Kelu vs Kumhambu and Another

P. Govinda Menon, J.—This revision petition is against the order of acquittal passed by the First Class Magistrate, Payyannur in C. C. No. 36 of 1959. The accused were charged by the Sub Inspector of Police, Peringome. The allegation was that the two accused in the case committed theft of arecanuts from four areca trees belonging to P. W. 1, the complainant and his eider brother. P. W. 2 is the watchman under P. W. 1 who was looking after the property. He speaks about the actual theft. P. W. 3 is a witness who had attested the mahazar Ext. P. 4 prepared by the Sub Inspector and his evidence does not advance the prosecution case. P. W. 4 is the person to whom the arecanuts were sold by the accused. According to the accused they plucked the nuts only from the trees included in their paramba. The only evidence adduced in the case about possession was that of P. Ws. 1 and 2, both highly interested. No disinterested neighbours were examined. It is now stated that the complainant wanted to examine the Amsom Menon and produce certain documents, but they were disallowed by the learned Magistrate. Beyond the mere statement of the revision petitioner, there is nothing else to prove this. I do not know why the learned counsel who appeared for the complainant did not think it necessary to put in a petition for allowing those and requesting the court to examine the Amsom Menon. P. W. 1 when cross-examined blurted out that these areca trees are situated in a property about which there was a civil suit pending, but later in re-examination corrected himself by saying that the suit is in respect of another property. The learned Magistrate on a consideration of the entire evidence and the circumstances and probabilities of the case found that the prosecution has not succeeded in proving the case free from doubt and that the areca trees were in the possession of the complainant. He also found that no dishonest intention could be attributed to the accused and acquitted the accused. The Slate has not come up in appeal. But the lst informant has come up in revision and wants that the acquittal order to be set aside. The High Court shall always be reluctant to interfere with an order of acquittal specially when the real dispute between the parties can be property decided in a civil suit. In D. Stephens Vs. Nosibolla, it has been held that:

The revisional jurisdiction conferred on the High Court under S. 439 Cr. P. C, is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under S. 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.

This decision has been followed in other cases of the Supreme Court.

Bearing these principles in mind, I think this is not a case where I should interfere in revision with the order of acquittal. The petition is therefore dismissed.