IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 CRL.A.No. 101 of 2003() --------------------------------- CC.481/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. .................... APPELLANT/COMPLAINANT ----------------------------------------- JAYAKUMAR, S/O. BHASKARA PILLAI, THAYYIL HOUSE, EROOR, TRIPUNITHURA. BY ADV. MR.P.SATHISAN RESPONDENTS/ ACCUSED -------------------------------------- 1. NANDANAN, S/O. RAMAN MENON THAYYIL HOUSE, EROOR, TRIPUNITHURA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. R1 BY ADV. MR.T.B.THANKAPPAN, MR.R.GIRISH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 101 OF 2003 = = = = = = = = = = = = = = = Dated this the 24th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Addl. Chief Judicial Magistrate Court, Ernakulam in C.C.481/98. A private complaint was filled against the accused for committing offences u/Ss. 323, 324, 352 and 447 IPC. PWs.1 to 5 and DW1 were examined and Exts.P1 to P4 were marked. On an analysis the court below found in favour of the accused and acquitted him. 2. It is the case of the complainant that the accused had beaten him and one Sundaram with a stick and had caused injuries to them and had also demolished the fence which was in the property. The complainant is the brother-in- law of the accused. Father of the wife died in 1989 and there was a dispute with respect to one Sridurga Theater and a suit for partition was filled which had gone in favour of the accused. Crl. Appeal NO. 101 OF 2003 -:2:- 3. I am informed that an appeal is pending before this court. The adjacent property is belonging to one Rajeshkumar and the complainant is looking after that property on behalf of this Rajeshkumar. It is deposed that the accused along with others were constructing a fence when it was obstructed by the complainant and the Rajeshkumar they left the place and when the complainant and others were removing the bamboo on the property, the accused along with Achuthan came and attacked the complainant and also Sundaram. When he attempted to attack Rajeshkumar it was resisted by the complainant and the Sundaram and thereafter they were given blows by the accused. 4. PW2 is the said Rajeshkumar. I do not know why the prosecution did not examine Mr.Sundaram who has also alleged to have sustained injuries in the incident. DW1 is Achuthan. Achuthan admittedly was in the place even according to the complainant for the reason that he came along with the accused. As DW1 Achuthan would depose that while they were constructing the fence the complainant and Crl. Appeal NO. 101 OF 2003 -:3:- others came and they attempted to attack the accused and the accused informed the police. So they left the place. It is interesting to see that this Achutan is cited as a witness in the private complaint. But he has been examined by the accused as a witness. The Court below characterized the evidence of PWs.1 and 2 as interesting. In a case of this nature the interestedness has to be looked into for the reason that admittedly parties were on inimical terms on account of the dispute regarding the theatre. A civil suit was filed which ended in favour of the accused and therefore the friction was there between them. It is in that back ground we have to analyze the evidence. 5. A person who had accompanied the accused according to the complainant was cited as a prosecution witness. But he was examined by the accused and he had submitted that the aggressors were the complainant and not the accused. The learned counsel for the respondents also would submit before me that the case registered by the police was referred and thereafter only a complaint was filed which Crl. Appeal NO. 101 OF 2003 -:4:- was referred u/s 156(3) Cr.P.C. So we are having the interested evidence of PWs.1 and 2 and the evidence of DW1. DW1 who is cited as a witness of the complainant is examined by the accused. He is an independent witness. His evidence only lends support to the case of the accused. There is enmity between the complainant and the accused regarding the ownership of the theatre which had ended in favour of the accused. Therefore the Court below rightly found that the materials are not sufficient to connect the accused with the crime and hence granted an order of acquittal. I do not find any ground in this appeal to interfere with the said decision and therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 101 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 101 OF 2003 = = = = = = = = = = = J U D G M E N T 24th August, 2009