IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Crl.Rev.Pet.No. 1875 of 2009() ------------------------------ CRA NO.350/2006 OF II ADDITIONAL SESSIONS COURT, PALAKKAD CC.383/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ------------------------------- 1. RAMESH, S/O. VELAYUDHAN, RESIDING AT MOOCHIKOOTTATHIL VEEDU, ANAKKARA, MUNDARAKKODU, PALAKKAD DISTRICT. 2. SANTHOSH, S/O. VASU, RESIDING AT KOTHARAVALAPPU VEEDU, MUNDARAKKODU, ANAKKARA, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.A.R.NIMOD RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, TRITHALA POLICE STATION, THRITHALA, PALAKKAD. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1875 of 2009 -------------------------------------- Dated this the 7th day of August, 2009. ORDER This revision is in challenge of judgment of learned Sessions Judge, Palakkad in Crl.Appeal No.350 of 2006 confirming conviction and sentence of petitioners for offences punishable under Sections 452, 341 and 324 read with Section 34 of the Indian Penal Code (for short, “the Code”). Petitioners are aggrieved and have come up in revision. 2. Case is that on 31.12.2002 at about 11 p.m. petitioners in furtherance of their common intention trespassed into the house of PWs 1 and 2, wrongfully restrained PW2, voluntarily caused hurt to him with MO1, iron rod and criminally intimidated him with death. PW4 examined PW1 at Government hospital on 1.1.2003 at 2 a.m. and issued Ext.P2. Evidence is that petitioner had suffered two contusions on the face and had complaint of pain over the body. He came with the history and alleged cause of injury as wrongful restraint by Ramesh (petitioner No.1) and assault by Santhosh (petitioner No.2). PWs 1 to 3 gave evidence regarding the alleged incident. The defence version is that DW1, unmarried sister of PWs 1 and 3 had strained relationship with PWs 1 and 3 and others and she was driven out of the tharawad house. She acquired a small plot, set up a small house and started residence there with the help of the local people. To make out a livelihood she was going to work in local houses Crl.R.P.No.1875/2009 2 including of petitioner No.2. During this period she also made an attempt to get her family properties partitioned by filing a suit. PWs 1 and 3 and others thought that DW1 had illicit relationship with petitioner No.2. On 31.12.2002 at about 10.30 p.m. PW1 smashed the water pipe from which DW1 was drawing drinking water. This was resisted by her. Local people questioned the act of PW1 and there was some commotion. Hearing that, petitioner No.2 came there. He was assaulted by PW1 and others for which there is a case pending against PW1 and others as C.C.No.45 of 2005. As a counter blast at the influence of PW1 this case was initiated against the petitioners. DW1 gave evidence in that line. She has a further case that PW1 and others had assaulted her on 27.12.2002 for which she was hospitalized. Ext.D1 is a copy of the complaint she allegedly preferred to the District Collector, Palakkad referring to the highhanded act of PW1 and others. She claimed that she was assaulted and she had to be admitted in the hospital. Alleging that police did not properly investigate the case she filed Ext.D2, complaint to the Sub Inspector, Thrithala. 3. Regarding the alleged incident, evidence comes only from PWs 1 to P3. PW1 is the alleged victim and PW2 is his wife. PW3 is the brother of PW1. It is true that in cases of this nature when the incident allegedly occurred in the house of victim in the night normally witnesses from the neighbourhood need not be expected. Here is a case PW5, investigation officer candidly admitted that though there are several dwelling houses near the place of occurrence he had questioned only the relatives of PW1. It is not shown why investigation was confined to the relatives of PW1 alone. That means no Crl.R.P.No.1875/2009 3 attempt was made to enquire whether the neighbours who are not related to PW1 had witnessed the incident. PW1 has admitted that himself and brothers are accused in C.C.No.45 of 2005 for allegedly assaulting the petitioners. It is also admitted by him that himself and others scolded and even harassed petitioner No.2 (on the allegation of his having illicit intimacy with DW1, their sister). In other words it is admitted that there was enimity between PW1 and others and petitioner No.2 and others. It is said that enimity is a double edged weapon. DW1 has given evidence regarding the incident which allegedly occurred at the water pipe on 31.12.2002 at about 10.30 p.m. in which PW1 and others allegedly assaulted petitioner No.1 and others. On the materials on record, that version of DW1 cannot be said to be false. At any rate PW5, investigation officer was not able to speak anything about the alleged incident in which petitioners are said to have been assaulted by PW1. It would appear from the statement of PW1 and the evidence that he even made an attempt to get the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short, “the Act”) attracted by stating that petitioners had insulted him by calling caste name. Ext.P4 is the report submitted by PW5 to delete the offence under the provisions of that Act. It is also to be noted that though according to PWs 1 and 2, petitioner No.2 assaulted PW1 with an iron rod which is a blunt weapon, the injuries allegedly suffered by PW1 and noted in Ext.P2 are only two contusions on the face. On going through the evidence on record I am inclined to think that the possibility the incident occurring in the manner stated by petitioners and DW1 cannot be ruled out. If that be so I have Crl.R.P.No.1875/2009 4 to hold that prosecution has failed to prove the case beyond reasonable doubt by acceptable evidence. As such petitioners are entitled to the benefit of doubt. Resultantly, this revision petition is allowed. Judgments under challenge are set aside and petitioners are acquitted of the charges found against them. THOMAS P.JOSEPH, Judge. cks