IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3719 of 2008()
1. VISWANATHAN, AGED 38 YEARS,
... Petitioner
Vs
1. RAJEESH KUMAR, S/O.RAVINDRAN,
... Respondent
2. PRAJEESH.K.P, S/O.HARIDASAN, AGED 25 YRS
3. HARIDASAN.K.P, AGED 58 YEARS,
4. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.R.SUDHISH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/05/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.3719 of 2008
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Dated this the 27th day of May, 2009.
ORDER
Public Prosecutor takes notice for respondent No.4.
2. Acquittal of respondent Nos.1 to 3/accused Nos.1 to 3 for offences
punishable under Sections 341 and 324 read with Section 34 of the Indian Penal
Code, under Section 248(1) of the Code of Criminal Procedure (for short, “the
Code”) is questioned in this revision at the instance of the defacto complainant.
Petitioner’s case is that on 30.12.2002 at about 9 p.m. on the public road in front
of Mahatma Arts Club respondent Nos.1 to 3 assaulted him and PW5 with
wooden sticks and cricket bat. Prosecution examined PWs1 to 5 and proved
Exts.P1 series and P2. Learned magistrate after consideration of the evidence
found that the case alleged against respondent Nos.1 to 3 is not proved beyond
reasonable doubt and acquitted them. It is contended by learned counsel that
material witnesses were not examined and that acquittal of respondent Nos.1 to
3 is not legal or proper.
3. In proof of alleged incident, prosecution examined the petitioner
(PW1) and PW5, allegedly injured persons. But inspite of learned magistrate
taking steps, CW6, medical officer who is said to have treated PWs 1 and 5
could not be traced since he was not available in the address given. Summons
issued to CW6 in her residential address also could not be served and it was
Crl.R.P.No.3719/2008
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returned. CW3, the independent witness was out of India and hence could not
be examined. What remained is the evidence of PWs 1 and 5, allegedly injured
persons. In the first information statement what PW1 stated is that respondent
No.2 wrongfully restrained him and one Sudheesh (he is not an accused) and
respondent No.2 beat him with cricket bat, he cried out, then respondent No.3
came there and beat him with wooden reaper. At that time PW5 came there
then respondent No.2 beat PW5 also. In the first information statement there
was no reference to the alleged involvement of respondent No.1. As against the
version of PW1 that it was respondent No.2 who beat PW5, the latter stated in
his evidence that Sudheesh ( not an accused in the case) beat him. It also came
out that though according to PW1 as stated in the first information statement,
himself and PW5 were assaulted with cricket bat, in the statement of PW5 to the
Investigating Officer under Section 162 of the Code, the weapons stated are
sticks and not cricket bat or reaper. Either way the stick or cricket bat were not
or could not be recovered. According to PWs 1 and 5 there was sufficient light at
the place of occurrence from the Club. Learned magistrate found that in the
mahazar for scene of occurrence or in the previous statement of PWs 1 and 5
there is no mention about the availability of light at the place of occurrence. It is
in these circumstances, learned magistrate gave benefit of doubt to respondent
Nos.1 to 3 and acquitted them.
Crl.R.P.No.3719/2008
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4. Interference with an order of acquittal is called for in revision only
in glaring cases of injustice resulting from violation of fundamental principles of
law or exceptional cases of defect of procedure or manifest error resulting in
flagrant miscarriage of justice. Learned magistrate has considered all materials
available and found that it is not sufficient to warrant conviction of respondent
Nos.1 to 3. Even if it is assumed that a different view was also possible, that
is not sufficient to interfere in revision.
Revision petition fails. It is dismissed.
THOMAS P.JOSEPH,
Judge.
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