IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 Crl.L.P..No. 694 of 2011() -------------------------- CC.486/2005 of J.M.F.C.-I, ALUVA .................... PETITIONER/COMPLAINANT(S): -------------------- GOKUL, S/O.GOPALAKRISHNAN, PARAMATTU(H), VADAKODA, THRIKKAKARA NORTH VILLAGE. BY ADV. SRI.BABU KARUKAPADATH RESPONDENT/ACCUSED(S): --------------- 1. RAGHAVAN, S/O.VELAYUDHAN, PAERAKATTIL VEETTIL, VADAKODA, THIRIKKAKARA NORTH VILLAGE 2. SUNIL S/O.RAGHAVAN,PAERAKATTIL VEETTIL, VADAKODA, THIRIKKAKARA NORTH VILLAGE 3. SAJEEVAN, S/O.RAGHAVAN,PAERAKATTIL VEETTIL, VADAKODA, THIRIKKAKARA NORTH VILLAGE 4. SHANI, S/O.RAGHAVAN,PAERAKATTIL VEETTIL, VADAKODA, THIRIKKAKARA NORTH VILLAGE 5. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ADV. SRI.PAUL K.PETER FOR R1 TO 4 SRI.JOSEPH SEBASTIAN PURAYIDAM FOR R1 TO 4 PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.No.694 of 2011 ------------------------------------------------- Dated this the 24th day of August, 2011 ORDER The complainant in a private complaint is the petitioner, who seeks leave of this court u/s.378(4) of Cr.P.C to file an appeal against the judgment dated 16.7.2009 in CC No.486/2005 of the court of Judicial First Class Magistrate-I, Aluva, since the learned Magistrate by the above judgment acquitted the accused u/s.248(1) of Cr.P.C relieving them from the charge for the offences u/s. 323, 324, 427 and 452 r/w. 34 of IPC. There was a delay in filing the leave petition and delay petition was filed upon which notice was ordered and the respondents entered appearance through their counsel. Thus, the delay was condoned after hearing the parties concerned and thus, the above leave petition comes up for admission. 2. I have heard Sri.Babu Karukapadath, learned counsel for the petitioner and Sri.Joseph Sebastian Purayidam counsel appearing for the respondents. 3. The case of the complainant is that at about 5.15 p.m on 3.8.2003 the accused trespassed into the house of the complainant and 2nd accused attempted to demolish the front Crl. L.P.No.694 of 2011 2 door of the house using an iron rod and when the father of the complainant, PW3 intervened, the 4th accused inflicted injury on the chest and shoulders of the complainant with a wooden piece. According to the complainant, when the mother of the complainant interfered, she was also assaulted and thereafter, the 4th accused demolished the window glass of the house using a wooden piece and the 2nd accused destroyed aluminum sheet of the workshop with an iron rod and especially sustained loss of Rs.2,500/-. Therefore, according to the complainant, the accused has committed the offences punishable u/s.323, 324, 427 and 452 r/w Section 34 of IPC. 4. On the basis of the sworn statement of the witnesses and the averment contained in the complaint, the complaint was taken on file on 21.3.2005 and thereafter on the appearance of the accused, the complainant was examined as PW1 and Exts.P1 to P3 were marked. Thereafter, a charge was framed for the offence punishable u/s.323,324, 427 and 452 r/w Section 34 of IPC and the same was read over and explained to the accused to which they pleaded not guilty. Thereafter, PW1 was recalled, he was cross examined by the accused and beside PW1, PWs.2 to 5 were also examined and Exts.P4 was marked. On the close of Crl. L.P.No.694 of 2011 3 the prosecution evidence, the accused were questioned u/s.313 of Cr.P.C and they denied the incriminating circumstances and evidence. Though, no witness is examined from the side of defence, Ext.D1 and D2 were marked as defence exhibits. On the basis of the rival pleadings and evidence on record, the trial court considered 4 points for its consideration and finally after appreciating the prosecution evidence tendered through PW1 to 4, the learned Magistrate arrived at a conclusion that the complainant has not establish his case beyond reasonable doubt. Consequently, the accused are found not guilty for the offence charged against them and accordingly, they are acquitted u/s.248(1) of Cr.P.C. It is the above findings and order of acquittal sought to be challenged by filing an appeal, for which the petitioner seeks special leave of this court u/s.378(4) Cr.P.C. 5. The counsel for the petitioner vehemently submitted that the findings of the court below regarding the discrepancies in the evidence of the prosecution witnesses are not correct and, the learned Magistrate miserably failed to appreciate the evidence in its proper way and the reason assigned by the learned Magistrate is disbelieve the evidence of PWs.1 to 4 are without any basis and therefore, the judgment of the trial court Crl. L.P.No.694 of 2011 4 is liable to be interfered with for which the petitioner is entitled to get the leave of this court. 6. On the other hand, the counsel for the respondent vehemently submitted that the complaint itself was filed out enmity towards the respondents/accused and the Police has already registered a crime against the respondents at the instance of the complainant and subsequently, the Police referred the case as false. It is also the submission of the counsel that the trial court has properly evaluated the evidence of prosecution witnesses and reason assigned by the court below is correct and there is no scope for any interference with the order of acquittal. 7. I have carefully considered the arguments advanced by the counsel for the petitioner as well as the respondents. I have perused the judgment of the trial court carefully. In the light of the materials and evidence referred to by the learned Magistrate in the impugned judgment and his finding on the basis of such materials and evidence and in the light of the rival pleadings advanced by the counsel for the petitioner as well as the respondents, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant Crl. L.P.No.694 of 2011 5 leave u/s.378(4) of Cr.P.C. 8. At the outset, it is to be noted that the complainant initially approached the Trikkakara Police Station and launched a complaint on the basis of which crime No.191/2003 was registered in the Trikkakkara Police Station but the Police has referred the case after investigation. It is thereafter, the petitioner approached the court below by filing a private complaint. 9. The case of the complainant is that on 3.8.2003 the accused 4 in numbers entered into the house of the complainant illegally and after trespass into the house, 2nd accused demolished the window door and window glass of the house using an iron rod and when the father of the complainant interfered, the 4th accused assaulted his father as well as his mother. It is also the case of the complainant, PW1 that the 4th accused by using the wooden piece caused hurt on his right hand and chest and accused Nos.2 and 3 beat the mother of the complainant. It is the further case of the complainant that the 4th accused destroyed the window sheets using a wooden piece and 2nd accused destroy aluminum sheet of the workshop using an iron rod. To substantiate the allegation of injury inflicted on the Crl. L.P.No.694 of 2011 6 prosecution witnesses, the complainant has produced Ext.P1 wound certificate. Ext.P3 is the private complaint filed by him before the court. Beside, PWs.1, 2 and 3, the complainant has also examined as PW4, who seems to be an independent witness to prove the allegation. 10. While appreciating the evidence of the complainant, the trial court has found that PW2, the mother of the complainant deposed deviating from the averments contained in the complaint. It is specifically found that the complainant has not stated in Ext.P3 complaint that PW2 was pushed down by the accused persons. It is also found that the evidence tendered by PW1 and 2, regarding the assault caused to PW2, is different from Ext.P3 private complaint. The trial court has also found that the evidence of PW1 shows that the 4th accused has caused hurt to the right hand and chest of PW1 with a wooden piece. But according to PW3, the father of the complainant, the 4th accused inflicted hurt on the face of the complainant using wooden piece. So according to the learned Magistrate, the evidence of PW1 and 3 is incongruous with respect to the injury sustained by PW1. 11. The learned Magistrate has also found that the Crl. L.P.No.694 of 2011 7 evidence of the independent witness is also not supporting the evidence of PWs.1 to 3. The learned Magistrate has further found that, though PW1 has claimed that the occurrence had taken place at 5.15 p.m on 3.8.2003 and he sustained injury in that incident, the complainant-PW1 was got examined only at 2.20 p.m on the next day on 4.8.2003 and there is no explanation for the delay. The learned Magistrate examined and appreciated the evidence of the prosecution in the background of the fact that the complainant was the accused in Crime No.142/2000 of the Trikkakara police station wherein the offence alleged against the complainant u/s.324 and 294(b) of Cr.P.C and the Police had filed report in that case which finally culminated the conviction of the complainant in CC No.532/2002, and that conviction and sentence upheld in the appeal. 12. On a scanning of the judgment of the trial court it appears to me, that the learned Magistrate who got the privilege to observe the demeanor of the witnesses and parties to the proceedings has evaluated the evidence properly and by assigning valid reasons declined to accept the case of the complainant. The inherent defect of the prosecution which, I referred to above has to be examined in the background, Crl. L.P.No.694 of 2011 8 particularly the fact that the Police has already registered a crime on the basis of the complaint preferred by the complainant and the Police referred the above case. It is also relevant to note that, connected with an incident taken place on 3.9.2000 at 4.15 Crime No.152/2000 was registered at the instance of the 4th accused herein and father of the complainant was convicted in that case. So the possibility of enmity of the complainant towards the accused particularly against A4, again he tried to allege the overt act cannot be ruled out. It is also relevant to note that though the complainant has claimed that he had sustained injuries in the incident, no proper medical evidence is adduce to substantiate such claim. As rightly pointed out by the learned Magistrate though the incident had taken place at 5.15 p.m on 3.8.2003, he was subjected to medical examination by the doctor only on 2.20 p.m on 4.8.2003. If the incident is true, as claimed by the complainant, there is no explanation for such delay. If the discrepancies pointed out by the learned Magistrate in his judgment particularly in paragraph 6, 7 and 9 are examined in the light of the arguments advanced by the counsel for the petitioner, according to me, the outcome never justify or warrant and interference with the order of acquittal recorded by Crl. L.P.No.694 of 2011 9 the learned Magistrate. Considering the over all facts and circumstances involved in this case and the particular background of the case that the father of the complainant was convicted and sentenced at the instance of the 4th accused herein and considering the fact that the Trikkakara Police has already referred the crime registered against the accused, on the basis of the complaint preferred by the complainant, according to me, it is not a fit case to grant special leave so as to file an appeal against the judgment sought to be impugned. The grounds pointed by the counsel with respect to the appreciation of evidence alone by the learned Magistrate, however, are not sufficient the consisting and compelling reasons to interfere with the order of acquittal recorded by the learned Magistrate. Hence absolutely there is no scope to accord leave for filing appeal. In the result, there is no merit in the leave petition and accordingly, the same is dismissed declining the leave u/s.378(4) of Cr.P.C. V.K.MOHANAN, JUDGE. pm