IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2824 of 2005()
1. RAJEESH, S/O. ANDIKUTTY,
... Petitioner
Vs
1. THE S.I. OF POLICE,
... Respondent
2. SIVAPRASAD, S/O. GOVINDAN KIDAVU,
3. RAJAN, S/O. CHINNAN,
4. STATE REP.BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :09/02/2007
O R D E R
K. HEMA, J.
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Crl.R.P. No.2824 of 2005
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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.