there were difference of opinion among the accused and PW1 even before the alleged incident. The above factor assumes vital role in analysing the evidence of PW1. Therefore, even if it is admitted that the incident has taken place on 23.3.2005, there is no explanation for the delay even though the same is only one day. So, the possibility of PW1 to implicate the accused falsely because of the previous enmity, cannot be ruled out. The trial court is correct in its finding fo the fault on the part of PW1 in getting treatment on the date of the incident itself inf the incident is true. 8. The Apex Court in the decision in Chandran @ Manichan @ Maniyan v. State of Kerala (2011 (3) Supreme 33) held that reappreciation of the evidence in concurrent findings is not called for in a revision, unless there is some substantial defect. In the decision in Rukia Begum v. State of Karnataka (2011 3 Supreme 20) has held that, the view of the Trial Judge as to the credibility of the witness must be given proper weight and CRRP 1572/2011 5 consideration and the High court can come to different conclusion which must be based upon compelling and weighty reason to interfere with an order of acquittal. In the light of the above authorities, I find no reason to interfere with the order of acquittal, that too at the instance of the private party. In the result, there is no merit in the same and accordingly the same is dismissed. V.K.MOHANAN, JUDGE kvm/- CRRP 1572/2011 6