IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 9TH FEBRUARY 2007 / 20TH MAGHA 1928 Crl.Rev.Pet.No. 2824 of 2005() ------------------------------ CC.643/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER: 2ND ACCUSED: ------------------------------ RAJEESH, S/O. ANDIKUTTY, PULPARAYIL HOUSE, MANGAD, MANGAD POST. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: COMPLAINANT & STATE: --------------------------------- 1. THE S.I. OF POLICE, BALUSSERY POLICE STATION. 2. SIVAPRASAD, S/O. GOVINDAN KIDAVU, KAIPPANCHERRY HOUSE, P.O. MANGAD. 3. RAJAN, S/O. CHINNAN, PODIYILKANDI PARAMBIL VEEDU, MANGAD, MANGAD P.O. 4. STATE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.K.SURESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/02/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------ Crl.R.P. No.2824 of 2005 ------------------------------------------ Dated this the 9th day of February, 2007. ORDER The revision petitioner challenges the order of the Magistrate Court by which he was proceeded against presumably under section 319 of the Code of Criminal Procedure ('the Code' for short). 2. It appears from the records that while PW1 was examined, he gave evidence that the revision petitioner was also involved in the incident who allegedly assaulted PW1 as a result of which, he sustained injuries and he was taken to the hospital. He gave first information statement as Ext.P1. After investigation, the police referred the case against the revision petitioner and charge-sheeted the case only against the first accused in the crime, for offence under section 341 and 324 of IPC. 3. While PW1 was examined in court, he impleaded revision petitioner. The records produced by the prosecution will go to show that he had a case from the right beginning that revision petitioner had assaulted him and he sustained injuries. The medical records are also available to support this. In such circumstances, the trial court [Crl.R.P.2824/05] 2 observed that the name of the revision petitioner was subsequently deleted for unknown reasons and found it fit to proceed against revision petitioner, after impleading him as the second accused in the case. 4. Learned counsel appearing for the revision petitioner argued that the statement of the only eye witness to the occurrence (CW2) which is recorded under section 161 of the Code will go to show that revision petitioner was not involved in the offence. A a copy of the statement was produced along with revision memo. It is submitted that, this fact itself is sufficient to disbelieve the evidence of PW1. It was also pointed out that CW2 is the person who is admittedly an eyewitness and he also got hurt in the course of the incident. According to PW1 himself the beating accidentally fell on CW2. Therefore, there is absolutely no reason to disbelieve the statement recorded under section 161 of the Code, it is submitted. It is also pointed out that the case against revision petitioner was referred by the police and the refer report was accepted by the court. In such circumstances there is no justification in proceeding against revision petitioner, especially since evidence of PW1 is discredited by the version given by CW2 to the Police and the refer report, it is strongly contended. [Crl.R.P.2824/05] 3 5.On hearing both sides, I am satisfied that none of the above arguments are acceptable. The fact that a contradictory statement is available in the case diary statement of an eye-witness is not a reason at this state to disbelieve the evidence of PW1. Even without examining CW2 in the court, it cannot be said whether his evidence will contradict the evidence of PW1. Evidence does not mean the statement of the eye witnesses recorded under section 161 of the Code. On the ground that the evidence given by PW1 is contradictory to the statement of CW2 which recorded under section 161 of the Code, the evidence of PW1 cannot be discarded at this stage. 6. PW1 had a consistent case during the investigation stage. A reading of first information statement along with the allegation made to the Doctor and also the statement of PW1 which is recorded under section 161 of the Code would all persuade any court to proceed against the revision petitioner invoking section 319 of Cr.P.C. The trial court has rightly exercised it powers and there is no illegality or impropriety in this regard. The question whether PW1 can be believed or CW2 (who is the sole eyewitness to the occurrence) is to be believed or not is a matter of evidence, which can be decided by the court during trial. But, it is too insufficient to interfere in the order passed. There is no reason to set aside the impugned order. [Crl.R.P.2824/05] 4 The trial court is justified in proceeding against the revision petitioner under section 319 of the Code. 7. I refrain myself from discussing any matter on the merits of the case, since any observations so made may prejudice the mind of the trial court and it may affect a fair trial. I do not find any illegality or impropriety in the order under challenge. This revision is dismissed. SD/- K. HEMA, JUDGE. Krs.