High Court Kerala High Court

Ibrahim vs Nazar on 1 July, 2009

Kerala High Court
Ibrahim vs Nazar on 1 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 330 of 2000()



1. IBRAHIM
                      ...  Petitioner

                        Vs

1. NAZAR
                       ...       Respondent

                For Petitioner  :SRI.K.A.JALEEL

                For Respondent  :SRI.P.VIJAYA BHANU

The Hon'ble MRS. Justice K.HEMA

 Dated :01/07/2009

 O R D E R
                               K. HEMA, J.
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                        Crl. R.P. No. 330 of 2000
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               Dated this the 1st day of July, 2009.

                                   ORDER

This is a revision against order of acquittal. The

revision petitioner is PW2, who is the injured and the de facto

complainant. According to him, on 16.10.1995 at about 10.45

p.m. accused numbers 1 to 5 formed into an unlawful assembly

and assaulted him using iron pipes while he was going through

the road on his cycle in front of a temple. Accused nos.1 to 3

wrongfully restrained him and and beat him with iron pipes. He

sustained fracture to his right arm. Accused 4 and 5 also

attacked him and the overt acts were committed at the instigation

of A6 to A8. Accused were charge-sheeted for offences under

Section 143,147, 148, 341, 120(b), 324, 326 r/w 149 of IPC.

2. Before the trial court, PWs 1 to 8 were examined

and Exts.P1 to P4 and MO1 were marked on the side of

prosecution. Ext.D1 was marked on the side of the accused.

3. The trial court found that PW2 who is the injured did

not reveal the name of any of the accused to the doctor. It was

[Crl.R.P.330/2000] 2

also found that evidence of PW2 cannot be relied upon in the

absence of independent corroboration. The only independent

witness turned hostile to the prosecution and thus prosecution

did not succeed in proving the guilt of the accused is the

conclusion of the the trial court. The trial court also placed

reliance upon the decision reported in Devinder v. State of

Haryana (1996 Criminal Law Journal 4461 (SC) to arrive at a

decision. The evidence of PW3 and PW4, who are close relatives

of PW2, were also chance witnesses and hence their evidence

was not relied upon. The trial court on the basis of such findings

acquitted the accused.

4. The revision petitioner raised a ground in the revision

memo that the trial court went wrong in finding that the evidence

of PW2 is not believable, on the ground that the name of the

accused were not stated to the doctor. It was argued that though

there was such an omission, he mentioned the details in the first

information statement. It was also contended that there is no

material discrepancy or contradiction in the evidence of PW2.

which is corroborated by the evidence of PW3 and PW4. The

evidence of PWs 3 and 4 cannot be said to be wholly unreliable

[Crl.R.P.330/2000] 3

and hence the rejection of their evidence was incorrect, is the

contention.

5. I have gone through the records and the evidence of PWs

1 to 4, who are the occurrence witnesses, coupled with the

evidence of the doctor PW5 and Ext.P2 wound certificate and also

the impugned judgment. But, I do not find any perversity in the

findings entered into by the trial court. As per the evidence of

PW2 and first information statement, accused no.1 was known to

PW2 very closely and there were earlier incidents between them.

But, inspite of this fact, PW2 did not state his name to the

doctor or even his involvement in the occurrence in any manner.

There is no satisfactory explanation forthcoming for non-

mentioning of the name of accused to the doctor at the earliest

point of time.

6. It can also be seen that PW1, who is only an independent

witness, turned hostile to the prosecution. The evidence of PWs 3

and 4 also does not reveal the identity of the accused who

committed the offences. They have not identified the accused

from the witness box. In fact, they only mentioned that “accused”

have acted in a particular manner etc. On the basis of such

[Crl.R.P.330/2000] 4

evidence given by PWs 2 to 4, the trial court was right in

rejecting their evidence and holding the accused not guilty, for

want of evidence. On going through the records, I do not find

sufficient cogent materials to come to the conclusion that the

accused committed the offences alleged against them beyond

reasonable doubt. There is dearth of satisfactory evidence and

hence there is no ground to interfere with the order of acquittal.

This Court can interfere if there is perversity in the findings of

facts, illegality, impropriety or irregularity. But I do not find any.

This revision petition is dismissed.

Sd/-

K. HEMA, JUDGE.

Krs.

[Crl.R.P.330/2000]        5




                                                       K. HEMA, J.

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Crl. R.P. No. 330 of 2000

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Dated this the 1st day of July, 2009.

ORDER