IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2164 of 2009()
1. AYAMU, S/O. ALAVI,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
2. STATION HOUSE OFFICER,
3. MOIDEENKUTTY @ KUNHIPPA,
4. ABDUL RAHSEER, S/O. MOIDEEN KUTTY,
5. ABDUL RAHIMAN, S/O. MOIDEEN KUTTY,
6. MUHAMMED FAROOQ, S/O.MOIDEEN KUTTY,
For Petitioner :SRI.ALEXANDER GEORGE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/07/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.2164 of 2009
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Dated this 06th day of July 2009
ORDER
Heard counsel for petitioner and public prosecutor who took
notice for respondent No.1.
2. This revision is in challenge of acquittal of respondent
Nos. 2 to 6 by learned Judicial First Class Magistrate,
Perinthalmanna in C.C.No.144 of 2006. Respondent Nos. 2 to 6
faced trial for offences punishable under Secs.143, 147, 341, 323
and 427 r/w Sec.34 of the Penal Code. Case is that on 10-01-06 at
about 10.00 a.m respondent Nos.2 to 6 formed unlawful assembly,
wrongfully restrained PW1 and others who were travelling in an
autorikshaw by stopping it, voluntary caused hurt to PW1 and
committed mischief by damaging the autorikshaw. Prosecution
examined PWs.1 to 10 and marked as Exts.P1 to P6 and MO1.
When questioned under Sec.313 of Code of criminal procedure
(for short, “the Code”) respondent Nos.2 to 6 claimed that
petitioner and one Shafeek assaulted one Ashraf alleging that said
Crl.R.P.No.2164 of 2009 2
Ashraf telephoned to the wife of petitioner. Police came for
investigation. Respondent No.2 gave statement against the
petitioner in that matter. On account of that enmity respondent
Nos.2 to 6 are falsely implicated in the case. Learned magistrate
after consideration of the evidence found that case is not proved
beyond reasonable doubt and acquitted respondent Nos.2 to 6
under Sec.255(1) of the Code. It is contended by learned counsel
that learned magistrate has not properly appreciated the evidence
and that learned magistrate was carried away by some exaggeration
in the evidence of petitioner.
3. Petitioner in his evidence as PW1 claimed that
respondent Nos.2 and 5 stopped the autorikshaw in which himself,
son and others were travelling. Respondent No.4 hit him with Iron
rod and it hit his neck. Respondent No.5 tried to pull him down
from the autorikshaw. Respondent No.5 fisted on his head.
Respondent No.6 attacked him with a chopper. Chopper hit the
autorikshaw and damaged it. PW2 stated that he was travelling in
Crl.R.P.No.2164 of 2009 3
the autorickshaw along with PW1. He also referred to the incident
and claimed that respondent No.4 beat PW1 with stick (as against
version of PW1 that respondent No.4 attacked him with iron rod).
Respondent No.6 was carrying an iron rod (according to PW1,
respondent No.6 attacked him with chopper). PW9 is the driver of
the autorickshaw. He did not say anything about the damage
allegedly caused to his autorikshaw. PW4 is said to have
witnessed the incident. He stated that respondent Nos.2 and 3
stopped the autorickshaw and respondent Nos.3 and 4 and one
Shafeek (he is an accused) caught PW1 holding on his shirt.
Respondent No.4 assaulted PW1 with iron rod and the blow fell on
the autorickshaw and damaged it. PW5 is the son the petitioner
(PW1). He was also travelling in the autorickshaw. He referred to
the incident but does not remember who had attacked the
petitioner. PW6 did not support the prosecution. PW7 examined
petitioner (PW1) and issued Ext.P2, wound certificate. There was
a small abrasion on the right side of neck of petitioner told PW7
Crl.R.P.No.2164 of 2009 4
that he was assaulted by five persons with iron rod. PW10
investigated the case. His evidence would show that petitioner is
accused for C.C.No.43 of 2000. According to PW10, no weapon
was used in the alleged incident.
4. Though petitioner (PW1) and PWs.2 and 4 claimed that
weapons, either iron rod, chopper or stick were used in the
incident, there is no charge even for that. On the other hand,
evidence of PW10 is that no weapon is used in the incident. That
means, evidence of petitioner and other witnesses regarding the
alleged used of weapons and causing damage to the autorickshaw
is false. PW9, driver of the autorickshaw did not refer to any such
damage to his vehicle. According to the petitioner (PW1) he was
assaulted and his shirt (MO-1) was strained with blood. In chief
examination when that shirt was shown to him he denied that it is
his shirt. Then he immediately corrected and stated it is his shirt.
Evidence of PW3 would show that no such incident has occurred.
According to him, autorickshaw was stopped and then went to the
Crl.R.P.No.2164 of 2009 5
nearby shop to purchase articles. He had declared ‘hostile’. Court
below has considered the evidence and was I am satisfied that it
may not be proper to grant bail to petitioner at this stage with
it. What is spoken by petitioner and his witnesses does not
appear to be a true version of the incident. Learned magistrate also
was of that view to warrant conviction. That finding is based after
a consideration of the evidence. Even if it is assumed that a
different view is also possible, that is no ground to interfere with
an acquittal in revision. I do not find reason to interfere.
Thus revision fails. It is dismissed.
THOMAS P JOSEPH, JUDGE
Sbna/