IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 178 of 2004() ----------------------------- CC.188/2000 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S): DEFACTO COMPLAINANT ---------------------------------------- PUTHEN PURAYIL VELAYUDHAN, S/O.CHATHU, BUNGLAW PARAMBA, P.O.ARTS COLLEGE, KOZHIKODE-18 BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. GOPINATHAN, S/O.KRISHNAN NAIR, GAYATHRI NIVAS, KKARINKALI KALIL, BEYPORE. 2. PRADEEP KUMAR, S/O.KRISHNAN KUTTY, CHANDRATHIL PARAMBA, NORTH BEYPORE. 3. SHASI, S/O.VASU, EDACHERY PARAMBA, NORTH BEYPORE. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.R.SUDHISH FOR R1 TO 3 SMT.M.MANJU FOR R1 R4 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.178 OF 2004 --------------------------------------------- Dated 12th August, 2010 O R D E R De facto complainant in C.C.188/2000 on the file of Judicial First Class Magistrate-V, Kozhikode filed this revision challenging the acquittal of respondents 1 to 3 for the offences under Sections 447 and 427 read with Section 34 of Indian Penal Code under Section 255(1) of Code of Criminal Procedure. Prosecution case is that at about 12 mid night of 15/12/1999, respondents 1 to 3 trespassed into the property of PW1 in survey No.246/11 of Naduvattom village and demolished the compound wall for the purpose of widening the pathway and caused a damage of CRRP 178/04 2 Rs.8,000/- and committed the offences. Respondents 1 to 3 pleaded not guilty. Prosecution examined ten witnesses and marked three exhibits and identified Mos.1 and 2. On the side of accused DW1 was examined and Ext.D1 was marked. Learned Magistrate on the evidence found that the prosecution case cannot be believed as according to Pws.2 to 4 the eye witnesses, first respondent along with respondents 2 and 3 demolished the compound wall and evidence of DW1 the doctor shows that first respondent was admitted as an inpatient in the hospital on that night and therefore, evidence of Pws.2 to 4 cannot be relied on. Argument of the learned counsel appearing for the petitioner is that Ext.D1 is a fabricated document and learned Magistrate should not have relied on Ext.D1 and accepted the alibi. It was argued that even if first respondent was CRRP 178/04 3 admitted as inpatient, he could be present at the scene of occurrence and therefore, learned Magistrate was not justified in acquitting respondents 1 to 3. 2. Incident was allegedly at 12 mid night on 15/12/1999. Ext.P1 FI statement of PW1 was recorded on 16/12/1999 at 10.30 a.m. Evidence of PW1 with Ext.P1 shows that PW1 got the information from PW2, when PW2 intimated PW1 over phone on the early morning of 16/12/1999. Prosecution case depends on the trustworthiness and credibility of Pws.2 to 4 who claim to have witnessed the incident. PW2 is an autorickshaw driver. According to the evidence of PW2 while he was proceeding along the road, he found the three accused demolishing the compound wall and on the next day morning he intimated the fact to PW1. If PW2 is to be believed, he found the first CRRP 178/04 4 respondent demolishing the compound wall and respondents 2 and 3 removing stones from the scene. If in fact PW2 had witnessed the incident and had thought it necessary to inform PW1 in the early morning, he would have definitely informed PW1 immediately on seeing the incident. On going through the evidence of PW2 I find his evidence not trustworthy. 3. Evidence of PW3 is that he witnessed the incident and watched the scene for some time and went back. His evidence shows that he has a grievance that accused had demolished his compound wall also. It cannot be believed that PW3 would be watching the incident at 12 midnight, when had not given any reason for coming out of the house to see the incident. He has no case that he heard the sound and came out and witnessed the act of demolishing the compound wall. So also, if PW3 CRRP 178/04 5 had witnessed the act of demolishing the compound wall of PW1 and that too for widening the pathway he would have definitely expected demolition of his compound wall also and if so, he would not have kept quiet and allowed demolition of his compound wall. It is therefore clear that PW3 is not deposing the truth. 4. PW4 claimed that hearing the sound he came out along with his father and found the three accused demolishing the compound wall. When version of PW2 is that accused was having only crow bar, evidence of PW3 is that two of the accused were having pick-axe and the other was having a crow bar. According to PW4 also accused were having pick axe, with which they demolished the compound wall. From the evidence of PW4 it is clear that he also did not witness the incident. CRRP 178/04 6 5. Added to this, evidence of DW1 establish that first accused was admitted as an inpatient in the hospital on the same night at 8.30 p.m and was discharged only on the next day. Though it was argued that Ext.D1 is a forged record, when DW1 the doctor was examined there was no such case. DW1 was cross examined only with regard to the identity of the patient shown in Ext.D1 and not that no patient as stated in Ext.D1 was admitted or that the said patient was not in the hospital on that night or till he was discharged on the next day. DW1 deposed that he had known first respondent even earlier and therefore, he could identify the patient treated shown in Ext.D1 as the first respondent. Evidence of DW1 is trustworthy. 6. In such circumstances, on the evidence learned Magistrate was justified in holding that first respondent would not have CRRP 178/04 7 been there in the scene of occurrence demolishing the compound wall as he was treated as an inpatient. If the case against the first respondent is disbelieved the entire case against other accused also cannot be believed. In any event, on appreciating the entire evidence, the view taken by the learned Magistrate is perfectly a possible view. Hence the order of acquittal is legal and warrants no interference. Revision fails and it is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.