IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 Crl.Rev.Pet.No. 929 of 2008() ----------------------------- AGAINST THE ORDER DATED 14/02/2008 IN CMP.488/2008 IN CC.76/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER: RESPONDENTS/ACCUSED 1. MUTHU @ MUSTHAFA, AGED 24 YEARS S/O.KUNJHA AHAMMED, VELLORVALAPPIL VEEDU ARAVAKKAD, POST KAPPUR. 2. GOKULAKRISHNAN, AGED 29 YEARS S/O.APPU, KUMBALATHU VEEDU, ARAVAKKAD, POST KAPPUR 3. KOYA, AGED 40 YEARS, S/O.CHEKKUTTY KOLAYIL VEEDU, KUMARANELLUR POST, KAPPUR. 4. SIDHIQUE, AGED 30 YEARS, S/O.MOIDUNNI MAVARA VEEDU, POST KAPPUR. 5. PONNUTHAN @ VIJAYAN, AGED 40 YEARS S/O.SANKARAN, POTTANPULAKKIL VEEDU KUMARANELLUR, POST KAPPUR. 6. MANI @ UNNIYANKUTTY, AGED 50 YEARS S/O.HYDREW, KANNAMPURATHU VEEDU KUMARANELLUR, POST KAPPUR. 7. HYDERALI, AGED 31 YEARS, S/O.MOIDU KURUTHOLAVALAPPIL VEEDU, KAPPUR. 8. CHANDRAN, AGED 42 YEARS, S/O.CHANGU MAMBATTA VEEDU, KUMARANELLUR, POST KAPPUR 9. SUNDARAN, AGED 30 YEARS, S/O.CHAKKAN VARIYATHUPADI VEEDU, KUMARANELLUR, POST KAPPUR. 10. RADHAKRISHNAN, AGED 42 YEARS S/O.KUNHUNNI, ALIKKUNNATHU VEEDU KUMARANELLUR, POST KAPPUR. BY ADV. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI CRL.R.P. NO. 929/2008 : 2 : RESPONDENTS: PETITIONER/COMPLAINANT STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, THRUTHALA THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. M.S. BREEZE, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 929 of 2008 ========================== Dated this the 26th day of March, 2008. ORDER The petitioners, who are the accused in C.C. No. 76 of 2005 on the file of the Judicial First Class Magistrate, Pattambi for offences punishable under Sections 143, 147, 148, 341, 323, 324, 427 and 188 r/w Section 149 IPC, seek to set aside Annexure A3 order dated 14.02.2008 passed by the Magistrate allowing the request of the APP to examine CW3, the injured eye witness, who was earlier given up as he was abroad and hence not available them. 2. Assailing the impugned order, the learned counsel appearing for the revision petitioner/accused made the following following submissions before me:- There are altogether 13 witnesses cited on the side of the prosecution. Out of them, some of the witnesses were examined. CW3 was reported to be employed in Gulf country and the case was posted for his examination several times and finally at the request of the prosecution his examination was dispensed with on CRL.R.P. NO. 929/2008 : 2: 12.07.2007. After a lapse of 7 months, the APP in charge of the case filed Annexure A1 application on 08.02.2008 for recalling CW3 stating that he was now available. The said application though opposed vehemently by the revision petitioner, was allowed as per Annexure A3 order dated 14.02.2008 by invoking the power under Section 311 Cr.P.C and it amounts to filling up of the lacuna in the prosecution evidence. 3. I am afraid that I cannot agree with the above submissions. CW3 is the injured eye witness in the case and he is the de facto complainant as well. His examination during trial could not be had as he was employed in the Gulf. It is true that all the remaining prosecution witnesses have been examined and the request by the APP for examining CW3 was made after 7 months. But then, it was at a time when CW3 is available in Kerala that the application was filed. It is well settled that a witness given up by the prosecution can be examined at a later stage of the trial. CW3, being the injured eye witness and the de facto complainant, is a necessary witness for the prosecution and the court below by granting the prayer of the prosecution under CRL.R.P. NO. 929/2008 : 3: Section 311 Cr.P.C to examine CW3, has not committed any illegality or irregularity. The petitioners will have an effective opportunity of cross examining CW3 and can attempt to discredit him. In case after the examination of CW3 it has become necessary to summon any of the prosecution witnesses already examined for the purpose of further cross examination, I am sure that the learned Magistrate will allow the said request, if any, made by the accused on being satisfied that the said request is just and necessary. With this observation, this Crl.R.P is dismissed. V. RAMKUMAR, JUDGE. rv CRL.R.P. NO. 929/2008 : 4: