IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 178 of 2004()
1. OUTHEN PURAYIL CELAYUDHAN,
... Petitioner
Vs
1. GOPINATHAN,
... Respondent
2. PRADEEP KUMAR,
3. SHASI,
4. STATE OF KERALA,
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.R.SUDHISH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/08/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.178 OF 2004
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Dated 12th August, 2010
O R D E R
De facto complainant in C.C.188/2000
on the file of Judicial First Class
Magistrate-V, Kozhikode filed this revision
challenging the acquittal of respondents 1
to 3 for the offences under Sections 447
and 427 read with Section 34 of Indian
Penal Code under Section 255(1) of Code of
Criminal Procedure. Prosecution case is
that at about 12 mid night of 15/12/1999,
respondents 1 to 3 trespassed into the
property of PW1 in survey No.246/11 of
Naduvattom village and demolished the
compound wall for the purpose of widening
the pathway and caused a damage of
CRRP 178/04 2
Rs.8,000/- and committed the offences.
Respondents 1 to 3 pleaded not guilty.
Prosecution examined ten witnesses and marked
three exhibits and identified Mos.1 and 2. On
the side of accused DW1 was examined and Ext.D1
was marked. Learned Magistrate on the
evidence found that the prosecution case cannot
be believed as according to Pws.2 to 4 the eye
witnesses, first respondent along with
respondents 2 and 3 demolished the compound
wall and evidence of DW1 the doctor shows that
first respondent was admitted as an inpatient
in the hospital on that night and therefore,
evidence of Pws.2 to 4 cannot be relied on.
Argument of the learned counsel appearing for
the petitioner is that Ext.D1 is a fabricated
document and learned Magistrate should not have
relied on Ext.D1 and accepted the alibi. It was
argued that even if first respondent was
CRRP 178/04 3
admitted as inpatient, he could be present at
the scene of occurrence and therefore, learned
Magistrate was not justified in acquitting
respondents 1 to 3.
2. Incident was allegedly at 12 mid
night on 15/12/1999. Ext.P1 FI statement of PW1
was recorded on 16/12/1999 at 10.30 a.m.
Evidence of PW1 with Ext.P1 shows that PW1 got
the information from PW2, when PW2 intimated
PW1 over phone on the early morning of
16/12/1999. Prosecution case depends on the
trustworthiness and credibility of Pws.2 to 4
who claim to have witnessed the incident. PW2
is an autorickshaw driver. According to the
evidence of PW2 while he was proceeding along
the road, he found the three accused
demolishing the compound wall and on the next
day morning he intimated the fact to PW1. If
PW2 is to be believed, he found the first
CRRP 178/04 4
respondent demolishing the compound wall and
respondents 2 and 3 removing stones from the
scene. If in fact PW2 had witnessed the
incident and had thought it necessary to inform
PW1 in the early morning, he would have
definitely informed PW1 immediately on seeing
the incident. On going through the evidence of
PW2 I find his evidence not trustworthy.
3. Evidence of PW3 is that he
witnessed the incident and watched the scene
for some time and went back. His evidence shows
that he has a grievance that accused had
demolished his compound wall also. It cannot be
believed that PW3 would be watching the
incident at 12 midnight, when had not given any
reason for coming out of the house to see the
incident. He has no case that he heard the
sound and came out and witnessed the act of
demolishing the compound wall. So also, if PW3
CRRP 178/04 5
had witnessed the act of demolishing the
compound wall of PW1 and that too for widening
the pathway he would have definitely expected
demolition of his compound wall also and if so,
he would not have kept quiet and allowed
demolition of his compound wall. It is
therefore clear that PW3 is not deposing the
truth.
4. PW4 claimed that hearing the sound
he came out along with his father and found the
three accused demolishing the compound wall.
When version of PW2 is that accused was having
only crow bar, evidence of PW3 is that two of
the accused were having pick-axe and the other
was having a crow bar. According to PW4 also
accused were having pick axe, with which they
demolished the compound wall. From the evidence
of PW4 it is clear that he also did not witness
the incident.
CRRP 178/04 6
5. Added to this, evidence of DW1
establish that first accused was admitted as an
inpatient in the hospital on the same night at
8.30 p.m and was discharged only on the next
day. Though it was argued that Ext.D1 is a
forged record, when DW1 the doctor was examined
there was no such case. DW1 was cross examined
only with regard to the identity of the patient
shown in Ext.D1 and not that no patient as
stated in Ext.D1 was admitted or that the said
patient was not in the hospital on that night
or till he was discharged on the next day. DW1
deposed that he had known first respondent even
earlier and therefore, he could identify the
patient treated shown in Ext.D1 as the first
respondent. Evidence of DW1 is trustworthy.
6. In such circumstances, on the
evidence learned Magistrate was justified in
holding that first respondent would not have
CRRP 178/04 7
been there in the scene of occurrence
demolishing the compound wall as he was treated
as an inpatient. If the case against the first
respondent is disbelieved the entire case
against other accused also cannot be believed.
In any event, on appreciating the entire
evidence, the view taken by the learned
Magistrate is perfectly a possible view. Hence
the order of acquittal is legal and warrants no
interference.
Revision fails and it is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.