IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 Crl.Rev.Pet.No. 3675 of 2009() ------------------------------ CC.711/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER/DEFACTO COMPLAINANT ----------------------------------------- ELIYAMMA, AGED 55 YEARS, D/O. KURIAN, PALLITHAZHATHU VEETTIL, NAMAKKUZHI, PIRAVOM VILLAGE, MULAMKULLAM NORTH. BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENTS/RESPONDENTS. --------------------------- 1. SAJAN, AGED 47 YEARS, S/O. JOSEPH, ILLICHOTTIL VEEDU, MULAKULAM NORTH KARA, PIRAVOM VILLAGE. 2. SHYJU, AGED 43 YEARS,S/O. PARAMESWARAN, NADATHOTTATHIL, PERIYAPPURAM, MULAKULAM NORTH KARA PIRAVOM VILLAGE. 3. RIJO THOMAS, AGED 41 YEARS, S/O. THOMAS, ANGADIYATHU, MULAKULAM NORTH KARA, PIRAVOM VILLAGE. 4. ULLAS, AGED 44 YEARS, S/O. JOY, POOKKOTTIL, MULAKULAM NORTH KARA, PIRAVOM VILLAGE. 5. VAKKAN, AGED 47 YEARS, S/O. MATHAI, ANGADIYATHU, MULAKULAM NORTH KARA, PIRAVOM VILLAGE 6. T.D.PAULOSE, AGED 78 YEARS, S/O. DEVASIA, IDIYAMPARAMBIL, MULAKULAM NORTH KARA, PIRAVOM VILLAGE. 7. SUNNY, AGED 54 YEARS, S/O. KURIAN, PALLITHAZHATHU VEEDU, PERIYAPURAM, MULAKULAM NORTH KARA, PIRAVOM VILLAGE. 8. STATE OF KERALA, REPRESENTED BY PUBLIC PRSECUTOR. CRRP. 3675/2009 2 R8 BY PUBLIC PROSECUTOR SRI. C.S. HRITHWIK R1 TO R7 BY SRI.PAUL K.VARGHESE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K. MOHANAN, J. --------------------------------------- Crl. R.P. No. 3675 of 2009 --------------------------------------- Dated this the 30th day of January, 2010 O R D E R Aggrieved by order of acquit passed by trial court under section 248 (1) CrPC in CC No. 711/2004, the defacto complainant preferred this Criminal Revision Petition. 2. The allegation against the accused is that they formed themselves into an unlawful assembly and in prosecution of their common object trespassed into the pathway leading to the house of the defacto complainant and destroyed the pathway by using JCB on 06/04/2004 at 6.45 pm and when the same was questioned by the defacto complainant, the first accused threatened her by showing an iron rod and beaten on her left palm, dragged her by caught on her hand and by using JCB removed the granite stone and constructed a new kayyala adjacent to Crl.RP 3675/2009 2 the property of 1st accused and thereby caused damages to the tune of Rs. 18,000 to Cw1. 3.On the basis of the informations furnished, Crime No. 65/2004 was registered in the Piravam Police Station for the offfences punishable under Sections 143, 147, 427, 324, 506(ii), 354, read with 149 IPC. After investigation the police filed a report based on which cognizance was taken and CC 711/2004 was instituted in the Court of Judicial First Class Magistrate, Muvattupuzha. During the trial PWs 1 to 4 were examined and Exhibits P1 and P2 were marked from the side of the prosecution. The accused denied all the incriminating circumstances when they were examined under Section 313 CrPC. The definite case raised by the defence is to the effect that it was a false case charge sheeted against them at the instance of PW1 who was working as the Dy.SP. When PW1 was examined, she had deposed in support of the prosecution case and marked Exhibit P1. Another witness cited and examined by the prosecution is PW2 Crl.RP 3675/2009 3 who is none other than the brother of PW1. PW3 is the Doctor who examined PW1 and issued Exhibit P2 wound certificate. PW4, is the Head Constable who recorded the Exhibit P1 FI Statement. 3. After a close scrutiny of the evidence and the materials on record, the trial court has found that the evidence adduced by the prosecution is not at all sufficient to prove the allegation against the accused beyond any reasonable doubt, and accordingly, the accused were acquitted under Section 248 (1) CrPC. I have carefully perused the impugned judgment. It is an admitted fact that various Civil disputes are pending between the defacto complainant, PW1 and the accused. The 7th accused in this case is the brother of the defacto complainant, PW1 and PW2. It is also brought on record that at the time of the alleged incident, a Civil suit filed by the accused as OS No. 166/04 was pending before the Munsiff Court, Muvattupuzha. In the suit specific allegation is that PW1 attempted to create a pathway Crl.RP 3675/2009 4 after trespassing into the North Eastern portion of her property. Learned Magistrate subsequently found that when a question was put to PW1 with respect to the Civil suit and incident, she pretended as not remembering the same. 4. According to PW1, the alleged incident took place at about 6.45 pm when she was coming back after attending her official duty at about 6.45 pm. If that be so, the incident might have been witnessed by neighbours, and none of the neighbours were cited and examined to prove the incident though PW1 had claimed that the incident was witnessed by neighbours. According to Pw1, her mother also witnessed the incident but she was not cited and examined. But only PW2 her brother was cited and examined and had given evidence fully supporting PW1. Thus there is no independent evidence to corroborate the version given by PW1 and PW2, who are relatives. Since civil disputes are pending between the prosecution witnesses and accused, it was incumbent Crl.RP 3675/2009 5 upon prosecution to produce independent witness and to prove the alleged incident beyond reasonable doubt. 5. The trial court found that the Medical evidence is not so supporting the prosecution allegation with respect to the incident. Even though PW1 has claimed that she was attacked by using iron rod, according to PW3, injury was only two minor abrasions on the index finger and left middle finger and she has not noted any injury on the palm of PW1. So the Medical evidence is not supporting so as to tally with the allegation of Pw1. 6. The most important failure on the side of the prosecution is that the police officer who conducted investigation did not turn up for giving evidence inspite of repeated processes. Thus it can be seen that after a close scrutiny of the evidence and materials on records the trial court found that the prosecution has failed to prove the case against the accused beyond reasonable doubt. 7. In the light of the above facts and circumstance Crl.RP 3675/2009 6 and the shabby nature of evidence, I find no illegality irregularity with respect to the order passed by the court below. In the result there is no merit in the revision petition and accordingly the same is dismissed. V.K. MOHANAN, JUDGE rkc