KAMMUKUTTY ALIAS ABDURAHIMANKUTTY Vs. MUHAMMEDBAVA

JUDGEMENT

(1.) This revision petition at the instance of PW 3, is directed against the order of acquittal of seventeen accused and discharge of A6 & A14 in C. C. 76 of 1986 on the file of Judicial Magistrate of First Class, Tirur. Prosecution case is that the nineteen accused committed offences under S.143, 147, 148. 447 and 427 read with S.149 IPC, by entering on the property of PW 3 at or about 2 a.m. on 5-12-1985 and demolishing the compound wall. PWs. 3 to 6 speak to the occurrence. Learned Magistrate observed that, 'if the evidence of PWs. 4 & 5 is to be believed, then the version of PWs. 3 & 6 cannot be believed and vice versa'. If there are two versions, it means not, that both are false. Court has to sift the chaff from the grain; unless the Court thinks that both versions are not reliable, the short cut path to acquittal is not the legitimate path; that precisely is the path the Magistrate followed. He again observed that PW 6 did not see any stick in the hands of Ali. Occurrence was at 2 a.m. There could not have been very bright lights, and perhaps the witnesses were only half awake. Perfect precision in details, is not the virtue of every witness. Powers of observation and powers of retention vary from witness to witness, and dimensions of perception too, vary. In Abdul Gani v. State ( AIR 1954 SC 31 ), Supreme Court deprecated the tendency to take the easy course of holding the evidence discrepant and rejecting the whole case as untrue. In State of U.P. v. Anil Singh ( AIR 1988 SC 1998 ) the Court reiterated:

(2.) Learned counsel for accused submitted that the order could be sustained on other grounds. Question is whether the reasons stated by the Magistrate justify his findings. The revisional power is exercised not only over his decision, but also over the decision making process. The question is not whether the order could be justified for other reasons, but whether such reasons were in his mind.

(3.) Counsel further submitted that, in a revision against the order of acquittal, interference would be justified only on limited grounds. True, and such grounds exist in this case. Material evidence was shutout from consideration, and the Magistrate misdirected himself on law, persuading himself to the view that if there are two versions, both are unworthy of credit. I hasten to add that I am not expressing any opinion on the merits. But, I am satisfied that the order is unsustainable, as it was made on wrong premises of law and without application of mind to the evidence on record.