IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.Rev.Pet.No. 2164 of 2009() ------------------------------ CC.144/2006 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE NO.I, PERINTHALMANNA .................... REVN. PETITIONER/DEFACTO COMPLAINANT: ------------------------------------------------- AYAMU, S/O. ALAVI, PATHARI HOUSE, ARAKKAPARAMBU, PERINTHALMANNA. BY ADV. SRI.ALEXANDER GEORGE RESPONDENTS/STATE/ACCUSED: ------------------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. STATION HOUSE OFFICER, PERINTHALMANNA POLICE STATION, 3. MOIDEENKUTTY @ KUNHIPPA, S/O. KUNHIMOIDEEN, THARAKKANTHODY HOUSE, ARAKKAPARAMBA, PERINTHALMANNA. 4. ABDUL RAHSEED, S/O. MOIDEEN KUTTY, THARAKKANTHODY HOUSE, ARAKKAPARAMBA, PERINTHALMANNA. 5. ABDUL RAHIMAN, S/O. MOIDEEN KUTTY, THARAKKANTHODY HOUSE, ARAKKAPARAMBA, PERINTHALMANNA. 6. MUHAMMED FAROOQ, S/O.MOIDEEN KUTTY, THARAKKANTHODY HOUSE, ARAKKAPARAMBA, PERINTHALMANNA. PUBLIC PROSECUTOR :SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2164 of 2009 --------------------------------------- Dated this 06th day of July 2009 ORDER Heard counsel for petitioner and public prosecutor who took notice for respondent No.1. 2. This revision is in challenge of acquittal of respondent Nos. 2 to 6 by learned Judicial First Class Magistrate, Perinthalmanna in C.C.No.144 of 2006. Respondent Nos. 2 to 6 faced trial for offences punishable under Secs.143, 147, 341, 323 and 427 r/w Sec.34 of the Penal Code. Case is that on 10-01-06 at about 10.00 a.m respondent Nos.2 to 6 formed unlawful assembly, wrongfully restrained PW1 and others who were travelling in an autorikshaw by stopping it, voluntary caused hurt to PW1 and committed mischief by damaging the autorikshaw. Prosecution examined PWs.1 to 10 and marked as Exts.P1 to P6 and MO1. When questioned under Sec.313 of Code of criminal procedure (for short, “the Code”) respondent Nos.2 to 6 claimed that petitioner and one Shafeek assaulted one Ashraf alleging that said Crl.R.P.No.2164 of 2009 2 Ashraf telephoned to the wife of petitioner. Police came for investigation. Respondent No.2 gave statement against the petitioner in that matter. On account of that enmity respondent Nos.2 to 6 are falsely implicated in the case. Learned magistrate after consideration of the evidence found that case is not proved beyond reasonable doubt and acquitted respondent Nos.2 to 6 under Sec.255(1) of the Code. It is contended by learned counsel that learned magistrate has not properly appreciated the evidence and that learned magistrate was carried away by some exaggeration in the evidence of petitioner. 3. Petitioner in his evidence as PW1 claimed that respondent Nos.2 and 5 stopped the autorikshaw in which himself, son and others were travelling. Respondent No.4 hit him with Iron rod and it hit his neck. Respondent No.5 tried to pull him down from the autorikshaw. Respondent No.5 fisted on his head. Respondent No.6 attacked him with a chopper. Chopper hit the autorikshaw and damaged it. PW2 stated that he was travelling in Crl.R.P.No.2164 of 2009 3 the autorickshaw along with PW1. He also referred to the incident and claimed that respondent No.4 beat PW1 with stick (as against version of PW1 that respondent No.4 attacked him with iron rod). Respondent No.6 was carrying an iron rod (according to PW1, respondent No.6 attacked him with chopper). PW9 is the driver of the autorickshaw. He did not say anything about the damage allegedly caused to his autorikshaw. PW4 is said to have witnessed the incident. He stated that respondent Nos.2 and 3 stopped the autorickshaw and respondent Nos.3 and 4 and one Shafeek (he is an accused) caught PW1 holding on his shirt. Respondent No.4 assaulted PW1 with iron rod and the blow fell on the autorickshaw and damaged it. PW5 is the son the petitioner (PW1). He was also travelling in the autorickshaw. He referred to the incident but does not remember who had attacked the petitioner. PW6 did not support the prosecution. PW7 examined petitioner (PW1) and issued Ext.P2, wound certificate. There was a small abrasion on the right side of neck of petitioner told PW7 Crl.R.P.No.2164 of 2009 4 that he was assaulted by five persons with iron rod. PW10 investigated the case. His evidence would show that petitioner is accused for C.C.No.43 of 2000. According to PW10, no weapon was used in the alleged incident. 4. Though petitioner (PW1) and PWs.2 and 4 claimed that weapons, either iron rod, chopper or stick were used in the incident, there is no charge even for that. On the other hand, evidence of PW10 is that no weapon is used in the incident. That means, evidence of petitioner and other witnesses regarding the alleged used of weapons and causing damage to the autorickshaw is false. PW9, driver of the autorickshaw did not refer to any such damage to his vehicle. According to the petitioner (PW1) he was assaulted and his shirt (MO-1) was strained with blood. In chief examination when that shirt was shown to him he denied that it is his shirt. Then he immediately corrected and stated it is his shirt. Evidence of PW3 would show that no such incident has occurred. According to him, autorickshaw was stopped and then went to the Crl.R.P.No.2164 of 2009 5 nearby shop to purchase articles. He had declared 'hostile'. Court below has considered the evidence and was I am satisfied that it may not be proper to grant bail to petitioner at this stage with it. What is spoken by petitioner and his witnesses does not appear to be a true version of the incident. Learned magistrate also was of that view to warrant conviction. That finding is based after a consideration of the evidence. Even if it is assumed that a different view is also possible, that is no ground to interfere with an acquittal in revision. I do not find reason to interfere. Thus revision fails. It is dismissed. THOMAS P JOSEPH, JUDGE Sbna/