IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Crl.Rev.Pet.No. 1257 of 2003() ------------------------------ CRA.261/1996 of ADDL.SESSIONS COURT, KOTTAYAM CC.23/1994 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------- LAKSHMANAN, S/O. GOVINDAN, VATTAACKATTU VEEDU, AREEPARAMBU KARA, MANARCADU VILLAGE, KOTTAYAM. BY ADV. SRI.R.SANTHOSH BABU RESPONDENT/COMPLAINANT & STATE: ----------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO.1257 OF 2003 ORDER ON CRL.M.A. NO.5177 OF 2003 IN CRL.R.P. NO.1257 OF 2003 DISMISSED 22.7.2010 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ PA TO JUDGE M.SASIDHARAN NAMBIAR, JUDGE ORDER CRL.R.P. NO.1257 OF 2003 DATED 22nd JULY, 2010 M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.R.P. No. 1257 OF 2003 -------------------------- Dated this the 22nd day of July, 2010 O R D E R Petitioner, the second accused in C.C. No.23 of 1994 on the file of Judicial First Class Magistrate-II, Kottayam was convicted and sentenced for the offences under Sections 427, 429 and 448 read with Section 34 of Indian Penal Code. The case as against the first accused was split up and refiled, as he was absconding. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.Appeal No.261 of 1996. The learned Additional Sessions Judge on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. When the revision was taken up, the learned counsel appearing for the petitioner was not present. In such circumstances, the learned Public Prosecutor was heard and the records were perused. 3. Prosecution case is that on 28.6.1992, PW1 and his wife were sleeping in their house bearing building No.720 of Ward No.I of Vijayapuram Panchayat. At about 10 pm in the night, PW1 woke Crl.RP No.1257/03. 2 up hearing the sound and flashed torch light through the window and found the first accused. He knocked at the door and finding PW1, asked him to open the door. Petitioner by that time was causing damages to the vessel and other articles in the house. Fearing the accused, PW1 did not open the door. By that time, his wife woke up and stood behind him. First accused inflicted injury on the left thigh of the calf of PW1, which was tied at the southern lean of the house with a sword stick. Petitioner caused damages to the building and also cut the window bar using MO1 axis. PW1 and the wife cried aloud. Hearing the cry, the neighbours gathered. By that time, the accused caused damages to the plantains and teak seedlings and committed the offence. 4. The appellant pleaded not guilty. Prosecution examined 7 witnesses and marked 4 exhibits and identified 4 material objects. The learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced him for the offences. The learned Sessions Judge also appreciated the evidence and accepted the prosecution case and confirmed the conviction. 5. Revision petitioner contended that Ext.P1 is not the first Crl.RP No.1257/03. 3 information statement and therefore it should not have been relied on. It is contended that PW2 and PW4 are not eye witnesses and their evidence should not have been relied on. So also it was contended that the evidence of PW1 is not reliable. Petitioner was not present at the scene at all and the case has been foisted against him as there is a case against PW1 and others for molesting his wife. 6. Ext.P1 first information statement of PW1 was recorded on 29.6.1992 at 9 am when he had gone to the police station and disclosed the statement to the Sub Inspector. When PW1 was cross-examined, he deposed that the incident was reported to the police on the same night. PW1 also depose that the police had reached the scene of occurrence at that night. It is on that basis, petitioner would content that Ext.P1 is not actually the first information statement. 7. There is force in the said submission. If the evidence of PW1 is to be believed, details of the incident was disclosed to the police on the night of 28.6.1992 itself and after getting the information, the police had also come to the spot on that night. If that be so, Ext.P1 which was recorded on the next day at 9 am cannot be Crl.RP No.1257/03. 4 the first information of the crime. 8. Though PW2 had given evidence that he was also there in the house along with PW1 and his wife, neither in Ext.P1 first information statement nor in the course of the evidence of PW1, it was disclosed that PW2 was there in the house. If in fact, apart from the wife of PW1, PW2 was also present in that house at that night, PW1 would have definitely disclosed that fact in Ext.P1 especially when PW2 if present, would have been a material and possible witness. It is also pertinent to note that according to PW1, there is only one room in that residential house and when PW1 and his wife were residing therein, it is improbable that PW2, though the brother- in-law, would be staying in that room on that night. In any event, when the presence of the petitioner was not disclosed in Ext.P1 first information statement or in the course of the evidence of PW1, it can only be found that PW2 was not there on that night. Therefore evidence of PW2 should not have been relied on by the courts below. 9. PW3, the other eye witness turned hostile. PW4 was examined to prove that he had seen the incident from his house by looking through the window. Even if the evidence of PW2 is Crl.RP No.1257/03. 5 believed, it is clear from the evidence that he did not identify the petitioner on that night. PW4 did not assert that he had seen the petitioner, while he was looking through the window. Though PW4 deposed that he had come out of the house and seen the accused, he has no such case when his statement was recorded under Section 161 of Code of Criminal Procedure. Therefore, the evidence of PW4 also cannot be used to find that petitioner was there on that night. 10. What remains is only the evidence of PW1. Though PW1 asserted that petitioner was also present at the premises on that night and he also participated in the incident, on going through the entire evidence of PW1, I find it difficult to believe the evidence of PW1 especially when he has developed the case. In this background the non-examination of the wife of PW1 is fatal. Even as per Ext.P1 statement, the wife was present along with PW1 and she had seen the incident as well as identified the accused. There is no explanation for non-examination of the wife. When the entire evidence is appreciated in the proper perspective, it is difficult to accept the case that petitioner was present and participated in the Crl.RP No.1257/03. 6 incident. In such circumstances, petitioner is at least entitled to get the benefit of reasonable doubt. Hence conviction is not sustainable. Revision is allowed. Conviction of the petitioner in C.C. No.23 of 1999 on the file of the Judicial First Class Magistrate-II, Kottayam, as confirmed by Additional Sessions Judge, Kottayam in Crl.Appeal No.261 of 1996 is set aside. The petitioner is found not guilty of the offences. He is acquitted. M.SASIDHARAN NAMBIAR (JUDGE) vps Crl.RP No.1257/03. 7 Crl.RP No.1257/03. 8