IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 CRL.REV.PET.NO. 1378 OF 2008() ------------------------------ SC.172/2007 OF ADDL.SESSIONS COURT (ADHOC), KOTTAYAM .................... REVN. PETITIONER(S): PW2-DEFACTO COMPLAINANT --------------------------------------------------------------------------- BENNICHAN ABRAHAM, AGED 28 YEARS S/O.KORA ABRAHAM, ANAKKARA VILLAGE KATTAPPANA TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): ACCUSED & STATE ----------------------------------------------------- 1. RAJESH, S/O.GOPALAKRISHNAN KUDAMALOOSSERY HOUSE, THAMPALAKKADU KARA KANHIRAPPALLY VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1378 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of June, 2009 O R D E R -------------- De-facto complainant, P.W.2 has come up in revision challenging the acquittal of respondent No.1 for offences punishable under Sections 323, 506(ii), 458 and 308 IPC (for short, “the Code”), under Section 235(1) of the Code Criminal Procedure. Case is that on 12.1.2007 at about 8.30. p.m. respondent No.1 trespassed into R.K. Latex building with intend to cause the death of petitioner, beat him on the head with M.O.1, iron rod which he ward off and when he tried to resist, the accused squeezed and pressed his penis and testis. Prosecution examined P.Ws.1 to 7 and marked Exts.P1 to P9 and M.Os.1 and 2. Respondent No.1 claimed that he has been Vice President of the Grama Seva Sangham formed to fight pollution from the factory and the Sangham had conducted several protest and on account of that owners of the factory were enmical towards him. On the date of incident at about 10.00 p.m. petitioner and P.Ws.3 and 4 assaulted him near the factory premises. Respondent No.1 examined D.Ws.1 to 6 and proved Exts.D1 to D11. Learned Additional Sessions Judge found that the case of prosecution is not believable, possibility of the incident occurring in the manner stated by respondent No.1 CRL. R.P. No.1378 of 2008 -: 2 :- cannot be ruled out and accordingly acquitted respondent No.1. 2. It is the settled position of law as to exercise of revisional jurisdiction against acquittal that interference is called for only when the decision of the trial court involved glaring injustice due to violation of any fundamental principles of law, or defect of procedure or it has resulted in miscarriage of justice. My endeavour in this case is to find whether any such circumstance has occasioned on the facts of the case. 3. According to the prosecution, alleged incident occurred in the room of the petitioner (P.W.2) in the R.K. Latex building where he was allegedly sleeping at the time of the incident. On hearing sound of back door being opened, petitioner woke up and at that time respondent No.1 entered the room and assaulted him with M.O.1, iron rod. He also referred to the subsequent portion of the alleged incident. P.Ws.3 and 4, also employees of the factory allegedly sleeping in the adjoining room claimed that they heard the cry of petitioner, reached there and tried to save petitioner from the clutches of respondent No.1. P.W.1, medical officer examined petitioner and P.Ws.3 and 4 on the day of the incident at 11.00 p.m. and issued Exts.P1 to P3. Exhibits P1 to P3 show only some CRL. R.P. No.1378 of 2008 -: 3 :- tenderness and reddishness on the body of P.Ws.2 to 4. Against that evidence respondent No.1 gave evidence as D.W.6 and testified to his case. To prove that he was the Vice President of the Grama Seva Sangham which was in constant agitation against the pollution from the factory respondent examined D.W.s 1 and 4. D.W.1 is another office bearer of the Sangham and D.W.4 is the Priest of the local church. Their evidence is that seminars had been organised with the active participation of respondent No.1 against pollution from the factory even on 26.1.2007. According to respondent No.1 he was assaulted by petitioner and P.Ws.3 and 4 at the junction on the day of the incident at about 10.00 p.m. D.W.3 examined respondent No.1 at KVMS hospital, Ponkunnam on 13.1.2007 at about 12.05 a.m. and issued Ext.D5. Exhibit D5 would show that respondent No.1 also sustained some minor injuries. D.W.2 claimed that she had undergone treatment in a clinic at Anakkallil along with respondent No.1 and she had seen respondent No.1 in that clinic on the day of the incident till 9.15 p.m. She was examined to show that respondent No.1 was not at the place of incident at the time when the alleged incident occurred at 8.30 p.m in the latex factory. Exhibit D8 is the medical prescription issued to D.W2. Learned Additional Sessions Judge found that her CRL. R.P. No.1378 of 2008 -: 4 :- evidence is quite probable. Exhibit D10 shows that regarding the alleged assault on respondent No.1 by petitioner and P.Ws.3 and 4, he had given first information to the Head Constable of Kanjirappally police station on 13.1.2007 at about 1.00 p.m. Learned Additional Sessions Judge referred to the material contradictions in the evidence of petitioner and P.Ws.3 and 4 which according to the learned Additional Sessions Judge are material. According to the petitioner he saw respondent No.1 entering the room with M.O.1, iron rod. But evidence of P.W.4, one of the occurrence witnesses is that M.O.1 was seen in the room of the petitioner even before the alleged incident. Learned Additional Sessions Judge observed that version of petitioner that respondent No.1 came to his room with M.O.1 cannot be believed. According to the petitioner and P.W.4, after the incident the iron road was placed on the table but P.W.3 sated that he found the iron rod on the floor. Assuming that the said contradiction is not so material, availability of M.O.1 at the scene of occurrence even before the incident happened is certainly crucial. Learned Additional Sessions Judge also referred to other contradictions in paragraphs 3 and 4 of the judgment. It is after consideration of the evidence adduced by both sides that learned Additional Sessions Judge observed CRL. R.P. No.1378 of 2008 -: 5 :- that evidence of prosecution is not free from doubt and acquitted respondent No1. Learned Additional Sessions Judge found that the defence version is equally possible. I do not find any circumstance requiring interference with the acquittal of respondent No.1. Resultantly, revision fails. It is dismissed. THOMAS P.JOSEPH, JUDGE. vsv