IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 Crl.Rev.Pet.No. 1409 of 2002() ------------------------------ CC.13/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVISION PETITIONER(S): DEFACTO COMPLAINANT: ------------------------------------------------------------------------------- NIYAMATHULLA, KANNATTUPARAMBIL HOUSE, U.C.COLLEGE P.O., ALUVA. BY ADVS. MR.ALBERT JOSEPH, MR.P.A.NOOR MUHAMMED. RESPONDENT(S): ACCUSED 1 TO 3 AND STATE: ------------------------------------------------------------------------- 1. SHAHUL HAMEED @ SHAHUL, S/O. ADIMA, VAYALODAM VEETTIL, VELIYATHUNADU, ALUVA WEST VILLAGE. 2. ASHRAF, S/O. KUNJU MUHAMMED, -DO-. 3. SHAMON @ SHANAVAS, S/O. MUHAMMED, KARAYIKOODAM VEETTIL, -DO-. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 & R2 BY ADVS.MR.C.D.JOHNY, MR.P.SHAIJAN JOSEPH. R4 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1409 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 24th March, 2009 ORDER The revision is filed by the defacto complainant impeaching the legality, propriety and correctness of the judgment of acquittal rendered in favour of the accused who had been prosecuted for the offences punishable under Sections 341, 323, 324 read with 34 I.P.C. on a charge laid by the S.I. of Police, Aluva. 2. The defacto complainant set the law in motion giving a statement while he was hospitalised. The accused, all three of them, conjointly assaulted him with deadly weapons and inflicted him grave injuries, at midnight of 26.2.1996, was his compliant. Ext.P3 crime was registered for the offences punishable under Sections 341, 323, 324 read with 34 I.P.C. against the accused, and after completion of the investigation charge was laid indicting the accused of the aforesaid offences. The accused pleaded not guilty. Prosecution examined P.Ws.1 to 9, got marked Exts.P1 to P5 and identified M.Os. 1 to 6 to prove its case. The accused maintained their innocence when questioned under Section 313 Cr.P.C., and towards defence evidence, examined two witnesses as D.Ws.1 and 2. The learned Magistrate, after appreciating the materials tendered, was of Crl.R.P.No.1409/02 - 2 - the view that the solitary testimony of P.W.1, the injured, which alone was tendered to prove the occurrence was not sufficient to hold that the accused were his assailants especially when the prosecution failed to prove that there was sufficient light enabling him to identify his assailants. The occurrence took place at midnight and that all other prosecution witnesses examined to prove the occurrence turned hostile to the prosecution also weighed with the court in holding that the charges imputed against the accused had not been brought home by reliable and convincing evidence. In that view of the matter, the learned Magistrate rendered the judgment of acquittal in favour of the accused absolving them of the offences indicted. The correctness of that acquittal and its legality, is impeached by the defacto complainant. 3. Two patent mistakes borne out by the judgment had been highlighted in the memorandum of revision to show that the impugned judgment acquitting the accused is unsustainable. The defacto complainant is a 'male', but, by mistake through out the judgment the learned Magistrate had referred to him as a 'female'. The other patent mistake in the judgment, it is submitted, is the reference made to a Criminal M.P. as having been filed by the defacto Crl.R.P.No.1409/02 - 3 - complainant with allegations contrary to what was stated in his statements before the police and also in evidence before the court. The grievance is that the Criminal M.P. was filed not by the defacto complainant, but by the mother of one of the accused setting forth allegations against the complainant in respect of an incident totally different from that involved in the case. 4. When the revision was taken up for hearing, the learned counsel for the respondents/accused alone was present and despite opportunity being extended more than once, the presence of the counsel for the revision petitioner/defacto complainant could not be procured. That being so, I could not get better light on the two patent mistakes referred to above in the judgment as narrated in the memorandum of revision. The learned counsel for the respondents/accused conceding that there was a mistake in the judgment in referring the defacto complainant as a female though he was a male, pleaded ignorance regarding the second mistake relating to the Criminal M.P., the filing of which was attributed to the defacto complainant. It seems that the judgment impugned was passed by the successor Magistrate who had not recorded the evidence in the case. Probably, at the time of arguments, after completion of the Crl.R.P.No.1409/02 - 4 - evidence, his attention was not invited to the fact that the defacto complainant was a 'male' and that the Criminal M.P. referred in the judgment was moved by a person different from the defacto complainant. 5. The Magistrate had committed the mistakes referred to, in the given facts of the case, will not be sufficient to disturb his findings entered after appreciating the evidence of the case that the prosecution had not brought home the guilt of the accused for the offences indicted against them. The occurrence involved in the case took place at midnight and no evidence was let in by the prosecution to show that there was sufficient light enabling the defacto complainant, examined as P.W.1, to identify his assailants. P.Ws.2 and 3, two other witnesses examined by the prosecution to prove the occurrence, turned hostile to the prosecution case. When that be so, the conclusion reached by the learned Magistrate that the occurrence involved in the case as alleged by the prosecution has not been proved by convincing evidence, cannot be found fault with. The Magistrate had committed some errors or mistakes in referring the defacto complainant as a female or as to the filing of a Criminal M.P. by him, which was not so, is not sufficient to disturb the order of Crl.R.P.No.1409/02 - 5 - acquittal passed in favour of the accused where it is shown that there was no worthmentioning evidence to prove the indictment levelled against them. The revision is therefore dismissed. srd S.S. SATHEESACHANDRAN, JUDGE