Davis v. Rev. Fr. George Panackal, Rev. Fr. Mathew Thadathil and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934 Crl.L.P..No. 242 of 2012 () --------------------------(AGAINST THE JUDGMENT IN CC.1288/2007 of J.M.F.C., CHALAKUDY, DTD.14.2.2012)** **ACCUSED(S)/PETITIONER/COMPLAINANT: ---------------------------------** **DAVIS,** **S/O KUNJUVAREETH, MALIYEKKAL, VACHALAKKAL HOUSE KORATTY, MURINGOOR, PIN-680 316.** **BY ADVS.SRI.K.A.SHAMSUDEEN SRI.K.J.MOHAMMED ANZAR SRI.V.K.MEETHIANKUNJU** **COMPLAINANT(S)/RESPONDENTS/ACCUSED NOS. 1 :** **-------------------------------------------** **1. REV.FR.GEORGE PANACKAL. V.C. DIRECTOR, DIVINE RETREAT CENTRE, MURINGOOR CHALAKKUDY, PIN-680 316.** **2. REV. FR. MATHEW THADATHIL V.C. ASST. PROCURATOR, DIVINE RETREAT CENTRE, MURINGOOR PIN-680 316.** **3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31.** **BY ADV.SRI.P.M.SANEER, PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 09-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 242 of 2012 ---------------------------------------Dated this the 9[th] day of July, 2012** ## **O R D E R** The complainant in a private complaint is the petitioner who seeks leave of this Court to prefer an appeal against the judgment dated 14.2.2012 in C.C.No.1288 of 2007 of the court of the Judicial First Class Magistrate, Chalakudy since the learned Magistrate acquitted the accused two in numbers who faced the prosecution for the offences punishable under Sections 323, 427 and 447 read with Section 34 of I.P.C. 2. The case of the complainant is that the complainant had been conducting a nursery and kennel business in the property having an extent of one acre at Muringoor abutting NH, surrounded by the property of the Divine Retreat Centre. According to the complainant, at about 2.30 p.m on 13.8.2008, the first accused along with four gundas trespassed into the property of the complainant and committed mischief by cutting six plantains and when the complainant reached Crl.L.P.No.242 of 2012 :-2-: there to question them, under the instigation of the first accused,the gundas pelted stones against him and he sustained injuries on his left leg and left palm and he fell down. According to the complainant, after the said incident, he was taken to the Taluk Head Quarters Hospital, Chalakudy for treatment wherein he was treated as an outpatient. It is the further case of the complainant that though a statement was preferred before the Koratty Police, the Police did not register a crime due to the influence of the accused. Therefore, he preferred the complaint in the trial court for the offences punishable under Sections 134,147,324,307,427,447 read with Section 149 of I.P.C. After recording the sworn statement of the complainant and three witnesses, the court took cognizance for the offences punishable under Sections 323,427,447 read with Section 34 of I.P.C., against the accused two in numbers. When the accused appeared in pursuance of the process issued, after hearing the accused, a formal charge was framed for the above offences which are read over and explained to them and they denied the same. Consequently, the complainant was ## Crl.L.P.No.242 of 2012 :-3-: proceeded further during which Pws.1 to 3 were examined and marked Ext.P1 wound certificate. After hearing the complainant and the defence and on the basis of the evidence and materials, the trial court has formulated five points for its consideration and finally, found in favour of the accused against the complainant and accordingly, all the accused are acquitted under Section 255(1) of the Cr.P.C. Against those findings and order of acquittal, the complainant proposes to file in an appeal for which leave of this Court is sought for. 3. I have heard Sri.K.A.Shamsudeen, learned counsel for the petitioner 4. On a careful perusal of the judgment, particularly paragraphs 9 and 10, it can be seen that the learned Magistrate has appreciated the evidence and materials on record properly. The learned Magistrate has specifically found that PW1/the complainant has no case and claim, when he had given Ext.D1 statement, that accused Nos.1 and 2 were present at the place of occurrence. The Magistrate has also Crl.L.P.No.242 of 2012 :-4-: found that as per Ext.D1 statement, the complainant came to know about the incident of cutting plantains as intimated by one Joy, one of his staffs in the nursery and the complainant had no occasion to witness the incident. As per the said statement, the learned Magistrate has found that the complainant has no case that his two aracanuts were cut and fell down by the accused. It is also specifically found that in Ext.D1 statement, the complainant has no case that PW2 has witnessed the incident except to the extent that PW2 had taken the complainant to the Taluk Head Quarters Hospital, Chalakkudi. It is on the basis of the above factual finding, the learned Magistrate has held that the subsequent evidence of PW1 before the trial court that the accused abetted the pelting of stones against the complainant is a foisted case and the complainant cannot be believed, especially when there is no averment in Ext.D1 statement to that effect. The absence of any averment to that effect in Ext.D1 statement, is fatal to the complainant, since Ext.D1 is dated 13.4.2007 which is an earlier version of the complainant regarding the incident. Crl.L.P.No.242 of 2012 :-5-: 5. The learned Magistrate has also found that there is culpable delay on the part of the complainant in filing Ext.D1. Though the incident has allegedly taken place on 13.8.2005, Ext.D1 was preferred on 13.4.2007 and there is a delay of about two years. 6. The learned Magistrate has also found that though the complainant has claimed that the accused trespassed into the property of the complainant, there is no cogent evidence regarding the boundary demarcation. The learned Magistrate has further found that regarding the causing of the hurt, as per Ext.D1 statement, the case of the complainant is that the persons, who were only present at the place of occurrence on 13.8.2005 at about 2.30 p.m., criminally intimidated him and pelted stones against him and there is nothing on his statement to infer that the accused were present at the place of occurrence. So, the learned Magistrate refused to believe the version of PWs.1 and 2 since there were serious doubts on the veracity of their evidence and the prosecution case. 7. Thus, going by the judgment, it can be seen that the learned Crl.L.P.No.242 of 2012 :-6-: Magistrate on applying his mind and after evaluation of the evidence, came to a specific finding and especially, when the complainant has no case that the accused were present at the place of occurrence as per his EXt.D1 statement. So the reasons assigned by the learned Magistrate to disbelieve the case of the complainant are correct and it cannot be said that those findings of the court below are perverse or illegal. Therefore, even though an appeal is entertained, there is no scope for interfering with the above finding of the court below and the order of acquittal recorded in favour of the accused. In a recent v. decision of the the Apex Court reported in **State of Rajasthan Darshan Singh @ Darshan Lal** [2012(4) Supreme 72] reiterating the limits of the appellate court, it was held that the appellate court can interfere with the order of acquittal only on exceptional circumstances and only when the judgment sought to be impugned is found to be perverse and the appellate court should bear in mind presumption of innocence of accused and that trial court's acquittal bolsters presumption of his innocence. In the present case, on examination of Crl.L.P.No.242 of 2012 :-7-: the facts and circumstances involved in the case, which is referred to by the learned Magistrate in the judgment sought to be impugned, especially in the light of the dictum laid down by the Apex Court, it can be seen that the petitioner has miserably failed to make out any exceptional circumstances to interfere with the order of acquittal and to hold that the judgment sought to be impugned is a perverse one. In the result, there is no merit in this petition and accordingly, the same is dismissed. **V.K.MOHANAN** , Judge MBS/ Crl.L.P.No.242 of 2012 :-8-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 Crl.L.P.No.242 of 2012 :-9-: O R D E R Dated:2. ..2011