IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 2ND FEBRUARY, 2010 / 13TH MAGHA, 1931 Crl.Rev.Pet.No. 370 of 2010 ------------------------------------ (CC.112/2008 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA) .................... REVN. PETITIONER(S): DEFACTO COMPLAINANT: ---------------------------------------------------------------------- JOHN VARGHESE @ SUNNY, PALLIVATHUKKAL HOUSE, PEZHUMPARA P.O., PATHANAMTHITTA NOW WORKING AT AL HASHE MIYAH CO.(HATCO) POST BOX NO.10510, RIYADH 1143, SAUDI ARABIA. BY ADV. SRI.T.K.VENUGOPALAN SRI.ROY THOMAS (PATHANAMTHITTA) SRI.SHIBU JOSEPH RESPONDENT(S): COMPLAINANT/ACCUSED: --------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR. 2. SUSEELAN @ SUNIL, S/O.CHANDRAN, KIZHAKKEDATHU MURUPPEL VEEDU, CHAKKALETHU COLONY, MYLAPARA MURI, MYLAPARA VILLAGE. 3. MADHU, S/O.NANU, CHAKKALETHUKIZHAKKETHIL VEEDU, CHAKKALETHU COLONY, MYLAPARA MURI, MYLAPARA VILLAGE. 4. MANU, S/O.NANU, CHAKKALETHUKIZHAKKETHIL VEEDU, CHAKKALETHU COLONY, MYLAPARA MURI, MYLAPARA VILLAGE. 5. RETHISH, S/O.RAGHAVAN, CHAKKALETHU VEEDU CHAKKALETHU COLONY, MYLAPARA MURI, MYLAPARA VILLAGE. 6. PRAKASH, S/O.KUNJU PILLAI, CHAKKALETHU KIZHAKKETHIL VEEDU, CHAKKALETHU COLONY,MYLAPARA MURI, MYLAPARA VILLAGE R1 BY PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 370 of 2010 --------------------------------------------- Dated this the 2nd day of February, 2010 O R D E R The petitioner, who is the de facto complainant, has preferred this revision petition challenging the order of acquittal passed by the Chief Judicial Magistrate Court, Pathanamthitta in C.C.No.112 of 2008. 2. At the instance of the de facto complainant, Crime No.258 of 2008 was registered in the Pathanamthitta Police Station against the accused persons, five in numbers for the offences punishable under Sections 341,326 and 427 read with Section 34 I.P.C. After investigation, the Police filed its final report based upon which cognizance was taken and instituted C.C.No.112 of 2008. A formal charge was framed against the accused and when it was read over and explained to them, they denied the charge and pleaded not guilty. Consequently, the case was posted for trial Crl.R.PNO.370 of 2010 :-2-: and summons were ordered to the witnesses. 3. In response to the summons received, the wife of the de facto complainant/the revision petitioner turned up and she gave the evidence. On the basis of the report that the revision petitioner as well as the third charge witness were in Gulf, their examination was dispensed with after the examination of PW1 who is the wife of the de facto complainant. As there was no evidence and on specific finding by the court below that no purpose will be served in continuing the trial with the examination of the remaining formal witnesses, especially in the light of the fact that PW1, who was cited to prove the incident, failed to adduce any positive evidence to substantiate the allegation against the accused. Thus, as there is no evidence, the trial court, after considering the available materials including the evidence of PW1, came into a conclusion that the prosecution has miserably failed to substantiate the allegation and accordingly, the accused were acquitted under Section 248 Crl.R.PNO.370 of 2010 :-3-: (1) of the Cr.P.C. It is the above order of acquittal challenged in this Crl.revision petition. 4. I have heard Sri.T.K.Venugopalan, learned counsel appearing for the revision petitioner and the Public Prosecutor. 5. Learned counsel for the revision petitioner submitted that one more opportunity may be granted to the revision petitioner to adduce evidence, for which, after setting aside the order of acquittal, the matter may be sent back to the trial court. It is also pointed out that PW1 sustained two injuries in the alleged incident. 6. The prosecution case is that on 23.3.2008, at about 9.30 p.m. in front of the General Hospital, Pathanamthitta, the accused persons, five in number, in furtherance of their common intention wrongly restrained the de facto complainant/revision petitioner and caused hurt to him. The persecution is also specific that the hurt was caused at the instance of first accused by beating with a stick causing Crl.R.PNO.370 of 2010 :-4-: injury on his face including loss of two incisors and the further allegation is that accused Nos.2 to 5 dragged the de facto complainant away from the scene and thereafter beat him and fisted him causing pain and also kicked him at his lower abdomen. The allegation continues that the accused has committed the mischief causing loss of two sovereign of gold chain worn by CW1. 7. To prove the above incidents, three witnesses were cited by the prosecution as charge witnesses, out of which the wife of the petitioner alone who was shown as CW2 in the charge appeared before the court below and examined as PW1. In the impugned order, the learned Chief Judicial Magistrate has elaborately considered the evidence of PW1, who is none other than the wife of the de facto complainant, who claimed to have witnessed the incident. According to her testimony, the incident was not taken place in front of the General Hospital as shown in the mahazar as well as F.I.statement. According to her, it was in front of AVG Crl.R.PNO.370 of 2010 :-5-: Motors which is 300 metres away from the hospital. She had also deposed that she came to the spot on hearing the cry of her husband. She further deposed that accused beat PW1 with sticks in front of AVG Motors. Thus, through the evidence of PW1, place of incident was shifted from the front side of the General Hospital, Pathanamthitta to the front of the AVG Motors which is situated about 300 metres away from the said Hospital. It has also come out in evidence that by the time PW1 reached the spot, the assailants already left the spot. So, according to the trial court, the evidence of PW1 is totally against the prosecution case and there is absolutely no material or evidence to prove the overt act of the accused. Under the above circumstances, the trial court found that there is no material to prove the fact that the accused, in furtherance of their common intention, voluntarily caused hurt to CW1 and also to prove the allegation that CW1 was restrained by the accused and the accused persons committed the mis-chief. Crl.R.PNO.370 of 2010 :-6-: I find no reason to interfere with the above finding arrived on by the court below. From the above factual position of the case, even if the other charge witnesses are examined, there is no scope for improving the position of the prosecution, since PW1 claimed to be the eye witness, gave an entirely different version with respect to the place of occurrence and overt act alleged. 8. The learned counsel submitted that no summons were served on the revision petitioner and hence, he could not appear before the court below. It is a fact that PW1 has received summons and she had appeared before the court below and deposed giving evidence for the prosecution. So it cannot be presumed for a while that the revision petitioner was not aware of the schedule and commencement of the trial. If he was so interested, he could have appeared before the court in time and he could have adduced evidence, if any. Even if the revision petitioner could not appear before the court in time, he Crl.R.PNO.370 of 2010 :-7-: could have approached the court by engaging a lawyer seeking adjournment of his examination or he could have resorted to whatever method available as per law and procedure, but he did not make any attempt in this regard. Under the above facts and circumstances, the request of the learned counsel on behalf of the revision petitioner for remanding the matter by granting him an opportunity cannot be allowed and especially, when the respondents/accused got an order of acquittal, after undergoing an ordeal of trial. As such the revision petitioner has miserably failed to make out a case to interfere with the above order of acquittal. In the result, there is no merit in the Crl.R.P. and it is accordingly dismissed. SD/- V.K.Mohanan, Judge MBS/ TRUE COPY P.A.TO JUDGE Crl.R.PNO.370 of 2010 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 ------------------------------------ -------- Crl.R.PNO.370 of 2010 :-9-: O R D E R DATED: -10-2009 Crl.R.PNO.370 of 2010 :-10-: