IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 Crl.MC.No. 2206 of 2008() ------------------------- PETITIONER: PETITIONER/DEFACTO COMPLAINANT (INJURED) ---------------------------------------------------- POOKAYIL KOCHI, W/O.KONTHU, ESWARAMANGALAM AMSOM, CHERUVAIKKARA DESOM. BY ADV. SRI.V.K.SUNIL RESPONDENTS: RESPONDENTS/COMPLAINANT & ACCUSED ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ABHILASH, S/O.ARUMUGHAN, ELIYATHU THARAYIL HOUSE, EDAPPAL AMSOM, THUYYAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.2206 of 2008 ---------------------------------------- Dated this the 12th day of June 2008 O R D E R The petitioner in this application under Section 482 Cr.P.C is the de facto complainant in a prosecution under Sections 457, 323 and 324 read with 34 I.P.C. Altogether there are two accused persons in this case. They are brothers. Their sister PW3 was married to PW2 who is the son of PW1. There was some discord in the matrimony and it is alleged that the two accused persons had trespassed into the house of PWs 1 and 2 on the date of the occurrence. The first accused had allegedly assaulted PWs 1 and 2 with a dangerous weapon/sword. The second accused had allegedly slapped PW2, with his hand. They had allegedly acted in collusion because of the animosity which they entertained towards PWs 1 and 2, the mother-in-law and husband of their sister. It is in these circumstances that allegations were raised under Sections 457, 323 and 324 read with 34 I.P.C. Investigation commenced on the basis of Ext.P1 F.I.S lodged by PW1. PWs 1 and 2 supported the case of the prosecution. PW3, the sister of accused 1 and 2 and the Crl.M.C.No.2206/08 2 daughter/wife of PWs 1 and 2 did not support the prosecution case. PWs 4 and 5 are independent witnesses who claim that they were present at the scene of the occurrence. Both of them did not support the prosecution regarding the precise overt acts. PWs 6 and 7 are mahazer witnesses. PW8 is the doctor who issued Exts.P2 and P4 wound certificates after examining PWs 1 and 2. PWs 9 and 10 are investigating officers. Ext.P5 is the F.I.R. Only the second accused was available for trial and the prosecution examined PWs 1 to 10 and proved Exts.P1 to P5. The first accused is absconding. The case against him was split up. He is now facing trial in the split up case, it is submitted. The accused took up a very specific stand. According to them, PW1 was a woman engaging herself in occult practice. PW1, the mother-in-law and PW2 the husband were behaving cruelly to PW3, the sister of accused 1 and 2. They had therefore gone to the house where PWs 1 to 3 were residing. PWs 1 and 2 were not permitting PW3 to have contacts with accused 1 and 2 and her request to go to her house was turned down by PWs 1 and 2. There was an exchange of words and a push and pull in connection with that dispute at the house of PWs 1 and 2 when Crl.M.C.No.2206/08 3 accused 1 and 2 went there peacefully. In the course of that incident PW1 may have suffered injuries when she tried to wield the sword of a velichappadu which was available in the house. They contended that they are absolutely innocent. 2. The learned Magistrate took note of the fact that there was only the interested versions of PWs 1 and 2 to support the case of the prosecution. PW5 had turned hostile. PW4, a close relative of PWs 1 and 2 did not support the case of the prosecution in full. Specific overt acts were not spoken to by PW4. To choose between the versions of the accused and the prosecution there was only the evidence of PWs 1 and 2. The learned Magistrate considered their evidence intrinsically and with the help of external inputs and came to the conclusion that it is not possible to come to the conclusion that the oral evidence of PWs 1,2 and 4 is sufficient to establish the case of the prosecution beyond doubt. The learned Magistrate further took note of the fact that the medical evidence does not satisfactorily corroborate the version of PWs 1 and 2. Accordingly, the learned Magistrate proceeded to pass the impugned judgment of acquittal. Crl.M.C.No.2206/08 4 3. The judgment of acquittal was challenged before the learned Sessions Judge in revision. The learned Sessions Judge, on an anxious consideration of all the relevant inputs chose to concur with the conclusions of the learned Magistrate that the offence alleged against the second accused has not been established satisfactorily in the trial. Accordingly the learned Sessions Judge also agreed with the conclusions of the trial court and upheld the judgment of acquittal. 4. This petition has been filed under Section 482 Cr.P.C. A second revision is barred under the provisions of the Code of Criminal Procedure and that explains why the petitioner has come to this court with this petition bearing the label of Section 482 Cr.P.C. The crucial question is whether in the interests of justice this court needs to invoke its extraordinary inherent powers under Section 482 Cr.P.C. The question has to be decided with alert consciousness about the nature, quality and contours of the jurisdiction of this court while exercising its jurisdiction under Section 482 Cr.P.C. Trial court has considered the matter in detail. The court of revision had also considered the matter satisfactorily. The scope for the area of Crl.M.C.No.2206/08 5 consideration in this Crl.M.C must therefore be held to be extremely narrow and limited. 5. The trial court, has the evident advantage of seeing the performance of the witnesses before for it. There were equally competing versions advanced - by PWs 1 and 2 on the one hand and the accused on the other. PW3 did not support the prosecution case and it is evident that there was strain in the matrimony between PWs 2 and 3. PW3's life at her matrimonial home, it would appear, was not harmonious or peaceful. The accused have a definite case that when they went there to meet their sister and to know from her the alleged treatment meted out to her at her matrimonial home, they were assaulted. The court below in these circumstances was eminently justified in coming to the conclusion that the oral evidence of PWs 1 and 2 must be sifted, weighed, analyzed and evaluated with great care and caution. The courts below found that the oral evidence of PWs 4 and 5 is not sufficient to offer assurance to the court for the oral evidence of PWs 1 and 2. The court further noted that the wound certificates of PWs 1 and 2 issued by PW8 doctor as well as the evidence of PW8 doctor is also not sufficient to offer Crl.M.C.No.2206/08 6 to the court the inspiration and the assurance which it was looking for the oral evidence of PWs 1 and 2. I am satisfied in the facts and circumstances of this case that the courts below have not committed any such gross error in the exercise of their jurisdiction which can persuade this court to invoke the inherent jurisdiction under Section 482 Cr.P.C. I am satisfied that this Crl.M.C does not in these circumstances deserve to succeed. 6. This Crl.M.C is in these circumstances dismissed. (R.BASANT, JUDGE) jsr Crl.M.C.No.2206/08 7 Crl.M.C.No.2206/08 8 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007