IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 Crl.Rev.Pet.No. 396 of 1997() ----------------------------- CC.83/1994 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): --------------------- 1. SARASWATHY, W/O.VAMAKESAN, NJAREKKATTU HOUSE, EDACOCHI VILLAGE AND KARA. 2. VAMAKESAN, S/O.SANKARAN, NJAREKKATTU HOUSE, EDACOCHI VILLAGE AND KARA. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): --------------- 1. THULASIDASAN, S/O.KRISHNAN, NJAREKKATTU VEETTIL, EDACOCHI VILLAGE AND KARA. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 SRI.S.SUJIN FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.396 OF 1997 --------------------------------------------- Dated 15th June, 2010 O R D E R De facto complainant in C.C.83/1994 on the file of Judicial First Class Magistrate-I,Kochi filed this revision challenging the order of acquittal of first respondent/accused. Prosecution case is that due to previous enmity towards the second petitioner, first respondent unlawfully trespassed into the house of second petitioner at Edakochi by breaking open the eastern door as well as the southern door and fisted on the face of the second petitioner and when first petitioner intervened, he fisted on the right side of her chest and hit her with an iron brick piece and caused injury and then caused CRRP 396/97 2 hurt also to their children and thereby committed the offences under Sections 323, 324 and 452 of Indian Penal Code. First respondent pleaded not guilty. Prosecution examined ten witnesses and marked Exts.P1 to P4. Learned Magistrate on the evidence found that prosecution has not conclusively established the offence alleged against first respondent and acquitted him under Section 248(1) of Code of Criminal Procedure. That order of acquittal is challenged in this revision. 2. Learned counsel appearing for the petitioner argued that learned Magistrate did not properly appreciate the evidence and evidence of Pws.1 and 2 were corroborated by the evidence of Pws.3 and 4 and also by Pws.5 and 6, the independent witnesses and there is no reason to disbelieve their evidence and therefore, the order of acquittal is illegal CRRP 396/97 3 and is to be quashed. 3. Incident occurred on 24/3/1991 at about 5.30 p.m. PW7 doctor examined PW1 and prepared Ext.P2 wound certificate on the same day at 6.10 p.m. Alleged cause of injury disclosed to the doctor by the first petitioner was beating by a known person from the house of the injured at 5.45 p.m. Assailant's name was not mentioned. Ext.P1 FI statement was furnished later wherein first respondent was named as the culprit. Learned Magistrate based on the evidence of PW9 Head Constable is that he reached the General Hospital where PW1 was admitted and recorded Ext.P1 FI statement on 26/3/1991 based on which the crime was registered. Learned Magistrate further found that crime No.29/1991 was registered on the same day and the incident in that case occurred at 5 p.m earlier to the incident in CRRP 396/97 4 this case. Learned Magistrate on analysing the entire evidence of Pws.1 to 6 found their evidence not trust worthy. PW1 is the wife, PW2 is the husband and Pws.3 and 4 are the children and Pws.5 and 6 are the neighbours who allegedly witnessed the incident. According to the evidence of Pws.1 and 2, petitioner made a scene outside the house and uttering obscene words and when PW1 closed the door and went inside, petitioner broke open the door and thereafter attacked PW2 and when PW1 intervened she was also attacked and thereafter by pressing Pws.3 and 4 hurt was caused to them also. If the evidence of PW1 is to be believed, as rightly found by the court below, she was hit with a brick by first respondent which should necessarily cause sufficient injury. But the only injury found by PW7, the doctor does not correspond to the injuries allegedly CRRP 396/97 5 inflicted as per the evidence of Pws.1 and 2. Though Pws.5 and 6 deposed that they had witnessed the incident learned Magistrate on evaluating found that their evidence cannot be believed. On going through the evidence, it cannot be said that the view taken by the learned Magistrate is not a possible and reasonable view that could be taken on appreciation of the evidence. It that be so, it is not for this court to interfere with the order of acquittal as appreciation of evidence cannot be said to be perverse. Revision fails and is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.