IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 Crl.Rev.Pet.No. 117 of 2011() ----------------------------- CRA.377/2009 of I ADDL. SESSIONS COURT-I, TRIVANDRUM ST.2282/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... REVN. PETITIONERS: DEFACTO COMPLAINANT: ----------------------------------------- MUHAMMED ALI.M., KOTTAYIL VEEDU, KANDALA P.O., THIRUVANANTHAPURAM, PIN-695 512. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS: APPELLANT/RESPONDENT/ACCUSED & STATE: ---------------------------------------------------- 1. PEERU MUHAMMED, S/O.ABOOBACKER, AHAD MANZIL, KOTTAKUZHI, NEAR KANDALA MARKET, MARANALLOOR VILLAGE, THIRUVANANTHAPURAM-695 510. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------------ Crl.R.P.No. 117 of 2011 ------------------------------------------------- Dated this the 15 th day of March, 2011 O R D E R The de facto complainant in crime No.34 of 2003 of Malayinkal Police station is the revision petitioner as he is aggrieved by the order of acquittal recorded by the appellate court by its judgment dated 19.10.2010 in Crl.A.No.377/2009 of the Additional Sessions Judge-I, Thiruvananthapuram. 2. Crime No.34 of of Malayinkal police station was registered initially for the offences punishable under sections 394, 341 and 323 of IPC. The allegation is that at about 9.30 p.m., on 22.1.2003, when PW3 was coming in his motor cycle after his duty and as he reached the Kattakada- Kandala road, he had stopped there to buy certain articles from the nearby shop. According to the de facto complainant, at that time, the Crl.R.PNO.117 of 2011 :-2-: accused came in a motor cycle and stopped by hitting the motor cycle of the de facto complainant and thereafter the accused wrongfully restrained the de facto complainant from proceeding to his house and voluntarily caused hurt to different parts of his body and had hit on the back of his head with a metal rod. After registering the crime, the police undertook the investigation and preferred report before the Judicial First Class Magistrate court, Kattakada based upon which S.T.No.2282 of 2003 was instituted. During trial, PWs 1 to 6 were examined and Exts.P1 to P3 were marked. Finally, the learned Magistrate found that accused is guilty under sections 341 and 323 IPC and accordingly, he is sentenced to undergo simple imprisonment for one month for the offence under section 341 IPC and simple imprisonment for three months and to pay a fine of Rs.1000/- for the offence under section 323 Crl.R.PNO.117 of 2011 :-3-: IPC. The default sentence under section 323 is fixed as simple imprisonment for a period of 3 months 3. Aggrieved by the above order of conviction and sentence, the accused therein preferred Crl.A.No.377/2009 and by judgment dated 19.10.2010 of the court of Addl.Sessions Judge-I, Thiruvananthapuram allowed the appeal acquitting the accused of all the charges levelled against him. It is the above judgment of the appellate court challenged in this Crl.R.P. 4. I have heard Sri S.Sanal Kumar, the learned counsel appearing for the revision petitioner and I have carefully perused the judgment of the appellate court as well as the trial court. At the outset, it has to be noted that though the prosecution was launched at the instance of the police who conducted the investigation, the investigating agency has not filed any appeal and against the order of Crl.R.PNO.117 of 2011 :-4-: acquittal, the present Crl.RP is preferred at the instance of the private party who is the de facto complainant. 5. The learned counsel for the revision petitioner vehemently submitted that the appellate court illegally interfered with the order of conviction and sentence imposed by the trial court who got the opportunity to watch the demeanor of the witnesses and the accused and the learned Judge of the appellate court reversed the order of conviction on flimsy grounds and without proper appreciation of the evidence and materials on record. The learned counsel pointed out that even though there is a delay while lodging the FI.Statement or reaching the FIR in the court, the same cannot be made as a ground to interfere with the order of conviction and to acquit the accused. It is also the submission of the learned counsel that though PW3 while lodging the FI Statement reported Crl.R.PNO.117 of 2011 :-5-: the offence under section 394, the police after investigation found that such offence was not committed and therefore the police had filed a report confirming the allegations only under section 341 and 323 IPC. Therefore, according the learned counsel, the giving up of offence under section 394 IPC also cannot be made as a ground for acquittal. It is also the further submission of the learned counsel that as there is no divergent finding, it is only just and proper for this court to interfere with the order of acquittal. 6. I am unable to sustain the above contention. It is well settled that the jurisdiction of the High court while entertaining a Crl. Revision Petition, at the instance of private party, against an order of acquittal is very limited and this Court has no jurisdiction to reappraise the evidence. It is also settled that unless there are Crl.R.PNO.117 of 2011 :-6-: procedural irregularities or misconception of law, the revisional court shall not interfere with the order of acquittal. 7. Now let us examine the case in hand in the light of the above limitation. On a plain reading of the trial court judgment, it can be seen that the learned Magistrate miserably failed to consider those aspects which are made grounds by the learned Sessions Judge to acquit the accused. As correctly pointed out by the learned Sessions Judge, though the incident was at 9.30 p.m on 22.1.2003, no explanation is forthcoming for not mentioning the name of the accused in the wound certificate even though the injured was examined at 10.25 p.m. on the date of incident. It is also a defect noted by the appellate court that the FIR is not marked during the trial. F.I.Statement was, according to the learned Sessions Crl.R.PNO.117 of 2011 :-7-: Judge, recorded only at 5.30 p.m on 23.1.2003, there is no explanation for the delayed recording of the F.I.Statement. But the FIR reached before the Magistrate only on 27.1.2003. The above inordinate delay is not explained by PW5 who recorded the F.I.Statement. No attempt is made by the prosecution agency to explain the delay. Thus, the appellate court has found that there is long gap of 5 days in between the date of occurrence and the time by which the FIR reached before the Magistrate. The appellate court has specifically found that in the FIS, the allegation is to the effect that, the accused, with the intention to take away the gold chain worn by the de facto complainant attacked the de facto complainant and caught hold of his neck and hit on his left abdomen 4 to 5 times and snatched away the gold chain. In the FI Statement, it is also stated that the de facto complainant Crl.R.PNO.117 of 2011 :-8-: was attacked with an iron rod by hitting on his head and also stamped on his back. But the wound certificate would show that there is only tenderness on the body of the de facto complainant. According to me, if the attack was by using iron rod, the injury would have been a different and serious or grave one. In this case, the gold chain allegedly snatched away by the accused is not recovered. The police has not filed any final report for the offence under section 394 of IPC. It is also seen that the investigating officer, namely, the C.I of Police was not examined during the trial. PWs 1 and 2 have stated during their examination that they did not witness the incident. Therefore, the appellate court elaborately considered the evidence of PW3, who is the de facto complainant and found that the version given by PW3 in the F I Statement based upon which FIR was registered for the offence under section 394 IPC, is not Crl.R.PNO.117 of 2011 :-9-: correct by the investigation, as the evidence tendered by PW3 is against the version given by him before the police while launching F.I statement. The allegation that contained in the FIS regarding the snatching away of gold chain worn by PW3 is given up when he deposed before the trial court. Admittedly, the de facto complainant was riding the scooter and therefore, according to the learned Sessions Judge, especially in the light of Ext.P3 wound certificate and the deposition of PW6, possibility's of causing injuries on the de facto complainant by fall from the bike on a rough surface cannot be ruled out, so there is every chance for false implication. So according to the learned Sessions Judge, in the absence of corroboratory evidence from independent source, the conviction purely on the basis of interested version of PW3 - the de facto complainant, cannot be satisfied. Thus on the basis of the Crl.R.PNO.117 of 2011 :-10-: above observation and findings, the appellate court extended the benefit of doubt in faour of the accused and accordingly he was acquitted. The above observation and finding of the learned Sessions Judge of the appellate court, according to me, warrant no interference, since the same are sound and rational especially in the light of the limitation of this court, while exercising the revisional jurisdiction at the instance of a private party. 8. The Apex court, time and again has held that, in case of acquittal, there is a double presumption in favour of the accused and unless there are very substantial and compelling reasons to interfere with the order of acquittal, the superior court shall not interfere with the order acquittal which will disturb the double presumption in favour of the acquitted accused. From the foregone discussion, I am of the view that there is no compelling Crl.R.PNO.117 of 2011 :-11-: and substantial reasons to interfere with order of acquittal recorded by the appellate court. In the result, there is no merit in this Crl.R.P. and accordingly, the same is dismissed. V.K.MOHANAN, Judge. kvm/-