IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 Crl.Rev.Pet.No. 22 of 2008() ---------------------------- CC.890/2004 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR REVN. PETITIONER: PW6: ---------------------- C. RADHAKRISHNAN, S/O. K.P.CHELLAPPAN PILLAI, AGED 52 YEARS, RESIDING AT RADHA BHAVAN (KRISHNA PRABHA), NEAR E.S.I. DISPENSARY, PUNALUR. BY ADV. SRI.N.UNNIKRISHNAN SMT.SONIA JOSEPH RESPONDENTS: STATE/ACCUSED: --------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. 2. G.C. KANNAN, AGED 38 YEARS, GOPINATHA PILLA, GOPI KRISHNA VEEDU, NEAR POWER HOUSE, THOLICODU WARD,PUNALUR VILLAGE. 3. KRISHNAKUMAR, AGED 38 YEARS, S/O.GOPALAKRISHNAN, PUSHPAVILASAM, EDAKKUNNU, MANIYAR WARD, PUNALUR VILLAGE. 4. SUBASH, S/O. SURENDRAN, AGED 25 YEARS, AATTARIKATHU PUTHEN VEEDU, PARAVATTOM, MANIYAR WARD, PUNALUR VILLAGE. 5. RAVEENDRAN, S/O. RAGHAVAN, AGED 68 YEARS, THAMARATHARA VEEDU, NEAR GURUMANDIRAM, PIRAVANTHOOR MURI, PIRAVANTHOOR VILLAGE. 6. MONSY, S/O. THARAKAN, AGED 26 YEARS, PADINJATTINKARA PUTHEN VEEDU, NEAR THOLICODU JUNCTION, THOLICODE MURI, PUNALUR VILLAGE. BY PUBLIC PROSECUTOR SRI.M.K.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ========================= CRL.R.P. NO.22 OF 2008 ========================= Dated this the 8th day of February 2008 ORDER Petitioner, who was the de facto complainant in C.C.890/2004 on the file of JFCM, Punaloor for offences punishable under Sections 143, 147, 342, 323, 447, 452, 427 and 188 read with Section 149 IPC, challenges the order of acquittal dated 11.10.2007 passed by the learned Magistrate. 2. The case of the prosecution can be summarised as follows: In furtherance of their common object the accused persons formed themselves into an unlawful assembly for causing damage to the northern retaining wall which existed in the property of CWs.4 and 6. The accused then wrongfully trespassed into the shop room owned by them at DCM Junction, Punaloor on 8.3.2004 at 1 a.m. After wrongfully confining CW1 - the watchman of the said shop room and causing hurt to him the six accused persons committed mischief by demolishing the northern retaining wall using crow bar, pickaxe and spade causing a loss CRL.R.P.22/2008 2 of Rs.50,000/- to CWs.4 and 6. The aforesaid acts were committed in violation of the order of injunction passed by the Munsiffs Court, Punalur in a civil suit between the parties. 3. The accused pleaded not guilty to the charge framed against him by the court below for the aforementioned offences. Thereupon the prosecution was permitted to adduce evidence in support of its case. The prosecution examined six witnesses as PWs. 1 to 6 and got marked 8 documents as Exts.P1 to P8. 4. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They got 7 documents marked as Exts.D1 to D7. The learned Magistrate after trial, by judgment dtd.11.10.2007 acquitted the six accused persons. Hence this revision is filed by the de facto complainant. 5. Even though the learned counsel appearing for the revision petitioner assailed the order of acquittal on various CRL.R.P.22/2008 3 grounds, I am not satisfied that the judgment of acquittal requires reconsideration. PWs.1 to 3 are the three occurrence witnesses examined by the prosecution. PW1 was the sole eye witness who was injured in the occurrence. He was the Watchman engaged at the shop during the night in question. According to him, while he was sleeping in the shop room during night, three persons trespassed into the room by lifting the shutter and gagged him and threatened him and was beaten on his nape and wrongfully confined till 5 a.m. and about 10 to 25 unknown persons demolished the retaining wall. But this witness turned hostile to the prosecution by deposing before the Court that he does not know whether the accused persons standing in the dock were the assailants. 6. PWs.2 and 3 are the other witnesses examined as occurrence witnesses. Both of them are the employees of one Asok Kumar who is an enemy of the first accused. Much strain is not necessary to conclude that these two witnesses were interested in falsely implicating the accused persons and they CRL.R.P.22/2008 4 have been dubbed as such by the trial court which had the unique advantage of seeing the witnesses and assessing their credibility. PW2 even went to the extent of saying that he witnessed the occurrence while returning from the Taluk Head Quarters Hospital, Punaloor where his father was hospitalized. But during cross examination he had to admit that his father had passed away even during his childhood. The occurrence took place during the night at about 1 a.m. There is evidence to show that there was no light inside the shop room at the time of occurrence. If so, the testimony of PWs.2 and 3 that they could identify the accused can only be taken with a pinch of salt. One of the accused persons, namely Murukan (A2)whom the witnesses claimed to have identified as a participant in the occurrence, was actually in judicial custody in connection with Crime No.184 of 1998 of Thenmala police Station. When there was no acceptable evidence before the court to show that it was the accused persons who had assaulted PW1 and who had demolished the retaining wall, the Court below was fully justified in recording an CRL.R.P.22/2008 5 order of acquittal against the accused. Admittedly, there is a civil suit pending between the parties and the present complaint was lodged with the only motive of over reaching the orders of the civil court. I do not find any illegality or irregularity in the order of acquittal. This revision is accordingly dismissed. V.RAMKUMAR, JUDGE css/