IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2655 of 2010()
1. JOYKUTTY, AGED 70 YEARS
... Petitioner
Vs
1. REGHU, S/O.GOPALAN
... Respondent
2. PODIYAN, S/O.KANDAN
3. RAVI, S/O.GOPALAN
4. RATHEESH, S/O.SANTHA
5. SARADHA, W/O.REGHU
6. JANAKI, W/O.GOPALAN
7. SARAMMA, W/O.PODIYAN
8. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.T.SURESHKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :22/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.2655 of 2010
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Dated this the 22nd day of September, 2010.
O R D E R
Challenge in this revision petition is against the order of
acquittal recorded by the Court of Chief Judicial Magistrate-
Pathanamthitta in C.C.No.98/07.
2. C.C.No.98/07 was instituted upon a report filed by the
police after investigation in Crime No.136/06 of Pathanamthitta
Police Station, for the offence punishable u/s.143, 147, 148, 447,
427 and 506(ii) r/w 149 of IPC. Altogether there were 8 accused
and finally as per the judgment of the trial court except A4, all
others were acquitted. It is the above order of acquittal
challenged in this revision petition at the instance of the defacto
complainant.
3. I have heard Adv.Sri.M.T.Suresh Kumar, the learned
counsel for the revision petitioner and I have carefully perused
the judgments of the learned Magistrate.
4. The case of the prosecution is that, on 15.1.2006 at
about 12.00 in the mid night, the accused armed with deadly
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weapons formed themselves into an unlawful assembly and
committed rioting and in pursuance of their common object,
criminally trespassed upon the property of PW1 lying in Survey
No.49/2 situated at Puthenpeedika in Omalloor Village and
committed mischief by demolishing the eastern boundary at a
width of 1.5 m. and a length of 180 m. causing a loss of
Rs.50,000/- and that A1 criminally intimidated PW1 by showing
a deadly knife causing fear of death and there by committed the
said offences. During the trial Pws.1 to 3 were examined and
Exts.P1 to P7 were marked from the side of the prosecution to
prove its case. Ext.P1 is the complaint preferred by the defacto
complainant, the revision petitioner herein. Ext.P2 is the certified
copy of the settlement deed in favour of PW1, Exts.P3 and P4
are respectively the possession certificate and tax receipt. PW2
is the Sub Inspector of Police, Pathanathitta Police Station, who
registered Ext.P5 FIR and conducted investigation. Ext.P6 is the
scene mahazar and Ext.P7 is the report deleting A3 from the FIR
and filing the full address of the other accused persons. Out of 3
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witnesses shown as occurrence witnesses, only PW1 was
examined and the daughter in law and the wife of PW1 did not
turn up and adduced no evidence. After considering the above
materials and evidence, the court found that the prosecution has
failed to prove the case beyond reasonable doubt and
consequently the benefit of doubt is given in favour of the
accused and they were acquitted.
5. The learned counsel for the revision petitioner
vehemently argued that though timely information was given to
the police, no action was taken because of the influence of the
original A3 and hence the defacto complainant was constrained
to approach the court by filing a private complaint, it is thereafter
the police registered the crime. According to the learned counsel,
the learned Magistrate acquitted the accused on flimsy grounds
and without serious consideration and appreciation of evidence
on record. It is also the submission of the learned counsel that
as per the scene mahazar, mischief is manifest but the trial court
miserably failed to consider the above aspect. It is also the
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submission of the learned counsel that, other than the accused
nobody is responsible for the mischief committed on the eastern
boundary of the property of PW1.
6. I am unable to sustain the above contention. It is an
admitted fact that there is a path way lying on the eastern side of
the property and the said path way being constructed and
maintained by the panchayat by putting concrete. The alleged
incident was during the night and the trial court has found that it
has come out in evidence that the defacto complainant PW1 has
got poor eye sight for the last 21 years and he came nearly 51 ft.
away from the eastern boundary. It is also the observation of the
learned Magistrate that, PW1 has no case in Ext.P1 complaint
that the accused had committed the mischief in the presence of
light and no source of light was high-lighted by PW1 either in
Ext.P1 complaint or in any other document produced before the
Court. So the trial court held that it is not forthcoming as to how
PW1 has witnessed the incident and identified the persons who
allegedly standing 50 ft. away from the position where PW1 was
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standing and that too in the mid night. So the trial court found
that the identification made by PW1 before the court during the
first time can not be accepted as such.
7. It is also the observation of the learned Magistrate that,
there is no independent and corroborative evidence for the
consideration of the evidence of PW1. It is also on record that,
the path way in question leads to a colony wherein so many
houses are situated and several families are living. In the
absence of any proper identification of the accused, who involved
in the real incident and because the beneficiary of the path way
is not only the accused, it can not be ruled out that, no other
person has involved and hence it can not be held that the
prosecution has proved the identity of the accused beyond
reasonable doubt. It is also a fact that the incident was taken
place during the night. The trial court has also found that the
police has not made any effort to find out the weapons allegedly
used by the accused. The evidence of PW1 regarding the
weapon and the persons who were possessing the weapon at
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the time of the incident are not worthy because his only general
version is that of the accused were holding deadly weapons. So
the trial court after appreciating the evidence which are available
on record held that, in the absence of any independent and
corroborative evidence, the version of PW1 who is aged nearly
50 years and especially when he had some visual defect and the
distance between the place of occurrence and the witness stood
at the time of the incident is too far, held that the prosecution has
not proved the case beyond reasonable doubt. I find no reason to
interfere with the above findings of the learned Magistrate.
8. It is also relevant to note that, though the above case
was instituted upon the police report, the prosecution agency has
not filed any appeal against the acquittal of the accused. While
this court exercising the revisional jurisdiction at the instance of
the defacto complainant / a private party, unless it is specifically
shown that there is manifest error or miscarriage of justice or
violation of procedure in law, this court is not expected to
interfere with the order of acquittal recorded by the trial court. In
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this revision petition, the revision petitioner has miserably failed
to make out any of such ground to interfere with the order of
acquittal.
In the result, I am of the view that this revision petition is
devoid of any merit and accordingly the same is dismissed.
V.K.MOHANAN,
Judge.
ami/