IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 Crl.Rev.Pet.No. 2370 of 2008() ------------------------------ CRRP.183/2004 of II ADDL. SESSIONS COURT, PALAKKAD CC.1213/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER: ------------------------------ 1. CHANDRAN , S/O.VELAYUDHAN, 43 YEARS KARINJAMTHODU VEEDU, CHIMBUKADU KUTHANUR , ALATHUR TALUK, PALAKKAD 2. VELAYUDHAN, S/O.PAZHANIYANDI 67 YEARS DO.DO. 3. JYOTHISH, S/O.KUMARAN, 27 YEARS DO.DO. 4. VASU, S/O.NAKU, 55 YEARS, DO.DO. 5. SUDEVAN, S/O.AYYAVU, 34 YEARS DO.DO. 6. SIVAN, S/O.AYYAVU, 32 YEARS DO.DO. 7. RADHAKRISHNAN, S/O.MAYANDI, AGED 38 YEARS, DO.DO. BY ADV. SRI.RAJESH SIVARAMANKUTTY 2 RESPONDENTS: ---------------------------- 1. AYSHAMARIYAN, W/O.BADAR RAWTHER 70 YEARS, PUNJARLI HOUSE, CHIMBUKAVU PO., KUTHANUR, ALATHUR TALUK, PALAKKAD 2. K.ABOOBACKER, S/O.KADARSHA RAWTHER 75 YEARS, PUNJARLI HOUSE DO.CO. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.2370 of 2008 = = = = = = = = = = = = = = Dated this the 23 rd day of July, 2008 ORDER Petitioners who are accused Nos.1 to 7 in C.C.No.1213 of 2001 on the file of the J.F.C.M-III, Palakkad challenge the order of remand passed by the IInd Additional Sessions Judge, Palakkad in Crl.R.P.No.183 of 2004. 2. The 7 accused persons were charge sheeted by the Assistant Sub Inspector of Police, Kuzhalmannam Police Station for offences punishable under Sections 143,147,148,506(ii) and 427 read with 149 IPC. 3. The case of the prosecution can be summarised as follows:- On 18.3.2000 at 5.30 p.m. at Punnarkulam, the 7 accused persons found themselves into an unlawful assembly, the common object of which was to cause damage to CW1 (Ayshamariyam) and in prosecution of the common object of the said assembly they comiited rioting armed with deadly weapons like chopper etc. and destroyed the fence situated on the Crl.R.P.No. 2370 of 2008 2 boundary of the pond and when CW1 attempted to avert the aggression the accused threatened to kill her and destroyed the fence and also caused destruction to the diesel motor and electric motor in the motor shed and threw the diesel motor into the pond causing a loss of Rs.50,000/- 4. The prosecution altogether examined 8 witnesses as PWs1 to 8 and got marked 4 documents as Exts.P1 to P4 and two material objects as MOs.1and 2. 5. The learned Magistrate after trial, as per judgment dated 19.10.04, acquitted all the accused persons of the offences. The de facto complainant Ayshamariyam and her brother (who was examined as PW1), challenged the order of acquittal by filing Crl.R.P.No.183 of 2004 before the Sessions Court, Palakkad. That court as per impugned order dated 5.6.08 set aside the order of acquittal passed by the trial court and remanded the case to the trial court for disposal afresh after examining CW1 and other witnesses who were not examined earlier. It is the said remand order which is assailed in this revision by the accused. 6. The learned counsel appearing for the revision Crl.R.P.No. 2370 of 2008 3 petitioner vehemently assailed the revisional order passed by the lower appellate court contending inter alia that when PW1 who is a co-owner along with CW1 has already been examined, the non examination of CW1 was not at all fatal to the prosecution and the request for examining CW1 was only to fill up the lacuna to the prosecution evidence. 7. I am not persuaded by the said contention. CW1 Ayshamariyam was admittedly the person who moved the Superintendent of Police, Palakkad subsequent to the local Police namely the Kuzhulmannam Police refusing to take action on the complaint allegedly made by herself and her brother (PW1). It was pursuant to her complaint before the Superintendent of Police that the same was forwarded to the Deputy Superintendent of Police and then to the Sub Inspector of Police, Kuzhalmannam resulting in the Kuzhalmannam Police registering Ext.P3 FIR. When the case was initially listed for trial before the learned Magistrate , CW1 was present before the court and the trial of the case was adjourned to suit the convenience of the Public Prosecutor. Thereafter CW1 was not present and the learned Magistrate issued bailable warrant of Crl.R.P.No. 2370 of 2008 4 arrest to secure her presence and she was present on the subsequent day but was not examined for reasons not revealed. She was the prime prosecution witness who ought to have been examined and whose first information statement ought to have been marked as an Exihibit. She was the person who was complaining of destruction to the fence as well as to the diesel motor etc. Hence the lower appellate court was fully justified in commenting upon the procedure adopted by the trial court by not examining CW1 in spite of securing her presence before the court. I, therefore, do not find any illegality in the remand order passed by the Sessions Court. The trial court shall examine CW1 and proceed to dispose of the case by examining the other witnesses who were omitted to be examined earlier, provided, the Prosecutor in charge of the case makes a request in that behalf and the trial Magistrate is also of the view that those witnesses have to be examined in the case. I am not making any observations on the merits of the case. The petitioner shall appear before the trial court without any further notice on the next posting date. It is made clear that there shall be no de novo trial and the trial shall be continued by examining CW1 and Crl.R.P.No. 2370 of 2008 5 such of those witnesses, if any, who were not examined earlier, in case their examination is found necessary. Considering the fact that this is a relatively old case, the learned Magistrate shall give top priority for its disposal. Dated this the 23 rd day of July, 2008. V. RAMKUMAR, JUDGE sj