IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 Crl.Rev.Pet.No. 477 of 2004() ----------------------------- CRA.527/2002 of ADDL.SESSIONS COURT, KOTTAYAM CC.239/2001 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER: APPELLANTS/ACCUSED 1 TO 3 ------------------------------------------- 1. SOMAN S/O.CHANDRASEKHARAN, MILUYIL VEEDU, ERANJAL BHAGOM, NATTASSERY KARA, NOW RESIDING AT PATTATHIL VEEDU, AMAYANNOOR KARA, AYARKUNNAM VILLAGE. 2. SABU S/O.MATHAI, POOVATHUMOOTTIL HOUSE, VDAVATHOOR KARA, VIJAYAPURAM VILLAGE. 3. KUNJUMON S/O.KAPPI, ERANJAL BHAGOM DO. DO. NOW RESIDING AT KKARATEDATHU VEEDU, PERUMBAIKKATTUSEERY, PERUMBAIKKADU VILLAGE. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS: RESPONDENT/COMPLAINANT ----------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.R.P.No.477 OF 2004 ------------------------------------------- Dated this the 7th day of July, 2008 O R D E R The revision petitioners, three in number and another were chargesheeted for offences punishable under Sections 452, 323 and the second limb of Section 506 read with Section 34 IPC, on the allegation that on 27.6.2001 at about 5.30 p.m., in furtherance of their common intention of voluntarily causing hurt, they criminally trespassed into the residence of PW1 and beat him on his face and cheek and fisted on his chest and the third accused criminally intimidated PW1 by putting a knife on his neck by stating that he would be killed, whereupon PW1's mother PW2, who attempted to intervene, was pushed down to the ground by the first accused and PWs.3 and 4, who reached the scene of occurrence were also pushed down by catching hold of them by the neck. PWs.3 and 4 are not residents of the house belonging to PWs.1 and 2. Cr.R.P.477/04 Page numbers 2. Going by the materials on record, PW2, a 60 year old widow, deposed that her son PW1 was not employed. She did not refute that she had stated to the police that PW1 was employed in the Forest Department and that he was on leave. The late husband of PW2 was employed in the Forest Department and PW1's version before the police that he was employed in the Forest Department was marked as a contradiction to discredit him. Even without any such contradiction being marked, PW2 did not deny that she stated to the police that PW1 was employed in the Forest Department. She, however, stated that such statement by her was wrong. I notice the aforesaid in view of the totality of the evidence on record to ascertain for myself the credibility of PWs.1 and 2 since two other independent witnesses viz. PWs.3 and 4 were declared hostile by the court of first instance, at the request of the prosecution. 3. The alleged intention for committing the alleged crime is that the accused persons had expressed certain negative comments about PW3 Omana and it is alleged that PW1 had Cr.R.P.477/04 Page numbers transmitted such information to PW3 and this provoked the accused persons to commit the act of criminal trespass into the residence of PWs.1 and 2, cause hurt to PW1 and also criminally intimidate him with threat to life or grievous hurt. The fact remains that PW3 Omana turned hostile and PW4, another woman, was also declared hostile. Her statement that accused persons were found in the residence of PWs.1 and 2, though noticed by the court of session to sustain the conviction, does not by itself inspire confidence because the accused persons are also those who are available in the vicinity of the residence of PWs.1 and 2 and the deposition of PW4 is that the accused persons were available in the residence of PWs.1 and 2 for at least half an hour, while she was also there. It might have been possible to sustain the conviction by taking the testimony of PW4 regarding the presence of the accused persons in the residence of PWs.1 and 2 as a corroboration, as has been done by the court of session, if the deposition of PWs.1 and 2 were so inspiring as to exclude the chances of having a hostile testimonial animus as against the accused persons. Cr.R.P.477/04 Page numbers 4. As already noticed, one of the cardinal materials that shakes the confidence of the court in the evidence of PWs.1 and 2 is that both of them appear to give a version before the police that PW1, the son of a former employee of the Forest Department, was employed with the Forest Department for around 4 years and he was on leave and he stays along with the mother in the house in question while his wife stays away alone in Painavu. This statement, by itself, may not be of much relevance in so far as the allegations in relation to the alleged transactions are concerned. But the fact that such statements have been proved to be false go a long way against their reliability and does not inspire the confidence of the court to treat PWs.1 and 2 as credible. Not only that, treating the versions of PWs.1 and 2 as the only available and dependable legal evidence on record, they do not tally in many materials particulars, particularly regarding the availability of PW2 in the bed room, where PW1 was relaxing on a sofa and seeing the TV. Though that is the version of one of them, while the other appears to suggest that she moved in after seeing PW1 being intimidated, which she saw as she peeped through the curtain. Cr.R.P.477/04 Page numbers This does not appear to be a case where on the face of the hostility of PWs.3 and 4, it would be safe to convict relying solely on PWs.1 and 2, even if it is to be supported by certain portions of the testimony of PW4. 5. Having regard to the totality of the facts and circumstances, I am satisfied that the impugned order of conviction and sentence is unavailable of record. At any rate, the accused persons 1 to 4 were also entitled to the benefit of doubt at the hands of the court of first instance or the court of session. For the aforesaid reasons, the impugned conviction and sentence are set aside and the revision petition is allowed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.8/7.