FELIX Vs. STATE

JUDGEMENT

(1.) This revision is filed by a de facto complainant in a case instituted on a police report. The revision petitioner is a priest attached to St. Jacob Church, Mayyanadu and he lodged a complaint at the Paravoor Police Station alleging that respondents 2 to 4 herein, accused Nos. 1 to 3, trespassed into the church, destroyed a jug containing holy water and also caused damage to the mike which was being used by PW 2 for reading Bible. The incident was said to have taken place at 11.30 p. m. on 9-4-1977. The complaint was lodged with the police only on 12-4-1977. On the basis of a charge - sheet filed by the police under S.447 and 427 read with S.34 I.P.C. the accused persons were put on trial before the Judicial Magistrate of Second Class, Quilon, who after taking cognizance of the offences, issued processes to the accused persons. The first accused appeared in pursuance of the process served on him; but the processes issued to the other accused were returned unserved as their whereabouts were not known. Therefore the case was proceeded against the first accused alone and on the conclusion of the trial, finding that there was no satisfactory and reliable evidence in support of the charges against the accused, the learned magistrate acquitted not only the first accused but also the other accused persons.

(2.) The learned advocate appearing for the revision petitioner strongly assailed this order of acquittal on the ground that there was sufficient evidence against the accused persons to find them guilty of the offences with which they were charged; that in any view, the Trial Court committed a serious mistake in acquitting the other accused persons who were not before that court.

(3.) PW 1, the first informant in the case, and PWs 2 to 5, occurrence witnesses, are the main witnesses examined in support of the prosecution case. PW 6 is the Head Constable who inspected the scene of offence and prepared the scene mahazar and PW 7, is the Sub Inspector who verified the investigation of the Head Constable. It was mainly relying on Ext. P2 that the counsel strongly contended that in view of the clear confession of the first accused in Ext. P2 the ' Trial Court should not have acquitted him. Ext. P2 is said to be a letter written by the first accused to PW 1 on 11-4-1977 and it was on the next day that PW 1 filed the complaint before police. Ext. P2 was read out to me. There is no confession of any of the offences with which the first accused was charged in this letter. On the other hand, he has stated in Ext. P2 that it was a boy whose name has been given there who destroyed the jug and caused damage to the mike. Although it is the case of the prosecution that the Holy Book and the mike were damaged, the Trial Court did not notice any damage on the mike which had been produced before it. The Head Constable who inspected the scene of offence and investigated into the case did not notice any damage to the Holy Book nor was any such damage brought to his notice. The evidence of the witnesses in the case has been discussed in some detail and the material discrepancies and contradictions brought out in their evidence have been enumerated by the Trial Court which has given good reasons for refusing to act on their evidence. The State has not chosen to file an appeal against acquittal and, as stated earlier, this is a revisional the instance of a de facto complainant. There is no illegality or irregularity or impropriety committed by the Trial Court in acquitting the first accused. The views and conclusions of the Trial Court in acquitting the first accused cannot be said to be unreasonable, perverse or shocking to judicial conscience. But the learned magistrate has committed a clear and serious illegality in acquitting accused Nos. 2 and 3 who were not tried by that court. Although summons were issued to accused Nos 2 and 3, processes were not served on them and they did not appear before the Trial Court. The particulars of the offences with which they were charged by the police had not been put to them. Although the Trial Court has stated in the judgment that accused Nos. 2 and 3 are not available and the processes issued against them returned unserved stating that their whereabouts are not known and the case was proceeded against the first accused alone surprisingly accused Nos. 2 and 3 were continued in the array of parties and the case was not split up. Really there cannot be any question of acquittal of these accused who have not been tried. The Trial Court itself has stated that the case was proceeded against the first accused alone. The order of the Trial Court acquitting accused Nos. 2 and 3 is illegal and has to be quashed.