IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 Crl.Rev.Pet.No. 552 of 2002(B) ------------------------------------------ CC.NO.361/1997 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVISION PETITIONER/ DEACTO COMPLAINANT: ----------------------------------------------------------------------- K.BALATHARAKAN S/O.KANNATHARAKAN, KODIKANNATH HOUSE,EDATHANATTUKARA, VATTAMANNAPURAM P.O.,MANNARKKAD TALUK, PALAKKAD DISTRICT. BY MR. P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE, ADV. MR. T.SETHUMADHAVAN. RESPONDENTS/ ACCUSED AND THE COMPLAINANT: ---------------------------------------------------------------------------- 1. SETHUMADHAVAN S/O.APPUTHARAKAN, INIKKOTTIL HOUSE,EDATHANATTUKARA, VATTAMANNAPURAM P.O.,PALAKKAD DISTRICT. 2. VASUDEVAN, S/O.SANKUNNI THARAKAN, KIZHAKKETHIL HOUSE,EDATHANATTUKARA P.O., PALAKKAD DISTRICT. 3. ASOKAN,43/96,S/O.GOPALAN,NEAR MOOCHIKAL SCHOOL,EDATHANATTUKARA.P.O.,PALAKKAD DISTRICT. 4. VENUGOPALAN,24/96,S/O.GOPALAKRISHNAN, PALAKKAL HOUSE,EDATHANATTUKARA, VATTAMANNAPURAM P.O.,PALAKKAD DISTRICT. 5. SIVASANKARAN @ MANI,42/96, S/O.KUTTATHARAKAN,PALAKKAL HOUSE, EDATHANATTUKARA. 6. KUTTAN @ KABNNADASAN, S/O.KRISHNAN KUTTY THARAKAN, KARYATTUKUZHI HOUSE,EDATHANATTUKARA. CRL.R.P.NO.552/2002-B: 7. DAMODARAN S/O.KRISHNANKUTTY THARAKAN, 27/96,KARYATTUKUZHI HOUSE,EDATHANATTUKARA. 8. SANKARAN,32/96,S/O.CHAMY, AYINIKKOTTIL HOUSE,EDATHANATUKARA. 9. P.GANGADHARAN, 51/96 S/O.VELU NAIR, POOLAKKAL HOUSE, EDATHANATTUKARA P.O., PALAKKAD DISTRICT 10. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R.10. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA, R1 TO R9 BY ADVS. MR. P.VIJAYA BHANU, MR.TONY MATHEW. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.552 OF 2002 (B) ----------------------------------- Dated this the 26th day of March, 2009 O R D E R The revision is filed by the defacto complainant questioning the judgment of acquittal rendered in favour of the accused, nine in number, who had been prosecuted for the offences punishable under Sections 143, 147, 447 and 427 read with Section 149 of the Indian Penal Code. The accused after trial, were found not guilty by the learned Magistrate, and, therefore, they were acquitted of the offences imputed. Questioning the legality, propriety and correctness of the acquittal passed in favour of the accused, the revision has been filed. 2. I heard the learned counsel for the revision petitioner/defacto complaint and the learned Public Prosecutor. The materials produced in the case have not been appreciated in the proper perspective and the acquittal has CRL.R.P.552/02 2 caused miscarriage of justice, is the submission of the learned counsel for the revision petitioner/defacto complainant. Criminal trespass over the property of the defacto complainant and extensive damages caused by the accused, as members of an unlawful assembly, as alleged in the case, is amply proved by the evidence of PWs.1 and 2, but their evidence was misappreciated by the learned Magistrate, submits the counsel. I have perused the records of the case. I find that within the narrow scope of the revisional jurisdiction, the challenge raised as to misappreciation of evidence by the learned Magistrate has to be examined. It is trite law that in exercise of revisional jurisdiction finding entered by the inferior court is not liable to be interfered with unless it is shown to be perverse and could not have been formed on the materials produced in the case. In examining the materials, bearing in mind the above principle, I find that the conclusion framed by the learned Magistrate after appreciating the evidence cannot at all be formed part with. The incident involved in the case is alleged to have taken place at midnight, and the version of the defacto complainant is that while he came out of his house to attend call of nature he noticed torch lights in the plantation, and thereby he detected the incident. CRL.R.P.552/02 3 Along with his servant PW2, he went over to the spot where the light was seen and then saw nearly thirty persons causing damages in his property. Strangely enough in his evidence, PW1, the defacto complainant, has not identified any of the accused prosecuted as among the members of the unlawful assembly, leave alone that no overt act against any of the accused was mentioned in his evidence. What is seen is that an omnibus statement that thirty persons were involved in committing of damages, and among them the accused were also present. In cross examination, PW1 also stated that he could not identify the persons by the light shed from his torch. He also did not raise any voice when such damages were caused in his property. How far his version is believable has to be evaluated with reference to his assertion that he saw the perpetrators using sword to cut down the plantation. He could identify the weapon used but not the overt act of any accused or the identity of any of them specifically, has to be taken into account the inappreciating of his evidence. If that be the evidence of PW1, the version of PW2 is more strange. Normally, he did not reside in the house of the defacto complainant, but, occasionally, he stayed there. According to PW2, when he accompanied PW1 to the plantation at night, he CRL.R.P.552/02 4 saw a group of persons causing the damages. The version of PW2 is that about 10 to 15 persons were involved in the occurrence. He would state that A1, A5 and A8 were among those involved. The learned Magistrate when recorded his evidence, found his testimony unreliable. After going through his evidence, I find no reason to differ with the conclusion formed by the learned Magistrate. 3. The prosecution has not established that any of the accused was guilty of the offences imputed against them, and that being so, the judgment of acquittal rendered in their favour cannot be found fault with. The revision is devoid of merits, and hence, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.552 OF 2002 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 26th March, 2009