Kerala High Court
Joykutty vs Reghu on 22 September, 2010
Author: V.K.Mohanan
Bench: V.K.Mohanan
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 2 Crl.R.P.No.2655 of 2010 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 3 Crl.R.P.No.2655 of 2010 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 4 Crl.R.P.No.2655 of 2010 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 5 Crl.R.P.No.2655 of 2010 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 6 Crl.R.P.No.2655 of 2010 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 7 Crl.R.P.No.2655 of 2010 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/