IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 Crl.Rev.Pet.No. 148 of 2001() ----------------------------- CRA.83/1999 of SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER/DEFACTO COMPLAINANT: --------------------------- AUGUSTINE, PATHIYANKATTU, AROOR. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS/ACCUSED NO.1: --------------------- 1. AUGUSTINE @CHALA AUGUSTINE, S/O.ANTONY, DEVASWOM CHIRA VEEDU, WARD NO.2, AROOR PANCHAYAT, ARROR VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.RAVEENDRANATH FOR R1 SRI.KENNETH GEORGE FOR R1 PUBLIC PROSECUTOR, SRI.JAI GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.06.2008, THE COURT ON 04/06/2008 PASSED THE FOLLOWING: A.K.BASHEER, J. ---------------------------------- Crl. R.P.No.148 OF 2001 ---------------------------------- Dated this the 4th day of June, 2008 O R D E R ~~~~~~~~ This revision petition is at the instance of the defacto complainant in a case charge sheeted by the police against respondent No.1 herein alleging commission of offences punishable under Section 447, 427 and 506 (ii) of the Indian Penal Code. 2. The trial court found the respondent No.1/accused guilty of the offences alleged against him. He was accordingly convicted and sentenced to undergo simple imprisonment for three months under Section 427 I.P.C. He was also sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.3,000/- and in default to suffer simple imprisonment for three months under Section 447 I.P.C. But he was acquitted of the offence under Section 506(ii) I.P.C. 3. In appeal, the learned Sessions Judge reversed the order of conviction and sentence and acquitted the accused. The said order of acquittal is impugned in this revision petition. Crl.R.P.No.148/2001 2 4. The prosecution case in brief was that, on 20.1.1996 at about 3.15 p.m. respondent No.I/accused had, on account of his previous enmity towards the defacto complainant (CW1), and with the intention to commit mischief and criminal intimidation, trespassed into the residential property of the defacto complainant and cut down three coconut saplings aged four years. The accused had also cut down around twenty plantains and four teak plants aged about five years. The total loss was assessed at Rs.5,000/-. 5. The prosecution had examined PW1 to PW7. Exts.P1 to P3 and M.Os 1 to 3 were also marked on its side. DW1 was examined on the side of the defence. 6. The learned Magistrate after a careful and elaborate consideration of the oral and documentary evidence on record held that the prosecution had succeeded in proving the charge against the accused under Section 447 & 427 of I.P.C. But he was acquitted of the charge under Section 506 (ii) I.P.C. Crl.R.P.No.148/2001 3 7. However, the learned sessions judge took the view that the evidence of PWs 2 to 4 ought not have been relied on by the trial court. PW2 was the defacto complainant. Admittedly, he was not present at the scene of occurrence when the accused had allegedly trespassed into the residential compound and caused the damage to the various plants referred to above. PW2 had lodged the complaint before the police, on the basis of which Ext.P3 F.I.R was registered. It had come out in evidence that PW2 had given the first information statement before the police at 8 p.m., after he came back to his residence. 8. PW4, the wife of PW2 had given an accurate description of the incident that took place in her residential compound. She had categorically stated that the accused had come to her residence at about 3.15 p.m. and asked whether her husband was at home. She stated that the accused had been carrying a chopper with which he cut the coconut saplings and other plants. A perusal of the deposition of PW2 will undoubtedly show that she had described the incident rather flawlessly. But the learned Sessions Judge chose to disbelieve Crl.R.P.No.148/2001 4 PW4 labeling her as an interested witness. In my view, the learned sessions judge was not justified in discarding the evidence of PW4 on the above reasoning. 9. It was further observed by the learned Sessions Judge that no neighbours were examined, who according to PW2 and PW4 had also witnessed the incident. But the learned Sessions Judge failed to notice that PW3 was the immediate neighbour who deposed that he had seen the accused cutting down the plants after trespassing into the residential compound of PW2. PW3 had gone to the scene of occurrence on hearing the cries of the children of PW2. Though this witness had not given any description of the plants accurately I am of the view that his evidence could not have been brushed aside lightly. I do not propose to deal with the entire evidence at length in view of the order I propose to pass. 10. Having heard learned counsel for the petitioner and having perused the materials available on record, I have no hesitation to hold that the learned Sessions Judge was not Crl.R.P.No.148/2001 5 justified in interfering with the order of conviction in a very casual manner. As rightly pointed out by the learned counsel for the petitioner, the evidence of the material witnesses was not properly considered or discussed by the learned Sessions Judge. 11. Having regard to the entire facts and circumstances, I am satisfied that the order passed by the learned Sessions Judge is liable to be reversed. I do so. The Criminal Revision Petition is allowed. The appellate court shall reconsider the matter afresh and pass appropriate orders, in accordance with law, after affording opportunity of hearing to the accused and the prosecution. The appellate court shall dispose of the case, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. (A.K.BASHEER, JUDGE) ps Crl.R.P.No.148/2001 6 A.K.BASHEER,J. =================== Crl.R.P.No.148 OF 2001 =================== O R D E R DATED 4TH JUNE 2008 ===================