IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 CRL.A.No. 92 of 2002() ---------------------- CC.176/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT/COMPLAINANT: -------------------------- JOHNY, S/O. POZHOLIPARAMBIL LONA, PULLUR. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS/ACCUSED & STATE: --------------------------- 1. MOHANAN, S/O. KOKKAT PENGAN, KADUPPASSERI, THRISSUR DISTRICT. 2. BHASKARAN, S/O. KOKKAT PENGAN, KADUPPASSERI, THRISSUR DISTRICT. 3. MANI, W/O. BHASKARAN, KADUPPASSERI, THRISSUR DISTRICT. 4. PUSHPAN, S/O. PUTHENCHIRAKARAN PARAMU, KADUPPASSERI, THRISSUR DISTRICT. 5. AMBUJAKSHAN,S/O.PUTHENCHIRAKKARAN PARAMU, KADUPPASSERI, THRISSUR DISTRICT. 6. VALLIYAMMA,W/O.PORATHUKARAN VELAYUDHAN, KADUPPASSERI, THRISSUR DISTRICT. 7. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.BINOY RAM FOR R1TOR6 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.A.No.92 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2008 JUDGMENT Appellant is the complainant in a private complaint filed against respondents 1 to 6 herein alleging commission of the offence punishable under Section 326 read with Section 34 I.P.C. The trial court, after considering the oral and documentary evidence on record, passed an order acquitting the accused. Hence, this appeal. 2. The case of the appellant/complainant was that on July 20, 1993 at about 6 p.m, the accused had formed themselves into an unlawful assembly in prosecution of their common object and caused grevious hurt to the appellant by beating him with a wooden stick. The appellant had allegedly sustained a fracture on his scalp and also lost two teeth on the upper jaw. 3. Appellant was examined as PW1 and his witnesses were examined as PWs 2 and 3. Ext.P1 wound certificate was also marked on the side of the complainant. There was no 2 Crl.A.No.92/02 oral or documentary evidence on the side of the defence. 4. PW1 in his deposition had stated that the accused had beaten him with a stick on his skull resulting in fracture. He had spoken about the overt act of each one of the accused. PW2, who was stated to be an eye witness to the incident, had also spoken about the alleged assault made by the accused. Learned Magistrate noticed that the version given by PWs 1 and 2 were totally inconsistent and unreliable and therefore, no reliance was placed on the evidence given by these two witnesses. It was also noticed by the learned Magistrate that the police had registered a case against the appellant on the charge that he had attacked the accused in this case. The said counter case ended in acquittal of the appellant. 5. Smt. Maya, learned counsel for the appellant, has sought to place reliance on the evidence of PW3, the doctor. It is true that the appellant had sustained some injuries in the alleged incident. But, since evidence of Pws 1 and 2 did not inspire any confidence in the court below, the accused were acquitted. After going though the deposition of the 3 Crl.A.No.92/02 witnesses in this case, I am unable to hold that the court below had committed any error in acquitting the accused. There is no material illegality or irregularity in the finding entered by the learned Magistrate, who had had the privilege of watching the demeanour of the witnesses and to consider the counter case which ended in acquittal. In any view of the matter, I do not find any reason to interfere with the order of acquittal. 6. But, Smt. Maya, learned counsel, has made an impassioned plea to quash the proceedings initiated against the appellant under Section 250 of the Code of Criminal Procedure. In the peculiar facts and circumstances of the case, I am satisfied that the direction issued by the learned Magistrate in the impugned judgment to initiate prosecution against the appellant under Section 250 Cr.P.C is liable to be set aside. I do so. However, the order of acquittal is confirmed. The Criminal Appeal is disposed of in the above terms. (A.K.BASHEER, JUDGE) cl 4 Crl.A.No.92/02 A.K.BASHEER, J. CRL.A.No.92 OF 2002 JUDGMENT 9th December, 2008