IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3305 of 2008()
1. VALSAMMA
... Petitioner
Vs
1. STATE OF KERALA AND OTHERS
... Respondent
For Petitioner :SRI.P.C.HARIDAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 3305 OF 2008
............................................
DATED THIS THE 6th DAY OF OCTOBER, 2008
ORDER
This petition is filed under Section 397 and 401 of Code of
Criminal Procedure challenging the order of acquittal passed by
Judicial First Class Magistrate, Erattupetta in C.C.721 of 2006.
Petitioner is the defacto complainant. His case is that on
16.10.2006 at 7.30 pm, three accused persons trespassed into
the courtyard of her residential building and first respondent hit
on the front door of the house with a log-block and respondents
2 and 3 kicked on the door after uttering obscene words and all
of them caused damages to the wooden door to the tune of
Rs.1500/- and it was done in furtherance of their common
intention and thereby committed offences under Section 448,
427, 294(b) read with 34 IPC. Police has registered the case on
the basis of the statement recorded from petitioner on
17.10.2008 and after completing the investigation, laid the
charge which was taken cognizance by the Magistrate.
2. Learned Magistrate, on the evidence of Pws 1 to 6,
Exts.P1 to P3, Mos 1 to 4, Dws 1 and 2 and Exts.D1 to D4,
acquitted the accused under Section 255(1) of Code of Criminal
CRRP 3305/2008 2
Procedure. Learned Magistrate also directed to register a case
against the petitioner under Section 250 of Code of Criminal
Procedure finding that there was no reasonable cause for
making the accusation against the accused.
3. The argument of the learned counsel appearing for
petitioner is that learned Magistrate did not properly appreciate
the evidence of Pws 1 to 5 and on the evidence, it should have
been found that accused trespassed into the courtyard of the
house of the petitioner and caused damages to the front door
after uttering obscene words and committed the offences and
therefore the order of acquittal is illegal.
4. Though this court is competent to interfere with an order
of acquittal, in exercise of the revisional powers, it could be done
only if there was glaring defect in the procedure followed or
manifest error on a point of law or flagrant miscarriage of
justice. On hearing the learned counsel and going through the
judgment of the learned Magistrate, I do not find any perverse
appreciation of evidence. No material evidence was omitted to
be appreciated. As rightly found by the learned Magistrate,
Ext.P1 is the first version of the incident disclosed. As per
Ext.P1, at about 5.30 pm, there was an incident and the
CRRP 3305/2008 3
allegation was that husband of the petitioner had shown his
private parts to a minor girl and thereafter petitioner remained
inside her house and at about 7.30 pm, all the accused, in
furtherance of their common intention, trespassed into the
courtyard and uttering obscene words, caused damages to the
front door and committed the offences. Learned Magistrate, on
the evidence, found that police has registered Crime 361 of 2006
based on Ext.D2 F.I.Statement in respect of the first incident
against husband of the petitioner for the alleged misbehaviour
and police had reached the scene of occurrence at about 7 pm
and husband of the petitioner had got inside the house and
locked the door from inside and they were not prepared to open
the door and therefore husband of petitioner could not be
arrested. If that be the case and the incident had happened at
7.30 pm as alleged in Ext.P1, it could have occurred at a time,
when police was present at the scene of occurrence. In view of
the improbability of the very prosecution case, at the time of
evidence, as PW1, petitioner and PW2, her husband and PW3,
their son attempted to shift the time to between 6 and 7 pm. On
going through the evidence, it cannot be said that appreciation
of evidence was perverse. There is no reason to interfere with
CRRP 3305/2008 4
the order of acquittal.
Learned counsel appearing for petitioner then argued that
direction to register M.C.32 of 2008 is to be quashed. I do not
find any reason to interfere with the discretion exercised by the
learned Magistrate under Section 250 of Code of Criminal
Procedure. Petitioner is entitled to raise all his contentions
while defending M.C.32 of 2008.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-