THANKACHAN ZACHARIAS Vs. VARGHESE KURIAN

JUDGEMENT

(1.) THE complainant in a private complaint is the appellant as he is aggrieved by the judgment dated 5.5.2007 in C.C.No.996 of 2000 of the court of Judicial First Class Magistrate-Changanacherry, by which the learned Magistrate acquitted all the accused under section 248(1) of Cr.P.C., who faced the prosecution for the offence punishable under section 430, 431 r/w 34 of IPC.

(2.) INITIALLY, the complainant had preferred a private complaint as C.M.P.No.9773 of 1999 before the court below which was forwarded under section 156(3) of Cr.P.C. to the Changanacherry police station wherein crime no.799 of 1999 was registered. But the police after investigation, referred the case as mis statement of fact. It is thereafter the complainant approached the court below again by filing C.M.P.No.3944/00 as protest complaint against the police report. The learned Magistrate after recording the sworn statements of the complainant and the two witnesses, the case was taken on file for the offence punishable under section 430, 431, 432 r/w 34 of IPC and the accused appeared on summons. Thereafter, Pws.1 to 4 were examined from the side of the complainant and Exts.P1 to P13 were marked. Thereafter, on hearing both the complainant as well as the accused a formal charge was framed against the accused for the offence punishable under section 430, 431 r/w 34 of IPC and the accused pleaded not guilty to the charge. The charge was answered by the counsel for A1 to A4. Thereafter, PW1 was further examined and Exts.P14 to P22 were marked. The trial court, on the basis of the rival contentions advanced by the parties and on the basis of the evidence and materials on record, formulated four points for its consideration and finally found that though the complainant has succeeded in proving the existence of the Chethipuzhakadavu thodu as well as the obstruction caused to the thodu, the complainant has failed to prove that it was the accused who created obstruction in the thodu. Accordingly, the accused are acquitted under section 248(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.

(3.) ON the other hand, learned counsel for the respondent/accused vehemently submitted that as correctly held by the learned Magistrate, the complainant has miserably failed to positively prove that it was the accused who committed the mischief. In order to substantiate the above contention, learned counsel took me through the deposition of Pws.1 and 2 and pointed out the contradictions and omissions contained therein. According to the counsel, the appellant has miserably failed to make out a case so as to interfere with the order of acquittal recorded by the learned Magistrate and therefore the appeal is liable to be dismissed.