Chandran v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938** **Crl.Rev.Pet.No. 1930 of 2009 ( )** **--------------------------------AGAINST THE ORDER IN CC 574/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR DATED 30-06-2008** ## **REVISION PETITIONER/DEFACTO COMPLAINANT:** **---------------------------------------** **CHANDRAN, S/O.CHELLAPPAN, AGED 46 YEARS, MODAMPARAMBU, ERAMAYOOR, ALATHUR TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.JOHNSON P.JOHN SRI.BABY MATHEW** **RESPONDENTS/ACCUSED & STATE:** - **----------------------------** **1. KUITTAN @ APPU, S/O.VELAYUDHAN, AGED 26 YEARS, MODAMPARAMBU, ERIMAYOOR, ALATHUR, PALAKKAD.** **2. BABU, S/O.VELAYUDHAN, AGED 30 YEARS, DO. DO.** **3. MANIKANDAN, S/O.VELAYUDHAN, AGED 28 YEARS, DO. DO.** **4. AMMU, W/O.VELAYUDHAN, AGED 49 YEARS, DO. DO.** **5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEKRALA, ERNAKULAM.** **R, BY PUBLIC PROSECUTOR SRI.K.A.ANAS R,R3 BY ADV. SRI.NIREESH MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.ABRAHAM MATHEW,J ---------------------------------------------Crl. R.P.No.1930 of 2009 ----------------------------------------Dated this the 7[th] day of September, 2016** ## **ORDER** The revision petitioner who set the criminal law in motion alleging that he was severely battered by respondents 1 to 4 because he thwarted the attempt of the third respondent to manufacture illicit liquor now complains of denial of justice at the final stage of the litigation in as much as the unmethodical approach and indifferent attitude of, and noncompliance with statutory provisions by the police, the prosecutor and the trial court have given respondents 1 to 4 an unmeritted acquittal. 2. On 23.1.2004 the revision petitioner, his father in-law and brother in law sustained injuries when they were allegedly attacked with metal pipe and wooden reapers by respondents 1 to 4 who did not like the revision petitioner's destroying the wash the third respondent had kept for manufacturing illicit liquor. He lost the sight of his left eye. His father in-law and brother in-law also sustained some injuries. 3. Respondents 1 to 4 were charged with having committed the offences under Sections 324 and 326 IPC. The prosecution examined seven witnesses as PW1 to PW7 and got marked five documents as Exts ## **Crl. R.P.No.1930 of 2009 2** P1 to P5 and two material objects as MO1 and MO2. PW1 and PW2, father in-law and brother in-law respectively of the revision petitioner, though admitted having sustained injuries, did not depose to the involvement of respondents 1 to 4 in the incident. The revision petitioner, who was examined as PW3, gave evidence in support of the prosecution case. Still the learned Magistrate found respondents 1 to 4 not guilty of the offences mainly for the reason that the doctors who examined and treated the injured were not examined as witnesses at the trial. The order of acquittal is challenged in this revision petition. 4. Learned counsel for respondents 1 to 4 has brought to my notice the decisions of the Supreme Court in _**Bindeshwari Prasad Singh v. State of Bihar (2002 (6) SCC 650)**_ and _**Shlok Bhardwaj v. Runika Bhardwaj (2015 (2) SCC 721).**_ In the first decision it is held that in the absence of any legal infirmity either in the procedure or in the conduct of the trial there is no justification for the High Court to interfere in the order acquittal in exercise of its revisional jurisdiction. The court observed that the judgment of the trial court was not perverse and there was no procedural irregularity in the trial and there was no improper admission or rejection of evidence. In the second case the apex court ## **Crl. R.P.No.1930 of 2009 3** held that the High Court in exercise of its revisional jurisdiction can interfere with acquittal only if there is perversity in the order of acquittal. The revision petitioner challenges the order of acquittal on the specific allegation of illegality in the procedure adopted by the trial court, which I shall examine presently. 5. The revision petitioner was first taken to District Hospital, Palakkad, where he was treated by Dr.Arunraj (CW7), who referred him to Medical College Hospital, Thrissur. Statements of these two doctors were recorded by the police. The prosecution produced the wound certificate issued by Dr.Arunraj and the discharge certificate issued by Dr.Sadasivan (CW8) of that hospital. 6. At the Medical College Hospital, Thrissur PW3 was treated by Dr (Prof) Radhadevi (CW9) who was a professor in Opthalmology. In her statement given under Section 161 Cr.P.C she told the police that PW3 was still under her treatment and the certificate relating him would be issued later. But the investigating officer did not collect it from her before or after the final report was filed. The discharge certificate relating to PW3 was issued by Dr Shamla (CW10) of the Medical College Hospital. It was produced along with the final report. ## **Crl. R.P.No.1930 of 2009 4** 7. No one of the doctors was examined as a witness, nor the documents relating to the treatment of the injured were marked. 8. The entries in the proceedings sheet of the trial court which are given below disclose the reason. - 19.1.07: Accused present. CW1 to 4 present. Connected case on 23.7.07. CW1 to 4 bound over to 23.2.07. - 23.2.07: Accused present. CW1 to 4 present. Examined as PW1 to 4,P1 marked. M.O 1 and 2 identified. Issue summons to CW5 to 11 to 27.2.07. - 27.2.07: Accused present. CW9 present. No certificate issued by the witness is seen amounts case records. Hence CW9 is discharged as learned APP does not intend to examine the witness, CWs 5 to 8,10 &11 absent. Issue bailable warrant to CW 5,6, repeat summons to CW's 7 to 8 and 11 to 4.5.07. - 4.5.07: No sitting notified to 8.6.07 - 8.6.07: Accused present. CW5 to 8,10 and 11 absent, Repeat bailable warrant to CW5 to 9 and 10 & 11 to 5.7.07. - 5.7.07: No sitting notified to 30.8.07 - 30.8.07: A1 to 4 present. CW5 to 9,10,11 absent. Repeat bailable warrant of CW 7, 8 and 10. Repeat summons to CW7,8, and 11 and bailable warrant against CW5,6, 9 and 11 to 19.10.07. - 19.10.07: A1 to 4 present. CW5 to 11 absent. Repeat bailable ## **Crl. R.P.No.1930 of 2009 5** warrant to CW5 to 11 to 10.12.07 - 10.12.07: A1 and 2 absent, applied, allowed. Represented by counsel. A3 and 4 present. CW11 present. Examined as PW5. P2 marked. CW5 to 10 absent. Repeat bailable warrant against CW5 to 10 through Dy.S.P Alathur and summons to CW12 to 14 to 4.2.08. - 4.2.08: All accused present. CW5 to 10,12 to 14 absent, bailable warrant of CW5 to 10 unexecuted. No report. Hence dispensed with. Repeat summons to CW12 to 14 to 7.3.08. 9. In _**State v. Aboobaker (1960 KLT 1142)**_ a division bench of this court has observed: “............it is the duty of the court in the interest of justice to summon such of the witnesses whose evidence is necessary for a just decision” and “even if the police fail to perform their duties and produce the witnesses, the court has duty to enquire into the offences disclosed and to find out whether the accused was really guilty or not and for that purpose to examine the witness.” The duty of a Magistrate trying an accused has been emphasised by this court again in _**Sadasivan v. Rajagopalan (1970 KLT 399)**_ and in _**State of Kerala v. Abdulla (1984 KHC 248).**_ In Abdulla's case his lordship Justice U.L.Bhat has observed: ## **Crl. R.P.No.1930 of 2009 6** “The helping hand of the court extended to the prosecution as well as the defence is to ensure fair trial and fair consideration of the prosecution case as well as the defence pleas. In this regard there could be no practical difference between a warrant case and a summons case. This is not to say that in each and every case and irrespective of the attitude of the police and the stand taken by the prosecution, the Magistrate must take coercive steps. It is for the Magistrate to bestow his attention on the facts of each case coming up before him for consideration and issue fresh summons or see whether coercive steps may be taken or not and in appropriate cases pursue the matter under S.87 of the Code. It would be improper for the Magistrate to take advantage of the inefficiency or recalcitrance of the police officers entrusted with the duty of serving summons, the lethargy of the prosecution or the reluctance of the witnesses to attend court and to cut short the trial and proceed to acquit the accused, irrespective of the facts and the requirements of justice in the case.” 10. When a court realises that evidence of a person who has not been cited or examined as a witness is necessary, or that a document ## **Crl. R.P.No.1930 of 2009 7** has not been produced though it is essential for the just decision of the case it should invoke Section 311 Cr.P.C to summon the witness or to order production of the document. When neither the police, nor the prosecutor discharges his duty to summon a person whose evidence is material or to produce a document which is a material evidence in the case, the court should not sit back with its hands folded and eyes shut. It should be conscious of the fact that it has a dynamic role to play in the trial of a criminal case. 11. When a witness whose evidence is necessary to prove the prosecution case is given up by the prosecution without justifiable reason, the court should summon him and examine him as a court witness. 12. CW9 Dr.Radhadevi who treated PW3 was present in court, but was not examined because the prosecutor felt that in the absence of a certificate issued by her, her examination would not serve any purpose. So he gave up the witness. This is an unpardonable mistake on the part of the prosecutor. The investigating officer should have obtained from the doctor or the hospital the records relating to the treatment of PW3. The prosecutor who knew about non production of ## **Crl. R.P.No.1930 of 2009 8** the records at least when the witness(CW9) appeared in the court should have requested the court to direct her to appear on the next posting date with the records for the treatment of PW3. Thereafter, he should have examined her as a witness. When he failed to do so the court should have invoked the power under Section 311 Cr.P.C to order production of the records and thereafter to examine the doctor (CW9) as a witness. 13. The proceedings sheet of the trial court does not show whether summons issued to CW7, CW8 and CW10 was served on them or not. Even without recording that summons was served on the witnesses, he ordered issuance of bailable warrant against them (Asst Public Prosecutor gave up CW9 who was present in the court on one occasion and she was apparently discharged by the Magistrate. Still he ordered issuance of bailable warrant against her also). 14. On the date on which the witnesses were asked to appear there was no sitting. Posting of the case was adjourned by notification. No arrangement had been made to bind over the witness. Still the learned Magistrate ordered issuance of arrest warrant against them. Finally he dispensed with the examination of those witnesses merely ## **Crl. R.P.No.1930 of 2009 9** because the police did not execute the arrest warrant. 15. When a case which is posted for appearance of a witness is adjourned by notification because of the absence of the Magistrate, fresh summons shall be issued to him. Without issuing fresh summons it is illegal to take coercive steps against him. No arrest warrant shall be issued against a witness unless the court is satisfied that summons was served on him sufficiently early. If it appears to the court that though summons was served on him he did not get sufficient time for his appearance, it shall repeat summons to him. It is needless to say that whether a witness got sufficient time to appear before the court after service of summons is a question of fact. If the Station House Officer fails to serve the summons or executes the arrest warrant, the court shall proceed against him. The court has no authority to dispense with the examination of a material witness only on the ground that the Station House Officer failed to produce him. 16. The failure of the police, the prosecutor and the learned Magistrate to discharge their duties and functions in accordance with law has resulted in failure of justice. The order of acquittal of respondents 1 to 4 is illegal and it is liable to be set aside. The learned Magistrate shall ## **Crl. R.P.No.1930 of 2009 10** try the case again. He should take effective steps to secure the attendance of the doctors who have not been examined. CW8 and CW10, who only issued discharge certificates need not be summoned as they can only prove issuance of those documents. If CW7 and CW9 are not available, the court shall consider whether the documents relating to the treatment of the injured may be made part of the evidence under the relevant provisions of the Indian Evidence Act including Section 32 of the Act. Before the witnesses are summoned the court shall ensure production of the documents referred to above. It is made clear that the witnesses already examined need not be recalled unless their evidence is necessary otherwise. In the result, this revision petition is allowed. The order of acquittal of the respondents 1 to 4 is set aside. The matter is sent back to the trial court for retrial. It shall comply with the directions given above. Respondents 1 to 4 are directed to appear in the trial court on 19.10.2016. ## **K.ABRAHAM MATHEW JUDGE** pm