Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 24TH DAY OF JULY 2024 / 2ND SRAVANA, 1946 CRL.REV.PET NO. 3092 OF 2010 AGAINST THE JUDGMENT DATED 05.08.2010 IN CRRP NO.76 OF 2008
OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM JUDGMENT
DATED 29.07.2008 IN CC NO.567 OF 2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I MUVATTUPUZHA REVISION PETITIONER/ACCUSED: JOLLY S/O.VARKEY, KIZHAKKEVEETTIL, EAST MARADI KARA,, MARADI VILLAGE, MUVATTUPUZHA. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN RESPONDENTS/PETITIONER/DEFACTO COMPLAINANT & STATE: 1 SAID MOHAMMED AGED 43, S/O. MUSTHAFA RAWATHER, THATTATHIL VEEDU, MARADI,, MUVATTUPUZHA. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. OTHER PRESENT: SMT.NIMA JACOB, PP THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.V.KUNHIKRISHNAN, J.
-------------------------------- Crl.R.P. No.3092 of 2010 ---------------------------------------------- Dated this the 24th day of July, 2024
ORDER
This criminal revision petition is filed against the
judgment dated 05.08.2010 in Crl.R.P. No.76/2008 on the file
of the Additional Sessions Judge (Adhoc-II), Ernakulam. That criminal revision petition was filed by the 1st respondent challenging the acquittal order passed by the Judicial First Class Magistrate Court, Muvattupuzha in C.C.No.567/2001.
2. The petitioner was charge sheeted by the Sub
Inspector of Police, Muvattupuzha alleging offence under Section 326 IPC. The prosecution case is that accused with an intention to cause grievous injury to Charge Witness No.1, beaten him on his left cheek with a wooden piece and caused serious injuries to him and there by committed the offence.
3. To substantiate the case, the prosecution examined
PWs 1 to 8 before the trial court and marked Exts.P1 to P5. MO1 is the material object. After going through the evidence and exhibits, the learned Magistrate acquitted the petitioner who is the accused in the case as per judgment dated 29.07.2008.
4. Aggrieved by the acquittal order, State has not filed
any appeal. But the defacto complainant / injured challenged the acquittal order before the Sessions Court by filing Crl.R.P.No.76/2008. The learned Additional Sessions Judge (Adhoc-II), Ernakulam allowed the revision and remanded the case to the trial court for fresh disposal in accordance with law. Aggrieved by the remand order, this criminal revision petition is filed.
5. When this criminal revision petition came up for
consideration, this Court stayed the further proceedings before the trial court after the remand order passed by the Sessions Court. Notice was issued to the 1st respondent in the address shown in the criminal revision petition filed by him. The notice was returned with an endorsement “no such addressee”. This criminal revision petition is pending before this Court for the last 14 years. The trial court proceedings after the remand order is stayed by this Court and the matter is pending before the trial court also. In such a situation, the case was listed before this Court for disposal. Whether a fresh notice is to be issued to the 1st respondent can be decided by this Court after considering the merit of the case.
6. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
7. The counsel for the revision petitioner submitted
that, the trial court, based on the evidence available, acquitted the accused with cogent reasons and there is nothing to interfere by the learned Sessions Judge in a revision. The counsel submitted that the continuation of the proceedings against the petitioner is an abuse of process of the Court because the calendar case was registered in the year 2001 and the revision petitioner is facing the Democle’s sword of prosecution for the last 24 years and therefore this Court may kindly decide the revision on merit.
8. This Court perused the impugned judgment of the
Additional Sessions Judge (Adhoc-II), Ernakulam. When the criminal revision petition came up for consideration before the learned Sessions Judge, there was no appearance for the 1 st respondent. There was no appearance for the revision petitioner also before the revisional court. In the absence of the 1st respondent and the revision petitioner herein, the learned Sessions Judge perused the order and set aside the acquittal order passed by the trial court and remanded the case. So in effect the impugned order passed by the revisional court is an order without hearing the 1 st respondent or the revision petitioner.
9. This Court also perused the order of acquittal passed by the trial court. It will be better to extract the relevant portion of the trial court judgment:
“8. Here in this case PW1 has deposed about the case while examination before court. According to him, he has sustained injury on 12.3.01 at about 8.30 pm. He has deposed that the accused restrained him while going through the road in bike and there arose a scuffle between them. When he was shout to proceed towards front the accused took a wooden piece and beaten him. On going through the evidence tendered by PW1 it is clear that he has given an exaggerated version regarding the incident. He while examination has stated that in the incident he lost two tooth and there is no such case for the prosecution. As per the case of prosecution the accused has beaten PW1 on the left side of his face and he sustained fracture of left mendiable. What PW1 has stated while examination before court is
that the accused has beaten him below his ear and he sustained fracture and lost his tooth. No doubt the testimony of PW3 coupled with the certificate given by him and examination of PW1 reveals that PW1 sustained fracture of mandiable in the incident. But the loosing of tooth as alleged by PW1 while examination is not supported by the medical evidence available before court.
9. It is also stated by him that he was not in a
position to speak even a single word after the incident and after 40 days he could speak a word. It is further stated by him that the history of assault and the injuries were narrated by him to the doctor by writing on a paper. But PW3, the doctor while examination has stated that PW1 was not having any difficulty in speaking and narrating the history of injury. PW7 also stated that the incident was narrated by PW1 himself on the next day of the incident. So it is evident that PW1 has given an exaggerated version regarding the incident. Admittedly PW4 has deposed in support of the case of prosecution. But the evidence tendered by him is not in tune with the case of prosecution. As per the case of prosecution he was standing in front of the cool bar near the place of incident and witnessed the incident. But while examination he has stated that he was returning home at the time of incident. According to him he saw the scuffle between the
accused and PW1 and he interfered in the matter and removed them. Then the accused had gone to his house and came with a wooden piece and attacked PW1 by beating on the right side of his face. The statement given to the police is that the accused took the wooden piece from near the place of incident and attacked PW1. So the evidence tendered by PW1 while examination before court is not in strict support of the case of prosecution.
10. As mentioned above it is the case of the accused
that when PW1 tried to attack him he fallen down with the stick and sustained injury. The doctor while examination as PW3 has opined the possibility of sustaining the injury noted in Ext.P2 wound certificate in a fall. Ext. D1 and D2 marked in evidence reveals that the accused also has sustained injury in the incident. But prosecution has not offered any explanation for the injuries sustained by the accused. On going through the available evidence I am of the view that the prosecution has not succeeded in bringing out the actual incident occurred in which both PW1 as well as the accused have sustained injury. Hence the point is answered against the prosecution. ”
10. A perusal of the above judgment would show that
the trial court considered all the matter in detail and thereafter concluded that there is no evidence to convict the revision petitioner. This Court also perused the order passed by the learned Sessions Judge in the revision. As I observed earlier, the order is passed without hearing the revision petitioner or the 1st respondent. When the trial court, after watching the demeanor of the witness and appreciating the case, acquit an accused, the jurisdiction of the appellate court to interfere with the acquittal order is very limited. But if it is a revision against acquittal by the defacto complainant, the jurisdiction of the revisional court is much less than the jurisdiction of an appellate court considering the appeal against acquittal.
11. After going through the impugned order passed by
the revisional court, I am of the considered opinion that this is not a fit case in which the revisional court ought to have interfere with the matter especially when there was not even a representation for the 1st respondent and the revision petitioner. Notice was issued to the 1st respondent in the address shown in the revision petition filed by him. But it is returned with an endorsement no such addressee. Admittedly no appeal is filed against the acquittal by the State. In such circumstances, I am of the considered opinion that this
revision need not be retained here and the impugned order
can be set aside. Therefore, this Criminal Revision Petition is allowed. The judgment dated 05.08.2010 in Crl.R.P. No.76/2008 on the file of the Additional Sessions Judge (Adhoc-II), Ernakulam is set aside and the judgment dated 29.07.2008 in C.C.No.567/2001 of the Judicial First Class Magistrate Court, Muvattupuzha acquitting the revision petitioner is confirmed. Issue a copy of this order to the trial court forthwith. sd/- P.V.KUNHIKRISHNAN JV JUDGE