IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 1212 of 2008(T) ------------------------------- CC.894/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... REVN. PETITIONER/DE FACTO COMPLAINANT:- ---------------------------------------------------- T.G.VILASINI,AGED 52 YEARS, D/O. DAMODARAN, MADATHIL PARAMBIL, MADAPPADU KARAYIL, KUROPPADA VILLAGE, KOTTAYAM BY ADV. MR. R.REJI MR. B.BIPIN RESPONDENTS/STATE AND ACCUSED:- -------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM REPRESENTING S.I. OF POLICE PAMBADY POLICE STATION. 2. RAJAN,S/O. THANKACHAN PULICKAL VEEDU, KUROPPADA VILLAGE,KOTTAYAM 3. SANOJ, P. RAJAN,S/O.RAJAN PULICKAL VEEDU, KUROPPADA VILLAGE,KOTTAYAM 4. MOHANAN,S/O. VIIDHAYADHARAN, EIRUPPAKKUZHIYIL VEEDU, ANIKADU VILLAGE, KOTTAYAM. ADV. MR. LIJI.J.VADAKEDOM FOR R2,R3 & R4 MR. JAYAKRISHNAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1212 OF 2009 ---------------------------------------- Dated this the 17th day of June, 2009 ORDER On the information given by petitioner, Pampady police registered a case against respondents 2 to 4 as Crime No.150/06 and after investigation a final report was filed alleging that respondents 2 to 4 committed offences punishable under Section 323, 324 read with Section 34 of the Indian Penal Code (for short, “the Code”). Learned magistrate took the case on file as C.C.No.894/2006. Charge was framed against respondents 2 to 4 for the offences stated above. They pleaded not guilty. Summons/warrants were issued against petitioner/defacto complainant who figured as CW1 in the police charge. She was not available. Other witnesses to the incident also could not be traced. Hence as per impugned order dated 28.2.2008, respondents 2 to 3 were acquitted under Section 248 of the Code of Criminal Procedure for want of evidence to prove charge. That order is sought to be revised in this revision. Learned Crl.R.P.NO.1212/08 2 counsel contends that there was no failure on the petitioner to appear in court. According to counsel for respondent Nos. 2 to 4, sufficient opportunity was given to the prosecution to produce witnesses but they failed. 2. I have gone through the records. It is seen from the memo of evidence produced by prosecution that apart from petitioner, CWs 2 to 4 were also cited to prove the alleged incident. CW6 is the Medical Officer who is stated to have examined the petitioner and issued wound certificate. CWs 7 and 8 are police officials who registered case and conducted investigation. It is seen from the copy of order sheet of the court below that charge was framed against respondents 2 to 4 on 20.9.2007 and on 22.10.2007 summons was ordered to the petitioner. On 22.11.2007, though summons was served on petitioner, she remained absent and hence a non-bailable warrant was ordered. On 14.12.2007 there was a request to exempt petitioner from appearance. That request was rejected and again non-bailable warrant was ordered. Similar order was passed on 10.1.2007. Summons was ordered to CWs 2 to 4 also. But petitioner as well as Cws 2 to 4 were absent on 23.1.2008 and 14.2.2008. On 27.2.2008 learned magistrate Crl.R.P.NO.1212/08 3 dispensed with the witnesses and on 28.2.2008 pronounced judgment acquitting respondents 2 to 4. 3. On going through the reports submitted by the police it is seen that warrants issued to the petitioner and CWs 2 to 4 could not be executed. I am told that a counter case involving petitioner is pending in the trial court for disposal. I do not forget that learned magistrate had taken coercive steps to procure the summons prosecution witnesses. Learned counsel submits that petitioner is prepared to appear in court if an opportunity is given. She is also prepared to produce CWs 2 to 4 in the court below. Considering the nature of offence allegedly committed and all other relevant facts and circumstances, I am inclined to give petitioner an opportunity to present herself and produce the witnesses in the trial court. I also make it clear that it will be within the power of learned magistrate to take appropriate coercive steps against such of the witnesses who absent themselves in the court. In the above circumstances, judgment under challenge is liable to be set aside. Resultantly, this revision is allowed. Judgment under challenge is set aside and the case is remanded to the court Crl.R.P.NO.1212/08 4 below for disposal in the light of the observation made above. Respondents 2 to 4 and petitioner shall appear in the court below on 18.7.2009. THOMAS P. JOSEPH, JUDGE Acd