IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 Crl.Rev.Pet.No. 1079 of 2011() ------------------------------------------- CRP.9/2010 OF ADDITIONAL SESSIONS COURT (ADHOC-I), MANJERI. CC.364/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PARAPPANANGADI .................... PETITIONERS/RESPONDENTS/ACCUSED 1 TO 3 --------------------------------------------------------------------- 1. SAIDALAVI, S/O.MOHAMMED, PATTATHARA VEEDU, PARIYAPURAM AMSOM, PANANGATOOR. 2. ABDULLA, S/O.MOHAMED, PATTATHARA VEEDU, PARIYAPURAM AMSOM, PANANGATOOR. 3. KUNHEETHU, S/O.MOHAMED, PATTATHARA VEEDU, PARIYAPURAM AMSOM, PANANGATOOR. BY ADV. SRI.P.V.SURENDRANATH RESPONDENTS/PETITIONER/PROSECUTION WITNESS NO.1 & RESPONDENT NO.4 ---------------------------------------------------------------------------------------------------------------------- 1. MOIDEENKUTTY, S/O.HAMZA HAJI, KOLAKUNNATH HOUSE, PARIYAPURAM AMSOM, PANANGATOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.SEENA R. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1079 OF 2011 ----------------------------------------- Dated this the 14th day of October 2011 ORDER Revision is by the accused in C.C No.364/2001 on the file of the Judicial First Class Magistrate - I, Parappanangadi. They were prosecuted for the offences under Sections 447, 323, 324 and 326 r/w Section 34 IPC on a report filed by the Sub Inspector of Police, Tirur. The learned Magistrate, after trial, acquitted them of the offences. The de facto complainant challenged the acquittal by way of revision before the Sessions Court, Manjeri. The learned Additional Sessions Judge (Ad hoc) I, Manjeri set aside the order of acquittal and remitted the case to the Magistrate for fresh trial and disposal. Propriety, legality and correctness of that order is challenged in the revision. 2. Though notice was ordered to the 1st respondent, the de facto complainant, after service, he has not entered appearance. 3. I heard the learned counsel for the petitioners/accused and also the learned Public Prosecutor. The learned Sessions Judge went wrong in interfering with the order of acquittal and remitting the case for fresh trial and disposal, is the submission of the counsel. Advertence made to case and counter case in paragraph 9 of the judgment rendered by the learned Sessions Judge as if the connected aspects involved in such cases weighed with the Magistrate to pass the order of acquittal in Crl.R.P No.1079 OF 2011 - 2 - favour of the accused, is patently erroneous and incorrect, is the submission of the counsel pointing out that in the judgment rendered by the Magistrate no reference to any counter case is made mention of. Fresh trial after remission would not yield any result as the edifice of the prosecution case has been shown to be unworthy of any merit and, further, the material witnesses cited by the prosecution are not even available for trial, is the submission of the counsel. Remission of the case in such circumstances is liable to be set aside, submits the counsel. 4. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, though I find that in directing fresh trial and remission the learned Sessions Judge had adverted to certain aspects which are not borne out by the materials, still, it is apparent that a proper and fair trial was not conducted by the Magistrate. CW2, one among the injured, after being examined partly, it is seen, was given up for the reason that during cross examination he did not give rational answers. It is seen that that witness has filed the revision before the Sessions Court to impeach the order of acquittal rendered in favour of the accused. That witness, who is aged 75 years, could not give rational answers is no ground to hold that his evidence has to be dispensed with. Whether he gave rational or irrational answers when he was examined before the court, the value of such answers so long as he has testamentory capacity to give evidence before the court Crl.R.P No.1079 OF 2011 - 3 - has to be evaluated by the Magistrate. The answers that were given by him during cross examination was not appealing to the court or did not appear to be rational, is not a ground to discard his evidence. The judgment of the Magistrate does not reflect that PW1 lacked any testamentory capacity to give evidence. The fact that he is aged is no ground to hold that he is incapable of giving evidence before the court. Similarly, it is also noticed, the doctor who was cited could not be examined to prove the wound certificate of the injured as he was stated to be abroad. If the doctor was not available, the prosecution is expected to examine any of his associates who is capable of identifying the signature of the doctor who issued that certificate. What is relevant is bringing forth in evidence the recordings made in the certificate as to the injuries sustained, for which even if the doctor who prepared the wound certificate is not available, on proof of that it had been issued by a competent doctor, through any competent person who is capable of identifying the signature of that doctor and also to speak on the injuries noted, the evidentory value of such certificate has to be evaluated. Further more, it is also noticed, the Magistrate has expressed some opinion over the evidence of one of the witnesses, testing his testimony with reference to the evidence of other witnesses, as self contradictory. The Magistrate has stated that on scrutiny of the testimony of PW2 and PW5, the testimony of PW2 is self contradictory. Sworn testimony of a Crl.R.P No.1079 OF 2011 - 4 - witness not liable to be contradicted with reference to the testimony of another witness. May be the prosecution case can be tested with reference to the testimonies of the various witnesses examined but to doubt a witness and hold that his evidence is self contradictory with reference to the testimony of some other witness is patently erroneous. When such be the position, I find no impropriety in the order of the learned Sessions Judge, though he has adverted to some factual mistakes in his judgment, for reversing the order of acquittal and remitting the case for fresh trial and disposal. There is no scope for interfering with that order of acquittal in exercise of revisional jurisdiction by this court. 5. Revision petitioners/accused are directed to appear before the Magistrate on 21-11-2011. The Magistrate shall take back the file, take note of the observations made above and dispose the case afresh in accordance with law. If any application is moved by the prosecuting agency for recalling any witness for examination or further examination, the Magistrate shall pass appropriate orders taking note that evidence is not to be shut down, but, opportunity has to be extended to both sides to secure fair play to advance the ends of justice. Revision is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge