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.