IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 Crl.Rev.Pet.No. 2507 of 2010(C) ------------------------------------- (CC.1896/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ERNAKULAM.) .................... REVN. PETITIONER(S)/ COMPLAINANT --------------------------------------------- SHEELA, D/O.ANDREWS, AGED 44 YEARS, PUTHENPARAMBIL HOUSE, AYYAKUNNAM KARA, EDAKKATTUVAYAL, ERNAKULAM DISTRICT. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S)/ACCUSED ------------------------------- 1. STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, MULANTHURUTHI POLICE STATION REPRESENTED THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JAYAKUMAR, S/O.RAMAN NAIR, KAPPIL HOUSE, KAIPATTOOR KARA, KAIPATTOOR VILLAGE - 682 901. 3. CHINNAMMA POULOSE, W/O.POULOSE, VAISSERIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 4. SREEDHARAN, S/O.KUNJAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 5. SUDHAKARAN, S/O.RAMAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. .........2/-... ...2... 6. DAMODHARAN, S/O.ETTYADHI, KANDAMKARICKAL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 7. GOVINDAN, S/O.ETTYADHI, KANDAMKARICKAL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 8. GOPI, S/O.RAMAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 9. SADANANDAN, S/O.PURUSHOTHAMAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 10.GIRIJAN, S/O.KARUNAKARAN, KANDAMKARICKAL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 11.ANIL KUMAR, S/O.KARUNAKARAN, KANDAMKARICKAL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 12.M.B.SASI, S/O.PURUSHOTHAMAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 13.M.B.RAJU, S/O.PURUSHOTHAMAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 14.PRAKASHAN, S/O.PURUSHOTHAMAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 15.MOHANAN, S/O.PURUSHOTHAMAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 16.RAMESHAN, S/O.PURUSHOTHAMAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 17.VALSA, W/O.SASI, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. .......3/-.... ......3..... 18. SUDHA, W/O.RAJU, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 19. SREEJA, W/O.PRAKASAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 20. PARUKUTTY, W/O.PADMANABHAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL- 682 901. 21. KANCHANA, W/O.SADANANDAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 22. SHEELA @ SARA, W/O.GOPI, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 23. DEVAKI, W/O.SUDHAKARAN, MARIPADAVIL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. 24. VILASINI, W/O.KARUNAKARAN, KANDAMKARICKAL HOUSE, AYYAKKUNNAM KARA, EDAKKATTUVAYAL VILLAGE, EDAKKATTUVAYAL - 682 901. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J --------------------------------- Crl.R.P.No.2507of 2010 ---------------------------------------------------- Dated this the 13th day of September, 2010 JUDGMENT This revision petition is preferred, challenging the order of acquittal recorded by the Judicial First Class Magistrate Court-I, Ernakulam in C.C.No.1896/2004 acquitting the accused for the offenses punishable u/s.143, 147, 148, 447, 427 r/w. Section 149 I.P.C, at the instance of the defacto complainant. 2. C.C.No.1896/2004 was instituted upon a report filed by the police after investigation in Crime No.124/2004 of Mulanthuruthy Police Station. 3. The prosecution case is that at about 8 p.m on 11/05/2004, the accused 23 in numbers armed with weapons like axe, showel and picaxe trespassed into the property of the defacto complainant, and cut and removed the rubber trees by using the above weapons and a JCB and they formed new way having a length of 100 meters and width of 3.48 meters through the property of PW1 and thereby caused loss of Rs.50,000/-. Thus according to the Crl.R.P.No.2507/2010 2 prosecution, the accused have committed the above offences. 4. During the trial PWs 1 and 2 were examined and Ext.P1 to P7 were marked from the side of the prosecution. From the side of the defence, DWs 1 and 2 were examined and Exts.D1 and D2 were marked. After considering the materials and evidence on record, the trial court has held that the prosecution did not succeed in proving the allegation beyond doubt that the accused have committed the offence. Accordingly, except A14, all others were found not guilty and accordingly they were acquitted u/s.247(1) of Cr.P.C. The charge against A14 is abated. It is the above order of acquittal challenged at the instance of the defacto complainant. The prosecution agency has not filed any appeal or revision. 5. I have heard the learned counsel appearing for the revision petitioner and I have also perused the impugned judgment. Crl.R.P.No.2507/2010 3 6. Learned revision petitioner vehemently argued that learned Magistrate miserably failed to consider Ext.P3 decree and P4 title deed and came into a wrong conclusion that the prosecution has not succeeded in proving the case against the revision petitioner. It is also the submission of the learned counsel that by the act of the accused persons in furtherance of their common intention to create a pathway through the property of the defacto complainant, the defacto complainant sustained loss to the tune of Rs.1,00,000/- and in the Civil court those allegations are found as correct as evidenced by Ext.P3. Therefore, the order impugned is liable to be set aside. 7. I am unable to sustain the above contention of the learned counsel. The only evidence adduced by the prosecution is that of PW1, to substantiate the allegation against the accused. It is also brought out on record that during the trial and on the date of the incident, a civil suit was pending regarding the property in question. Learned Crl.R.P.No.2507/2010 4 Magistrate as evidenced by paragraph 12 of the impugned judgment considered the entire prosecution materials and evidence on record. As I indicated earlier, the prime evidence is that of PW1 regarding the trespass and mischief. The trial court has specifically found that according to PW1 she saw the incident from a distance about 25 meters and she had also stated during the cross examination that her property is inclined to south to north and she does not know the exact height between the boundary in which the accused allegedly cut open a way. On the basis of those materials, the trial court concluded that her house is at a lower level than the boundary and it is also came out in evidence that she had cultivated in her property. After considering the entire factual inputs, the trial court concluded that it was very difficult for PW1 to see exactly, what happened in the boundary of her property, from her house. 8. In the Criminal court, the trial is to find out whether Crl.R.P.No.2507/2010 5 the prosecution has succeeded in establishing the charge as to who committed the alleged offfences and the over-tact of the accused and the nature under which the same was done. Admittedly, the incident was taken place on 11.5.2004 at 8 p.m. Having regard to the above facts and evidence, the learned Magistrate came into the conclusion that the version of PW1 that she identified each and every accused from her house and that they had committed the offence is not probable and believable. Thus the learned Magistrate concluded that it is not possible to hold that the accused had committed the offence alleged simply on the basis of the interested testimony of PW1 which indicated above. The trial court while appreciating the evidence, by assigning proper reasons came into a conclusion that solely on the basis of the interested version of PW1 it cannot be held that the accused, who faced the trial are the persons who committed the offences. It is also discernible from the impugned judgment especially in the light of the discussion Crl.R.P.No.2507/2010 6 contained in paragraph 13 that the finding of the court below is reasonable and supported by evidence and materials. 9. While exercising the revisional jurisdiction of this court, this court is not expected to re-appreciate the evidence on record and to substitute, opinion of this court instead of the finding arrived on by the court below. 10. It is also relevant to note that the arguments advanced by the learned counsel for the revision petitioner show that the grievances of the revision petitioner is with respect to the failure on the part of the court below in appreciating the evidence in the manner suggested by the revision petitioner. The scope of revisional jurisdiction at the instance of the private party is very limited and unless, the revision petitioner establish the manifest error or miscarriage of justice, this court cannot interfere with an order of acquittal and convert the same into a conviction. In the light of the facts and circumstances mentioned Crl.R.P.No.2507/2010 7 above, I find no reason to interfere with the conclusion arrived on by the court below in favour of the accused. In the result, there is not merit in the revision petition and accordingly, the same is dismissed. Sd/- V.K.MOHANAN JUDGE ss/. //True copy// P.A to Judge