IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 Crl.MC.No. 1285 of 2011(C) -------------------------------------- [CRIME NO.717/2005 OF KODUNGALLUR POLICE STATION] ......... PETITIONER/DEFACTO COMPLAINANT: --------------------------------------------------------- SHABNA, W/O SIDHIQUE, KALLINGAL HOUSE, AZHIKODE DESOM, AZHIKODE VILLAGE, KODUNGALLUR THALUK. BY ADV. SRI.S.RAJEEV. RESPONDENTS/ACCUSED: --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. IBRAHIM, S/O MUHAMMED, KALLUNGAL HOUSE, AZHIKODE VILLAGE, KODUNGALLUR TALUK-680 664. 3. ANSAR, S/O MUHAMMAD, KALLUNGAL HOUSE, AZHIKODE VILLAGE, KODUNGALLUR TALUK-680 664. 4. SALAM, S/O MUHAMMAD, KALLUNGAL HOUSE, AZHIKODE VILLAGE, KODUNGALLUR TALUK-680 664. R1 BY PUBLIC PROSECUTOR SRI. MANU. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1285 of 2011 --------------------------------------- Dated this 23rd day of May, 2011 ORDER De facto complainant in C.C.No.1517 of 2005 of the Court of learned Judicial First Class Magistrate, Kodungallur is aggrieved by the acquittal of respondents 2 to 4/accused 1 to 3 by the learned Magistrate, as confirmed by the learned Sessions Judge, Thrissur in Crl.R.P.No.114 of 2008. On the information given by the petitioner, a case was registered against respondents 2 to 4 for offence punishable under Sec.498A r/w Sec.34 of the Indian Penal Code. Police after investigation submitted final report. Case is that on 20.10.2005 at about 3.30p.m respondents 2 to 4 attempted to strangulate petitioner following a dispute regarding partition of family property and petitioner attempted to commit suicide by cutting her vein with a broken glass piece. Prosecution was not successful in proving the case against respondents 2 to 4 and the learned Magistrate acquitted them. Petitioner challenged that acquittal in Crl.R.P.No.114 of 2008. Learned Sessions Judge agreed with the view taken by the learned Magistrate and dismissed the revision. Hence this proceeding under Sec.482 of the Code of Criminal Crl.M.C.No.1285 of 2011 -: 2 :- Procedure (for short, "the Code”). Learned counsel contended that evidence of PWs.3 and 4 has not been properly appreciated by the courts below and that there is miscarriage of justice which this Court is required to set right invoking its extra ordinary jurisdiction under Sec.482 of the Code. 2. Even in the matter of a revision from an order of acquittal what the revisional Court is concerned with is only whether there is any gross miscarriage of justice arising from violation of any fundamental principle of law or whether such miscarriage has resulted from a perverse finding or appreciation of the materials on record. The revisional Court is not required to re-appreciate the evidence as in the case of appeal from acquittal or conviction. The scope of revision itself is limited as aforesaid. When it comes to a proceeding under Sec.482 of the Code challenging acquittal of trial court as confirmed in revision, this Court is required to consider whether the extra ordinary jurisdiction conferred on this Court is to be exercised in respect of the proceedings of the courts below or the judgment/order under challenge. 3. In the case on hand, prosecution examined PWs.1 to 8 and marked Exts.P1 to P4. PW1/CW2 is the husband of Crl.M.C.No.1285 of 2011 -: 3 :- petitioner/de facto complainant and admittedly is not a witness to the (alleged) incident. He would say that petitioner/PW4 told him about the incident at the hospital after she regained conscience. PW2 is the servant in the family house. She did not support the prosecution and instead, stated that petitioner and PW1 got into a quarrel and PW1 assaulted petitioner. Petitioner thereon rushed to the room on the first floor and locked it from inside. Later petitioner tried to commit suicide. PW2 was declared hostile by the prosecution. It is not as if the evidence of a hostile witness is to be ignored outright. Acceptable portion of evidence of a hostile witness can be taken into account. PW6 is the brother of PW1 and indisputably, has no direct information about the incident. PW5 is the witness examined by the prosecution to prove the alleged incident. He had not seen anything special at the place of occurrence. He did not see blood anywhere at the place of occurrence. 4. What remained is the evidence of petitioner as PW4 and of the medical officer (PW3) who examined her. PW3 examined petitioner on 20.10.2005 at 2.30p.m and issued Ext.P1, wound certificate. Petitioner came with the history of alleged attempt to commit suicide (as stated by petitioner). PW3 found a Crl.M.C.No.1285 of 2011 -: 4 :- wound scar, minor in nature which was not sufficient to cause death. Petitioner as PW4 of course gave evidence regarding the alleged incident. She stated that respondents 2 to 4 caught her by the tuft of the hair and intimidated her with death. They locked her in a room where she attempted to commit suicide. 5. Going by Ext.P1, petitioner was examined by PW3 on the date of occurrence at 2.30p.m while according to the prosecution the incident itself was at 3.30p.m. I stated that PWs.1 and 6 are not witnesses to the incident and evidence of PW5 did not improve the prosecution case and instead it goes against the prosecution to the extent that he could not see anything special at the place of occurrence. He did not see any blood in the place of occurrence. What remained is evidence of PW4, petitioner. It has come in evidence that there was a civil dispute between PW1, husband of petitioner and respondents 2 to 4 after the death of their father a few days back. Evidence of PW2 is also relevant. According to her, there was a quarrel between petitioner and PW1, the latter assaulted petitioner, she entered into the room and locked the same from inside. It is in these circumstances that learned Magistrate was not impressed by the prosecution evidence and acquitted respondents 2 to 4. Crl.M.C.No.1285 of 2011 -: 5 :- Learned Sessions Judge found that there was no irregularity or impropriety in that finding. I am not satisfied that there is any gross miscarriage of justice arising from violation of any fundamental principle of law or any perverse appreciation of the evidence so that this Court is required to exercise its extra ordinary jurisdiction. This criminal miscellaneous case is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-