KOSHY JOHN vs STATE OF KERALA

The revision petitioner herein is the de facto complainant in C.C 647/2001 of the Judicial First Class Magistrate Court, Mavelikara, and the respondents 2 to 12 are the accused Nos.1 to 6 and 8 to 11 in the said case.

The revision petitioner challenges the judgment of acquittal of the trial court dated 31.10.2005 by which the respondents 2 to 11 were acquitted of the charges brought against them under Sections 143, 147, 148, 427 and 452

I.PC.

The prosecution case is that about 7.45 p.m on 13.2.2001, a gang of persons including the accused trespassed into the court-yard of the house of the de facto complainant and committed some acts of mischief there by damaging the doors and windows of the house and also a car parked at the car porch, and they all did it due to some political animosity. The revision petitioner lodged complaint at 11 p.m on the same day, and the Police proceeded for investigation. After investigation, the Police submitted final report in court. The accused pleaded not guilty to the charge framed against them under Sections 143, 147, 148, 427 and 452 read with 149 I.P.C .

The prosecution examined six witnesses and proved Exts.P1 to P5 documents in the trial court. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C and pleaded a defence of total denial. One witness was examined on the defence side and Exts.D1 to D3 were also marked.

On an appreciation of the evidence, the learned Magistrate found that there is no convincing evidence to prove the alleged offences beyond reasonable doubt, and that the evidence given by the main witnesses is not consistent. Accordingly, the accused Nos.1 to 6 and 8 to 11 were found not guilty of any of the offences alleged. The case against the 7th accused was split up and refiled when he remained consistently absent.

The short point for consideration is whether there is any illegality or irregularity or impropriety in the judgment of the court below for interference by this Court in revision.

Of the six witnesses examined in the trial court, PW1 is the de facto complainant and PW2 to PW4 are the witnesses who claimed to have witnessed the incident. PW5 is the Sub Inspector who investigated the case. The main evidence is that of PW1 to PW4.

During trial, PW1 stated that the incident actually happened at about 7.45 p.m, and that he made complaint at about 10 p.m. When cross-examined by the defence, he also stated that before making a written complaint he had informed the Police over telephone about the incident and the Police had accordingly reached there. He does not know who attended the telephone or whether the Police had taken any action on the oral complaint made by him over telephone. Anyway, his evidence shows that the Ext.P2 First Information Statement in this case was preceded by an oral complaint, but there is nothing to show that the Police had taken any action on such complaint, or what was the first information given by PW1 to the Police over telephone.

If he had given such information containing all details regarding the commission of the offence, over telephone, the Ext.P2 statement will lose its sanctity as the first information statement, as rightly observed by the learned Magistrate.

An appreciation of the evidence given by PW2 to PW4 will show that these persons had not in fact witnessed the incident in the night. The first information statement shows that the alleged trespass was made by a mob consisting of about 50 persons and they made trespass after damaging the compound gate. But the scene mahazar does not show that any damage was caused to the compound gate. PW1 gave evidence regarding the extensive damage caused to the car parked at the car

porch. This is also not substantiated by the scene mahazar prepared by the Police without any delay.

On an appreciation of the evidence given by PW3 to PW5, I find that these persons had not in fact actually witnessed the incident and they had also not clearly identified the members of the mob gathered there. There is reason to believe that they gave evidence in court, or they even gave statements before the Police during investigation on the basis of what PW1 or somebodyelse told them. If so, the evidence given by them will have to be treated as hear-say evidence.

On an examination of the evidence given by PW2, the complainant, I find that his evidence is not fully consistent with the statements in the Ext.P2 complaint. As regards the number of the persons who made trespass or as regards the directions to which they escaped after the incident, or as regards the extent and measure of damage caused to the house and the car, his evidence is not consistent with the statements in the Ext.P2 complaint. I find reason to believe that PW3 to PW5 had not in fact witnessed the actual incident and their evidence is on the basis of what they heard or collected from the others including PW2. I find that the court below rightly found the accused not guilty of any of the offences alleged. I find no merit in this revision for interference on the ground of any illegality or impropriety.

In the result, this revision petition is dismissed.