Kerala High Court
Joseph @ Ouseppachan vs The State Of Kerala on 3 July, 2026
2026:KER:48614
Crl.R.P.No.2448 & 2493 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 3RD DAY OF JULY 2026 / 12TH ASHADHA, 1948
CRL.REV.PET NO. 2448 OF 2006
AGAINST THE ORDER/JUDGMENT DATED 31.05.2006 IN CRL.A
NO.180 OF 2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,
THODUPUZHAORDER ARISING OUT OF THE ORDER/JUDGMENT DATED
06.06.2006 IN CC NO.82 OF 1999 OF JUDICIAL MAGISTRATE OF
FIRST CLASS, (MUNSIFF MAGISTRATE COURT) ADIMALI
REVISION PETITIONERS/APPELLANTS 1 & 2/ACCUSED 1 & 3:
1 BABU @ BAVA
PALLIPARAMBIL VEEDU, PONMUDI KARA, KONNATHADY
VILLAGE.
2 SAJI
S/O. VALLON CHELATHUMALIYIL VEEDU, NADUKANI
BHAGOM, PONMUDI KARA,, KONNATHADI VILLAGE.
BY ADVS.
SRI.RENJITH RAJAPPAN
SMT.ANUGRAHA CYRIAC
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADVS.
SMT. TANYA JOY-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 03.07.2026, ALONG WITH CRL.REV.PET.2448/2006,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.R.P.No.2448 & 2493 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 3RD DAY OF JULY 2026 / 12TH ASHADHA, 1948
CRL.REV.PET NO. 2493 OF 2006
AGAINST THE ORDER/JUDGMENT DATED 31.05.2006 IN Crl.A
NO.197 OF 2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,
THODUPUZHAARISING OUT OF THE ORDER/JUDGMENT DATED
06.06.2005 IN CC NO.82 OF 1999 OF JUDICIAL MAGISTRATE OF
FIRST CLASS, (MUNSIFF MAGISTRATE COURT) ADIMALI
REVISION PETITIONER/APPELLANT/ACCUSED NO.2:
JOSEPH @ OUSEPPACHAN
S/O. AUGUSTY, KANATHIL HOUSE,, PONMUDI KARA,
KONNATHADY VILLAGE,, ADIMALY.
BY ADV SRI.SOJAN MICHEAL
RESPONDENT/RESPONDENT/COMPLAINANT:
THE STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
OTHER PRESENT:
GP-SMT.TANYA JOY
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 03.07.2026, ALONG WITH Crl.Rev.Pet.2448/2006,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.R.P.No.2448 & 2493 of 2006
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COMMON O R D E R
(Dated this the 3rd day of July, 2026)
These Criminal Revision Petitions have been filed
under Sections 397 and 401 of the Code of Criminal
Procedure, challenging the judgment of conviction and the
order of sentence passed against the revision petitioners
for the offences punishable under Sections 143, 144, 147,
148, 332 r/w 149 of the Indian Penal Code by the Judicial
First Class Magistrate Court, Adimaly, in C.C. No. 82/1999,
dated 06.06.2005, which was allowed in part in appeal by
the Additional Sessions Court (Adhoc)-II, Thodupuzha by a
common judgment in Criminal Appeal Nos.180/2005 &
197/2005 dated 31.05.2006. The revision petitioners in Crl.
R.P. No. 2448 of 2006 are accused Nos. 1 and 3, while the
revision petitioner in Crl. R.P. No. 2493 of 2006 is accused
No. 2 in C.C. No. 82 of 1999 on the file of the Judicial First
Class Magistrate Court, Adimaly.
2. The prosecution case is that, on 30.10.1998 at
about 12.00 a.m., at Kudakallu Bhagam of the Reserve
Forest, Mannamkandom Village, inside a cave, the
accused, with the intention of assaulting CWs 1 to 13, who
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were Forest Officers, and thereby obstructing them in the
discharge of their official duties, formed themselves into
an unlawful assembly and in prosecution of the common
object of the said assembly, they committed rioting while
being armed with deadly weapons such as axes, a
country-made gun, and sticks. It is further alleged that the
1st accused struck CW2 on the shoulder with an axe,
causing a cut injury. The 2nd accused attempted to beat
CW1 with the butt portion of a country-made gun. The 3rd
accused is alleged to have beaten CW3 on the left elbow
and beaten CW4 on the left shoulder and left thigh, and
CW5 on the back, with a stick, thereby causing hurt. Thus,
the accused are alleged to have committed the offences
punishable under Sections 143, 144, 148 and 332 r/w 149
of the IPC.
3. During the trial, from the side of the
prosecution, PW1 to PW11 were examined and marked
Exts. P1 to P6. MO 1 was exhibited and identified.
However, no evidence whatsoever was produced from the
side of the defence.
4. Upon appreciation of the evidence on record,
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the trial court found the 1st accused guilty of the offences
punishable under Sections 143, 144, 147, 148 and 332 r/w
Section 149 of the IPC, and convicted and sentenced him
to undergo simple imprisonment for three months for the
offence punishable under Section 143 of the IPC. For the
offence punishable under Section 148 of the IPC, the 1st
accused was sentenced to undergo simple imprisonment
for one year, and for the offence punishable under Section
332 of the IPC, he was sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.1,000/-.
In default of payment of the fine, he was directed to
undergo simple imprisonment for one month. No separate
sentence was awarded for the offences punishable under
Sections 144 and 147 of the IPC. The accused Nos. 2 to 5
were found guilty of the offences punishable under
Sections 143, 147 and 332 r/w Section 149 of the IPC, and
were sentenced to undergo simple imprisonment for three
months for the offence punishable under Section 143 of
the IPC. For the offence punishable under Section 147 of
the IPC, the accused Nos. 2 to 5 were sentenced to
undergo simple imprisonment for one year. For the offence
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punishable under Section 332 of the IPC, the accused Nos.
2 to 5 were sentenced to undergo rigorous imprisonment
for one year and to pay a fine of Rs.1,000/- each. In default
of payment of the fine, they were directed to undergo
simple imprisonment for one month. The fine amount, if
realised, was ordered to be given to PW2 as
compensation.
5. Aggrieved by the said judgment, accused Nos.
1 to 5 preferred Criminal Appeal Nos. 180 and 197 of 2005
before the Additional Sessions Court, Thodupuzha. The
learned Additional Sessions Judge (Adhoc)-II, Thodupuzha,
who heard the appeals, allowed them in part and modified
the sentence imposed on the accused. The conviction and
sentence passed against the accused Nos. 4 and 5 were
set aside, and they were acquitted. The conviction passed
against accused Nos. 1 to 3 for the offences punishable
under Sections 143, 144, 147 and 148 read with Section
149 of the IPC was also set aside. However, the conviction
of accused nos.1 to 3 for the offence punishable under
Section 332 read with Section 34 of the IPC and the
sentence imposed by the trial court for the said offence
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was confirmed by the appellate court. Aggrieved thereby,
accused Nos. 1, 2 and 3 have filed the present revision
petitions.
6. Heard the learned counsel for the revision
petitioners and the learned Public Prosecutor. The records
were also perused.
7. The learned counsel for the revision petitioners
assailed the judgment mainly on the ground that the
identification of the accused by the witnesses, namely,
PW2, PW3, PW7 and PW11, who are the forest officials
alleged to have sustained injuries in the incident, as well
as the other forest officials who were present at the scene,
is not at all convincing. According to the learned counsel,
the identification of the accused by PW2, PW3, PW7 and
PW11, during the course of the trial, is omnibus in nature,
and such identification is unreliable. The learned counsel
for the revision petitioners further submitted that the
identification of the accused by the witnesses for the first
time before the court, after six years of the incident,
cannot be acted upon, particularly since the same is
corroborated by a test identification parade. It was further
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urged that the incident allegedly occurred at about 12.00
a.m., inside a forest, thereby rendering the identification
inherently doubtful. On these premises it was urged that
the accused are entitled to be acquitted.
8. Per contra, the learned Public Prosecutor
submitted that there is no illegality, impropriety, or
perversity in the impugned judgment warranting
interference by this Court in the exercise of its revisional
jurisdiction.
9. Before delving into the question whether any
interference is required in the finding of the appellate
court, it is to be borne in mind that a court exercising
revisional jurisdiction will interfere with orders or
judgments of the trial court or the appellate court only if
those orders and judgments are suffering from
incorrectness, illegality, or impropriety. Unless the
judgment passed by the learned magistrate or by the
appellate court is perverse or the view taken by the court
is unreasonable, or there is non-consideration of any
relevant material, or there is palpable misreading of
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records, the revisional court is not justified in interfering
with the judgment. The revisional court cannot act like an
appellate Court.
10. In State of Kerala v. Jathavedan
Namboodiri [AIR 1999 SC 981], the Hon’ble Supreme
Court held thus:
“In its revisional jurisdiction, the High Court
can call for and examine the record of any
proceedings for the purpose of satisfying
itself as to the correctness, legality or
propriety of any finding, sentence or order.
In other words, the jurisdiction is one of
Supervisory Jurisdiction exercised by the
High Court for correcting miscarriage of
justice. But the said revisional power cannot
be equated with the power of an Appellate
Court nor can it be treated even as a second
Appellate Jurisdiction. Ordinarily, therefore,
it would not be appropriate for the High
Court to reappreciate the evidence and
come to its own conclusion on the same
when the evidence has already been
appreciated by the Magistrate as well as the
Sessions Judge in appeal, unless any glaring
feature is brought to the notice of the High
Court which would otherwise tantamount to
gross miscarriage of justice.”
11. This is a case in which certain forest officials
were allegedly attacked inside a reserved forest. The
prosecution case is that, on the date of occurrence, the
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forest officials proceeded to the place of occurrence on the
basis of prior information received regarding the presence
of the accused in the forest. It is alleged that, on reaching
the spot, the officials found the accused sleeping in a
shed. On noticing the presence of the forest officials, the
accused allegedly woke up and attacked them.
12. To bring home the guilt of the accused, the
prosecution mainly relies upon the evidence of PW2, PW3,
PW7 and PW11, who are the injured forest officials. In
their examination before the court, they had given a vivid
account of the matters transacted in this case, and their
evidence is mutually corroborative of each other. Both the
trial court and the appellate court had already undertaken
a detailed appreciation of their evidence and arrived at
the conclusion that the testimony of PW2, PW3, PW7 and
PW11 is reliable and sufficient to sustain the conviction.
13. As already stated while considering whether
any interference is warranted with the finding of
conviction, it is to be noted that the revisional jurisdiction
of this Court is limited. A revisional court cannot ordinarily
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re-appreciate the evidence as if it were hearing an appeal.
However, where there is patent illegality, perversity, or
material irregularity in the appreciation of evidence, or
where relevant facts and circumstances have been
ignored, this Court is not precluded from exercising its
revisional jurisdiction.
14. In the present case, the main contention
taken by the learned counsel for the revision petitioners is
that the identification of the accused by the injured
witnesses is wholly unreliable. The identity of the offender
is the foundation of every criminal prosecution, and unless
the identity of the accused is established beyond
reasonable doubt, no conviction can be sustained.
15. Admittedly, the occurrence took place at
about 12.00 a.m. None of the prosecution witnesses has
stated that they had any prior acquaintance with the
accused. It is also an admitted fact that, except accused
Nos. 4 and 5, none of the accused were apprehended
from the scene of occurrence. The evidence of PW2, PW3,
PW7 and PW11, regarding the source of light that enabled
them to identify the assailants is also not satisfactory.
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Significantly, accused Nos. 4 and 5, who alone were
apprehended from the spot, have already been acquitted
by the appellate court. Thus, none of the present revision
petitioners, who are accused Nos. 1 to 3, was arrested
from the place of occurrence. Nevertheless, during trial,
the occurrence witnesses identified them before the court
in a general and omnibus manner. Such omnibus dock
identification has consistently been viewed with caution
by the Hon’ble Supreme Court.
16. In the facts of the present case, the witnesses
admittedly had no prior acquaintance with the accused,
and none of them were having any prior acquaintance
with the accused. Likewise, the incident occurred at
midnight. I am conscious of the settled legal position that
identification before the court is substantive evidence and
that, in an appropriate case, a conviction can be sustained
on such identification even in the absence of a test
identification parade. However, where the witnesses had
no prior familiarity with the accused, and the accused
were not apprehended from the scene of occurrence, the
failure to hold a test identification parade assumes
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considerable significance. In the peculiar facts and
circumstances of the present case, the omission to
conduct a test identification parade seriously affects the
credibility of the prosecution case. Moreover, the omnibus
identification of the accused made by the witnesses
before the court also cannot be acted upon.
17. In the above circumstances, I am of the
considered view that the prosecution has failed to
establish the identity of the accused beyond reasonable
doubt and, consequently, has failed to prove that they are
the actual perpetrators of the offence. The revision
petitioners are, therefore, entitled to the benefit of doubt.
18. Accordingly, these Criminal Revision Petitions
are allowed. The conviction and sentence passed against
the revision petitioners are set aside, and they are
acquitted. Their bail bonds, if any, executed by them shall
stand cancelled. Fine amount, if any, deposited shall be
refunded to them in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
Pvv
