IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 114 of 2001()
1. SHYAMALA KUMARI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.S.MUHAMMED HANEEFF
For Respondent :SRI.M.R.GOPALAKRISHNAN NAIR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/12/2008
O R D E R
THOMAS P.JOSEPH, J.
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CRL.R.P. No. 114 of 2001
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Dated this the 3rd day of December, 2008
O R D E R
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De facto complainant in C.C. No.214 of 1997 of the Court of
Chief Judicial Magistrate, Pathanamthitta challenges acquittal of
respondents 2 to 7 (accused Nos.1 to 3 and 5 to 7) under Section 248
(1) of the Code of Criminal Procedure (for short, “the Cr.P.C.”) as
irregular, illegal and perverse.
2. Heard both sides.
3. Respondents 2 to 7 along with 4th accused (he was not
available for trial) were charge-sheeted by Circle Inspector of Police
Pathanamthitta in Crime No.97 of 1996 for offences punishable under
Sections 143, 147, 148, 427, 447 and 506(2) read with 149 of the
Indian Penal Code (for short, “the Code”) on the allegation that on
26.11.1996 at about 11.15 p.m. they formed an unlawful assembly,
committed rioting armed with deadly weapons and in prosecution of
the common object trespassed into the property of P.W.1 in
Sy.No.344/7-1 of Elathoor Village, committed mischief by cutting down
a few cashew-nut trees, jack-fruit tree and other crops and criminally
intimidated P.Ws.1 and 2, de facto complainant and her husband.
Prosecution examined P.Ws.1 to 5 and proved Exhibit P1. Of them,
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witnesses to the alleged incident are P.Ws.1, 2 and 4. Investigating
officer was not examined. Learned Chief Judicial Magistrate
disbelieved P.W.4, held that evidence of P.Ws.1 and 2 is not sufficient
to find respondents 2 to 7 guilty and acquitted them. It is contended
by learned counsel for revision petitioner that court below has not
properly appreciated the evidence of P.Ws.1, 2 and 4. Counsel for
respondents 2 to 7 supported the impugned judgment.
4. So far as incident proper is concerned, though P.W.3
stated that she owns property adjacent to the property of P.Ws.1 and
2 and that in her property also there was trespass and commission of
waste allegedly for cutting open a new way, she admitted that she
had not witnessed the incident. What remains is evidence of P.Ws.1,
2 and 4. So far as P.W.4 is concerned, it has come out in evidence that
he had contested the election to the Panchayat against the second
accused and failed. According to respondents 2 to 7, P.W.4 was
enimcal to them on that count and gave false evidence. Whatever
that be, it is the version of P.W.4 that he had been to the house of his
brother, Ponnan situated near place of occurrence, was in that house
at the relevant time and witnessed the incident. But for his
presence at the house of Ponnan, P.W.4 could not have witnessed the
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incident. But P.W.4 had not stated so to the Investigating officer at the
time of investigation. It is in the above circumstance that learned
Chief Judicial Magistrate thought it not safe to place reliance on the
evidence of P.W.4. So far as P.Ws.1 and 2 are concerned, it is true
that they gave evidence in support of the prosecution. According to
them there were other persons also apart from respondents 2 to 7
and 4th accused, but P.Ws.1 and 2 were not able to identify them.
According to P.Ws.1 and 2, they identified the culprits in the light of
torch carried by P.W.2 and burning petrolmax used by the culprits. It
has come out in evidence that neither P.W.1 nor P.W.2 told the
Investigating Officer in the course of investigation that they witnessed
the incident in the light of torch or petrolmax. Learned Chief
Judicial Magistrate found that omission to be material. Learned Chief
Judicial Magistrate has also referred to the evidence of P.Ws.1 and 2
extensively, found material contradictions in their evidence and held
that their evidence is not reliable.
5. So far as the exercise of revisional jurisdiction against a
judgment of acquittal is concerned, binding authorities say that
revisional court cannot interfere with a judgment of acquittal merely
for the reason that a different view is possible. Interference with
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acquittal is called for only when the decision of the trial court
involved glaring injustice due to violation of any fundamental
principles of law, defect of procedure or error of law had resulted in
gross miscarriage of justice or when the judgment is palpably wrong
or perverse and the reasonings are unsustainable. Though revisional
court is entitled to re-appreciate the evidence for the limited purpose
of satisfying itself regarding illegality, irregularity or impropriety of the
judgment under challenge, it cannot sit in judgment over the findings
of the trial court as if in an appeal. Revisional court must also bear in
mind that the presumption of innocence against the accused stands
reinforced by their acquittal by the trial court. On going through the
judgment under challenge, I am not persuaded to think that findings of
the learned Chief Judicial Magistrate are palpably wrong requiring
interference. As such request for interference cannot be accepted.
Revision petition fails. It is dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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CRL.R.P. NO.114 OF 2001
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O R D E R
3RD DECEMBER, 2008