IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 Crl.Rev.Pet.No. 3830 of 2009() ------------------------------ CC.321/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... REVN. PETITIONER(S): REVISION PETITIONER/DEFACTO COMPLAINANT --------------------------------------------------------------------------------------------------------------------- ABDUL LATHEEF, AGED 39 YEARS, S/O. ALIYAR KUNJU, RESIDING AT MULLESSERY HOUSE, CLAPPANA VILLAGE, VARAVILA P.O., KARUNAGAPPALLY. BY ADV. SRI.SANTHOSH G. PRABHU SRI.S.KANNAN RESPONDENT(S): ACCUSED AND COMPLAINANT ------------------------------------------------------------------------------- 1. MANSOOR, AGED 38 YEARS, S/O.MOHAMMAD KUNJU, NILAKKAL THEKKATHIL, VARAVILA MURI, CLAPPANA, KARUNAGAPPALLY. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.3830 of 2009 = = = = = = = = = = = = = = Dated this the 21 st day of January, 2010 ORDER The revision petitioner, who is the de-facto complainant in Crime No.33 of 2004 of Oachira Police Station for offences punishable under Sections 341 and 324 IPC against one Mansoor, was charge witness No.1 and was to be examined as the main witness for the prosecution. The case was pending before the J.F.C.M, Karunagappally as C.C.No.321 of 2004. There is a counter case pending before the same court as C.C.No.320 of 2004 in which the petitioner herein is the 1st accused. Both the cases are being tried by the same court. According to the petitioner, he did not receive any summons in C.C.No.321 of 2004 and therefore he had no opportunity to give evidence on behalf of the prosecution in that case. He would contend that he is the victim of the offences committed in this case. Among the prosecution witnesses, CW4 alone is stated to have Crl.R.P. No.3830 of 2009 2 responded to the summons and he was examined as PW1. Since CW1,2 & 3 did not respond to the summons and warrants issued by the court, the learned Magistrate, noticing that CW4 who was the only prosecution witness examined turned hostile to the prosecution, acquitted the accused under Section 248(1)Cr.P.C. 2. No appeal has been preferred by the State against the acquittal. Hence, this revision by the de-facato complainant who was charge witness No.1. 3. In as much as the de-facto complainant has come forward to vindicate his grievance and since he is the 1st accused in the counter case registered as C.C.No.320 of 2004 pending before the same court, I am inclined to accede to the request of the petitioner to afford him an opportunity to give evidence in C.C.No.321 of 2004. 4. The 1st respondent herein, who is the accused in the case has not chosen to enter appearance. Since C.C.No.321 of 2004 and 320 of 2004 are the case and counter case Crl.R.P. No.3830 of 2009 3 arising out of the same occurrence and also since justice should not suffer due to the non-examination of the victim, I am inclined to set aside the conviction entered and the sentence passed and give the petitioner an opportunity to adduce evidence on behalf of the prosecution. Accordingly, the judgment dated 28.4.2008 in C.C.No.321 of 2004 on the file of the J.F.C.M, Karunagappally stands set aside and the case is remitted to the trial court for fresh disposal, after examining the revision petitioner also as a witness for the prosecution. C.C.No.321 of 2004 shall stand restored to file and shall be disposed of in accordance with law. The petitioner shall appear before the court below on 15.2.2010 without any further notice. The stay granted in C.C.No.320 of 2004 shall stand vacated and both the cases shall be disposed of by the court below in accordance with the principles governing case and counter case. Dated this the 21 st day of January, 2010. V. RAMKUMAR, JUDGE sj Crl.R.P. No.3830 of 2009 4 “The 1st respondent herein, who is the accused in the case has not chosen to enter appearance” occurring as the first sentence in paragraph 4 of the final order dated 21.01.2010 is deleted as per order dated 28.01.2010 in Crl.M.A.No.948/2010 in Crl.R.P.No.3830 of 2009