IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 Crl.Rev.Pet.No. 1462 of 2006() ------------------------------ CC.409/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER: DEFACTO COMPLAINANT ------------------------------------- T.V.KAMAL, S/O.KUNHIPARRU, KAIRALAM VILLAGE, THALIPARAMBA TALUK. BY ADV. SRI.T.A.SHAJI SMT.RAGAM.S.MOHAN RESPONDENTS: ACCUSED 1-2 & STATE -------------------------------- 1. ABOOBACKER, S/O.MUHAMMED, TEACHER, C.H.M.HIGHER SECONDARY SCHOOL, VARAM P.O., KANNUR DISTRICT. 2. FIROZ, S/O.MAYANKUNHI, MALAPATTAM AMSOM, CHULIYAD DESOM, MALAPPATTAM P.O., KANNUR DISTRICT. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.A.MOHAMED MUSTAQUE FOR R1 & R2 SRI.M.K.SUMOD FOR R1 & R2 PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.1462/2006 -------------------- Dated this the 28th day of August, 2008 ORDER The defacto complainant in C.C.No.409/2004 on the files of the Judicial First Class Magistrate Court-II, Kannur, is the petitioner in this Criminal Revision Petition. The accused were charge sheeted in crime No.152/2004 of Irikkur police station for the offences punishable under Sections 447, 427 and 506(1) read with Section 34 IPC. 2. The prosecution case in brief is that on 12.4.2004, at about 3.00 p.m., the accused in furtherance of their common intention trespassed into the house compound of the building belonging to the brother of CW1 and demolished the north western compound wall of his property and threatened CWs 2 and 3 and caused a loss of Rs.3,000/- to the brother of the complainant. PWs 1 to 6 were examined. The accused was examined as DW1. On an elaborate appreciation of the evidence, the learned Magistrate has come to the conclusion that the accused are entitled to an acquittal and accordingly, they were Crl.R.P.1462/2006 2 acquitted under Section 255(1) of Cr.P.C. Same has been challenged by the defacto complainant in this revision. 3. I heard learned counsel for the petitioner and learned counsel for the accused. I have gone through the records. There are three instances which have been mainly highlighted by the learned Magistrate, in finding against the prosecution. Firstly, the instance is alleged to have taken place on 12.4.2004. According to PW2, he lodged the first information only on 24.2.2004. Apparently, PW2 was residing in the house even on 12.4.2004. There is absolutely no tenable explanation for the delay in reporting this incident to the police. Apparently PW2 tried to offer an explanation that since trespass was committed in the property of his brother, he wanted to contact his brother and get his consent before filing a complaint with the police. Explanation to say the least, was completely unacceptable and it was so rightly held by the Court below. Crl.R.P.1462/2006 3 4. Second aspect which has been highlighted by the Court below is that the only independent eye witness cited in this regard namely PW1, refused to support the prosecution case. The other eye witness originally cited by the prosecution as CW3, was given up. In other words, there was no reliable evidence to hold that the accused had trespassed into the property of the brother of PW2 and demolished the compound wall. 5. Thirdly, the Court below has taken note of the fact that A1 had clearly indicated that he was attending his duty in a school which was situated about 30 kms away from the place where the incident took place. Ext.D1 attendance register and Ext.D1(a) were produced to show that A1 had attended duty at that point of time. This was also accepted by the Court below. 6. In my view, the Court below has correctly appreciated the evidence. It cannot be said that there is any error of jurisdiction or illegality or impropriety in the conclusions arrived at by the Court below. Obviously Crl.R.P.1462/2006 4 there has been no injustice by reason of the order of acquittal. The Criminal Revision Petition is bereft of merit and the same is dismissed. V.GIRI, Judge mrcs