IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 Crl.Rev.Pet.No. 23 of 2002(B) ----------------------------- CC.911/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... REVN. PETITIONER/DEFACTO COMPLAINANT: ------------------------------------------------- P.K.CHERIYA NARAYANAN NAMBIAR, SON OF KRISHNAN NAMBIAR, ERUVESSY, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS/STATE & ACCUSED NOS.1 TO 7: ---------------------------------------------------- 1. THE STATE OF KERALA, (SUB INSPECTOR OF POLICE,KUDIYANMALA POLICE STATION,CRIME NO.77/1992 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. PATHUKANDI KUNHUMPIDUKKA JANARDHANAN, SON OF KRISHNAN NAIR, ERUVESSY AMSOM DESOM, ERUVESSY P.O., TALIPARAMBA TALUK, KANNUR DISTRICT. 3. PATHUKANDI KUNHUMPIDUKKA RAMACHANDRAN, SON OF SREEDHARAN NAMBIAR, ERUVESSY AMSOM DESOM, ERUVESSY P.O., TALIPARAMBA TALUK,KANNUR DISTRICT. 4. PATHUKANDI KUNHUMPIDUKKA PREMARAJAN, SON OF SREEDHARAN NAMBIAR, ERUVESSY AMSOM DESOM,'E ERUVESSY P.O., TALIPARAMBA TALUK,KANNUR DISTRICT. 5. THANISSERY BHASKARAN, SON OF KUNHAMBU NAMBIAR, ERUVESSY AMSOM DESOM, ERUVESSY P.O., TALIPARAMBA TALUK,KANNUR DISTRICT. 6. THEEYANCHERY CHANDROTH NARAYANAN, SON OF RAMAN NAMBIAR, ERUVESSY AMSOM DESOM, ERUVESSY P.O., TALIPARAMBA TALUK,KANNUR DISTRICT. CRL.RP: 23/2002 7. PATHUKANDI KUNHUMPIDUKKA JANARDHANAN, SON OF KUTTAPPAN NAIR, ERUVESSY AMSOM DESOM, ERUVESSY P.O., TALIPARAMBA TALUK, KANNUR DISTRICT. R2 BY ADV. SRI.SURESH KUMAR KODOTH R3,R4 & R6 BY ADV. SRI.SURESH KUMAR KODOTH R3,R4 & R6 BY ADV. SMT.C.V.BINDU FOR R5 & R7 BY ADV.SRI.M.SASINDRAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.23 of 2002 ---------------------------------------- Dated this the 17th day of March 2009 O R D E R PW4, the informant/injured in a prosecution for offences punishable inter alia under Section 326 read with 149 has preferred this revision petition to challenge the verdict of not guilty and acquittal recorded by the trial court. 2. Altogether seven accused persons faced allegations. The alleged incident took place on 23/8/1992 at about 5 p.m. 2nd accused is the brother of the petitioner herein. There allegedly were civil disputes between PW4 and the 2nd accused, siblings. The other accused are all relatives and friends of the 2nd accused. The prosecution alleged that on account of prior animosity, all the accused persons who were members of an unlawful assembly armed with dangerous weapons at the time of occurrence in prosecution of their common objects allegedly trespassed into the residential property and residence of PW4. They unleashed a violent attack against PW4. CW2, the wife of PW4 as well as PW5 and PW8, the daughters of PW4 were also available in the house. CW2, the wife of PW4 as also PW8 had suffered injuries in the incident. F.I.S was lodged by PW4. Crime was registered. Crl.R.P.No.23/02 2 Investigation was conducted and thereafter final report was filed by the police. 3. Cognizance was taken by the learned Magistrate. The accused denied the offences alleged against them and thereupon the prosecution examined PWs 1 to 11 and proved Exts.P1 to P9 (a). MOs 1 to 6 were also marked. The accused, in the course of cross-examination and when examined under Section 313 Cr.P.C, did not dispute the incident as such; but according to them, the incident did not take place in the manner alleged by the prosecution. There was a dispute between the 2nd accused and PW4. On account of animosity arising from such disputes, PW4 and his henchmen had allegedly obstructed a lorry which was proceeding to the quarry of the 2nd accused. The lorry had to return. There was an attempt to discuss and settle the disputes and it is in connection with such attempt to settle the disputes that the accused persons reached the house of PW4 at the relevant time. There, instead of engaging himself in the settlement of the dispute, PW4 unleashed an attack on the accused and accused 1 to 4 suffered injuries. PWs 4,8 and CW2 must have suffered injuries in the course of that incident. DW1 was examined and Exts.D1 to D4 were marked on the side of the Crl.R.P.No.23/02 3 accused. Ext.D1 is an application to show that PW4 had signed a compromise petition to inform the court that the disputes have been settled and the offences compounded by him. The other two victims that is CW2 and PW8 have not signed Ext.D1. 4. PWs 1 and 2 are alleged occurrence witnesses examined by the prosecution. They turned completely hostile to the prosecution. PW3 is an attestor to the scene mahazer. He also turned hostile completely. PW5 is the victim. She had suffered injuries. She supported the prosecution version. PW5 is a daughter of PW4. She is an eye witness of the occurrence. She has not suffered any injuries. PW6 is the doctor. The doctor examined PW4, PW8 and CW2 and issued Exts.P7, P8 and P9. PW7 is an attestor to the scene mahazer under which some of the MOs were seized from the scene. PW8 is another daughter of PW5 who has suffered injuries in the incident. She supported the prosecution version. PW9 claims to be an eye witness. He had allegedly reached the scene of occurrence. He supported the prosecution case. PWs 10 and 11 are police officials who had roles to play in the registration of the crime and investigation. 5. The learned Magistrate was called upon to decide whether the oral evidence of PWs 4,5,8 and 9 is sufficient to Crl.R.P.No.23/02 4 safely enter a verdict of guilty and conviction against the accused persons. PWs 4, 5 and 8 are interested witnesses. They had animus against the 2nd accused on account of property disputes. PW9 is the only so called independent witness examined by the prosecution. The court below considered this aspect and took note of the fact that PW9 is not a neighbour and that his explanation for his presence is not convincing. The learned Magistrate further noted that though there was a possibility of several independent neighbouring witnesses witnessing the incident, prosecution has not been able to secure the evidence of any one of them except the interested PWs 4,5 and 8, all relatives and PW9 - not a neighbour. 6. The court below appreciated the evidence of PWs 4,5, and 9 for its intrinsic worth. The learned Magistrate appears to have entertained a very strong impression that these witnesses were tutored and were parrot like repeating the version which appeared to be photographic narration with all tutored details. In short, the oral evidence of PWs 4,5,8 and 9 did not inspire the confidence of the trial court. The learned Magistrate, I note, simultaneously took note of certain incongruities in the evidence of PWs 4,5,8 and 9. The learned Magistrate was perhaps most Crl.R.P.No.23/02 5 impressed by the plea advanced by the accused that an incident had taken place, but the same did not take place in the manner alleged by the prosecution. The learned Magistrate, in this context, took note of Exts.D2 and D3, the F.I.S and F.I.R in a counter F.I.R that was registered on the basis of the complaint of the accused. There it was seen that accused 1 to 4 had suffered injuries. Ext.D4 (a) to D4(d) are the wound certificates showing injuries suffered by them. That crime ended with Ext.D4 refer report submitted by the police. But the learned Magistrate thought that the version of the accused competes in probabilities with that of the prosecution. In the light of such competing probable version of the accused, the learned Magistrate looked for independent disinterested oral evidence and could not persuade himself to accept and act upon the oral evidence of PW4, PW5, PW8 and PW9. All the circumstances added together, the learned Magistrate appears to have felt that it would be safer to concede the benefit of doubt to the accused persons. It is accordingly that the learned Magistrate proceeded to pass the impugned judgment of acquittal. 7. The learned counsel for the petitioner has advanced detailed arguments. The learned counsel contends that the Crl.R.P.No.23/02 6 learned Magistrate must have taken note of the fact that the incident took place in the house of PWs 4,5,8 and CW2. The accused persons had trespassed into the peace and tranquility of their residential building. The theory that accused persons had gone to the scene of the crime for attending a mediated settlement should not have been accepted at all, contends the learned counsel for the petitioner. The learned counsel further points out that a careful consideration of the nature of injuries suffered by PWs 4,8 and CW2 described in Exts.P7,P8 and P9 when compared with the alleged injuries suffered by the accused persons described in Ext.D4 (a) to (d) must convince the court that the accused persons were guilty of attacking PW4 at his house and it is not a case where PW4 attacked the accused in his house. 8. The learned Magistrate had gone through the meticulous details narrated in F.I.S Ext.D2 and Ext.D3 F.I.R registered at the instance of the accused. The details in such F.I.R had prompted the learned Magistrate to feel that the version of the accused is a probable one. The nature of injuries suffered by the rival contestants in an admitted incident may not in every case be a safe indicia to ascertain the offender and the Crl.R.P.No.23/02 7 victim. I am hence unable to accept the argument of the learned counsel for the revision petitioner that the grievous injuries suffered by CW2, PW4 and PW8 must tilt the scales convincingly in favour of the prosecution. 9. I have adverted to all the relevant circumstances. I have been taken through the impugned judgment in detail. I remind myself first of all about the nature, quality and contours of the jurisdiction of a court of revision considering the challenge against a judgment of acquittal at the instance of the de facto complainant/informant when the State/the complainant has not preferred any appeal. The jurisdiction sought to be invoked is one in revision and not one in appeal. The trial court has the evident advantage of seeing the witnesses perform in the witness stand before it. An alert trial court gathers several inputs in the course of the trial which help such court in the matter of appreciation of evidence. Except on compelling reasons, the court of revision shall not interfere with such discretions exercised in the appreciation of evidence. 10. Having considered the entire evidence available, I am not persuaded to agree that sufficient circumstances exist justifying the invocation of the revisional jurisdiction of Crl.R.P.No.23/02 8 superintendence and correction to interfere with the discretion exercised by the learned Magistrate to conclude that safe reliance cannot be placed on the evidence of PWs 4,5,8 and 9. May be another Judge, on facts, may have taken a different view on the recorded testimony. It may be that such a view in favour of the prosecution may have been a probable view and not a perverse one. But that is not certainly a valid reason to interfere with a judgment of acquittal in revision. I find no satisfactory reason to interfere with the discretion exercised by the court below not to accept and act upon the oral evidence of PWs 4,5,8 and 9. As stated earlier, I have been taken through the impugned judgment of acquittal. I note that the learned Magistrate has adverted to all relevant aspects. It cannot be said that the mind of the learned Magistrate has not been applied to all relevant evidence recorded and the circumstances of the case. 11. The learned counsel contends that though a charge under Section 326 I.P.C was raised and there was a discharge certificate issued from the hospital available in records, the learned Public Prosecutor or the learned Magistrate have not alertly introduced that in evidence. In these circumstances, the Crl.R.P.No.23/02 9 finding under point No.1 that no grievous hurt has been proved cannot be held to be justified or proper. I shall assume that PW4 had suffered an injury as alleged. That fracture of the metacarpal bone, does not, according to me, warrant interference of the judgment of acquittal and remand of the case to the learned Magistrate to ensure that the evidence about the nature of the injury which is available on record and which was omitted to be marked is introduced. The conclusion appears to be inescapable from the totality of circumstances that there is no necessity or justification to interfere with the impugned judgment of acquittal. 11. This Crl.R.P accordingly fails and is hence dismissed. (R.BASANT, JUDGE) jsr Crl.R.P.No.23/02 10 Crl.R.P.No.23/02 11 R.BASANT, J Crl.R.P.No.23 of 2002 ORDER 17th DAY OF MARCH 2009