Kerala High Court
Joseph Cherian vs State Of Kerala Represented By on 6 October, 2006
Author: R. Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3346 of 2006()
1. JOSEPH CHERIAN,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. SIVARAJAN,
For Petitioner :SRI.V.P.K.PANICKER
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :06/10/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 3346 of 2006
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Dated this the 6th day of October, 2006
O R D E R
This revision petition is preferred by the defacto complainant/PW1 in a prosecution under Sections 447 and 379 I.P.C. against the impugned judgment of acquittal of the respondent/accused.
2. The prosecution alleged that at 5 p.m. on 8.2.2000 the accused had criminally trespassed into the property in the possession of PW1 and had plucked coconuts from the trees in that property. PWs. 2 to 4, who happened to pass through the property at the relevant point of time, supported the allegations. PW1 lodged Ext.P1 F.I. statement at 10 a.m. on 10.2.2000. According to him there were disputes regarding the property and he was afraid to go to the property and take necessary action on the date of the incident when he got information about the commission of the crime. Investigation was completed and final report was filed by PW8. Cognizance was Crl.R.P.No. 3346 of 2006 2 taken. Charge was raised. Consequent to the plea of not guilty raised by the respondent/accused, the prosecution examined PWs. 1 to 9 and proved Exts.P1 to P3. No material objects were marked.
3. PW1 is the defacto complainant. He has not witnessed the occurrence. Ext.P1 is the F.I. statement lodged by him. PWs. 2 to 4, as stated earlier, claim to have witnessed the occurrence. PW5 is the person who was asked by the police to go up the tree and remove the `klanjil' to show that coconuts were recently cut and removed from the `klanjil'. PW6 is an attester to Ext.P2 scene mahazar. PWs. 7 to 9 are police officials, who had various roles to play in the registration of the crime, its investigation and filing of the charge sheet.
4. The accused, in the course of examination under Section 313 Cr.P.C., took up a defence of total denial. No defence evidence whatsoever was adduced.
5. The learned Magistrate, on an anxious evaluation of all the relevant inputs, came to the conclusion that it was not safe to accept and act upon the evidence of PWs. 1 to 4 on the theory of exclusive possession of Crl.R.P.No. 3346 of 2006 3 PW1 of the property and the alleged cutting and removal of coconuts. Accordingly the learned Magistrate proceeded to pass the impugned order conceding to the accused the benefit of doubt.
6. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned order, the learned counsel for the petitioner submits that the learned Magistrate erred grossly and gravely in coming to the conclusion that there is no satisfactory evidence of possession and that the evidence of PWs. 2 to 4 regarding the overt act proper cannot be accepted.
7. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this Court sitting as a court of revision called upon to consider the challenge against the findings of fact recorded by the trial court, on which the judgment of acquittal is founded. It is by now trite that the trial court has a great advantage in the matter of appreciation of evidence as the trial court gets the opportunity to see the witnesses perform in the witness stand before it. An alert trial court is in a postilion to perceive many a vital inputs, which can justifiably weigh with such court in the matter of appreciation of evidence, even when such inputs is not Crl.R.P.No. 3346 of 2006 4 reduced to black and white in the deposition recorded. I must also be alert to the principle that the initial presumption of innocence in favour of the accused gets further fortified by the judgment recorded by the trial court. Compelling reasons must be shown to exist to persuade a court of revision to interfere with the findings of fact and upset a judgment of acquittal. So construed, I note that there is no specific admission on the part of the accused in the course of trial about the possession of the property by PW1. Yes, the learned counsel is correct in the submission that no specific details regarding this dispute about possession is brought out during the cross examination of witnesses. But the court cannot be guilty of the classic error of putting the cart before the horse. It is for the prosecution to establish the case of possession also in a prosecution for criminal trespass and theft. So reckoned, I am unable to agree that the court below has committed any such gross error in choosing not to accept and act upon the oral evidence of PWs. 1 to 4.
8. I have been taken through the entire evidence by the learned counsel. I am not persuaded to invoke the revisional jurisdiction of superintendence and correction against the crucial findings of fact recorded Crl.R.P.No. 3346 of 2006 5 by the court below.
9. This revision petition is hence dismissed.
(R. BASANT) Judge tm