IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 Crl.Rev.Pet.No. 3719 of 2008() ------------------------------ CC.685/2004 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER(S): DEFACTO COMPLAINANT ---------------------------------------- VISWANATHAN, AGED 38 YEARS, S/O.GOVINDAN, PUTHIYOTTIL HOUSE, KUTTIKATTOOR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): ACCUSED 1 TO 3 AND STATE --------------------------------------- 1. RAJEESH KUMAR, S/O.RAVINDRAN, AGED 25 YEARS, PEKKIPARAMBIL VEEDU, KUTTIKATTOOR. 2. PRAJEESH.K.P, S/O.HARIDASAN, AGED 25 YRS KADAYAPARAMBATH VEEDU, KUTTIKATTOOR. 3. HARIDASAN.K.P, AGED 58 YEARS, S/O.UNEERI, KADAYAPARAMBATH VEEDU, KUTTIKATTOOR. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI RAVINDRA BABU FOR R4 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3719 of 2008 -------------------------------------- Dated this the 27th day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.4. 2. Acquittal of respondent Nos.1 to 3/accused Nos.1 to 3 for offences punishable under Sections 341 and 324 read with Section 34 of the Indian Penal Code, under Section 248(1) of the Code of Criminal Procedure (for short, “the Code”) is questioned in this revision at the instance of the defacto complainant. Petitioner's case is that on 30.12.2002 at about 9 p.m. on the public road in front of Mahatma Arts Club respondent Nos.1 to 3 assaulted him and PW5 with wooden sticks and cricket bat. Prosecution examined PWs1 to 5 and proved Exts.P1 series and P2. Learned magistrate after consideration of the evidence found that the case alleged against respondent Nos.1 to 3 is not proved beyond reasonable doubt and acquitted them. It is contended by learned counsel that material witnesses were not examined and that acquittal of respondent Nos.1 to 3 is not legal or proper. 3. In proof of alleged incident, prosecution examined the petitioner (PW1) and PW5, allegedly injured persons. But inspite of learned magistrate taking steps, CW6, medical officer who is said to have treated PWs 1 and 5 could not be traced since he was not available in the address given. Summons issued to CW6 in her residential address also could not be served and it was Crl.R.P.No.3719/2008 2 returned. CW3, the independent witness was out of India and hence could not be examined. What remained is the evidence of PWs 1 and 5, allegedly injured persons. In the first information statement what PW1 stated is that respondent No.2 wrongfully restrained him and one Sudheesh (he is not an accused) and respondent No.2 beat him with cricket bat, he cried out, then respondent No.3 came there and beat him with wooden reaper. At that time PW5 came there then respondent No.2 beat PW5 also. In the first information statement there was no reference to the alleged involvement of respondent No.1. As against the version of PW1 that it was respondent No.2 who beat PW5, the latter stated in his evidence that Sudheesh ( not an accused in the case) beat him. It also came out that though according to PW1 as stated in the first information statement, himself and PW5 were assaulted with cricket bat, in the statement of PW5 to the Investigating Officer under Section 162 of the Code, the weapons stated are sticks and not cricket bat or reaper. Either way the stick or cricket bat were not or could not be recovered. According to PWs 1 and 5 there was sufficient light at the place of occurrence from the Club. Learned magistrate found that in the mahazar for scene of occurrence or in the previous statement of PWs 1 and 5 there is no mention about the availability of light at the place of occurrence. It is in these circumstances, learned magistrate gave benefit of doubt to respondent Nos.1 to 3 and acquitted them. Crl.R.P.No.3719/2008 3 4. Interference with an order of acquittal is called for in revision only in glaring cases of injustice resulting from violation of fundamental principles of law or exceptional cases of defect of procedure or manifest error resulting in flagrant miscarriage of justice. Learned magistrate has considered all materials available and found that it is not sufficient to warrant conviction of respondent Nos.1 to 3. Even if it is assumed that a different view was also possible, that is not sufficient to interfere in revision. Revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks