Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 CRL.REV.PET NO. 3575 OF 2006 REVISION PETITIONER/ DEFACTO COMPLAINANT : K.V.JOOJU, KUNDOLY HOUSE, ANYERI P.O., THRISSUR - 6. BY ADV SRI.P.V.CHANDRA MOHAN RESPONDENTS/ COMPLAINANT/ ACCUSED : 1 STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE,, THRISSUR EAST, THRISSUR. 2 K.D.SHAJU, S/O. DEVASSY, PC 4202, POLICE CONSTABLE, TOWN SOUTH POLICE STATION, PALAKKAD. BY ADV SRI.C.A.CHACKO BY SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON 29.03.2023 DELIVERED THE FOLLOWING:
BECHU KURIAN THOMAS, J.
-------------------------------- Crl.R.P.No.3575 of 2006 --------------------------------- Dated this the 29th day of March, 2023
ORDER
Revision petitioner was the defacto complainant in C.C.No.815/2004 on the files of the Judicial First Class Magistrate's Court-I, Thrissur. He is aggrieved by the acquittal of the accused and has preferred this revision petition.
2. Prosecution alleged that on 20.03.2004, while the defacto
complainant was driving his Maruti car bearing Registration No.KL-8/W 2789, the accused who was a Police Constable, wrongfully restrained the car and after breaking the front glass of the vehicle slapped on the cheek of the defacto complainant.
3. In order to prove the prosecution case, PW1 to PW3 were examined and in the absence of any incriminating evidence against the accused, Section 313 of the Code of Criminal Procedure, 1973 was dispensed with.
4. The learned Magistrate after noticing that the defacto complainant had not turned up for giving evidence, despite non-bailable warrant having been issued against him, finally dispensed with his
evidence. PW1 to PW3 were cited as the occurrence witnesses who deposed that they had not seen the incident. It was also stated by them that they had not given any statement before the police and therefore those witnesses were declared as hostile. Noticing that there was no evidence to connect the accused with the crime, the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
5. The learned counsel for the revision petitioner contended that
there was a counter case which was not brought to the notice of the court and hence the very trial in the present case itself is vitiated. According to the counsel, Crime No.222/2004 of the Thrissur East Police Station was registered for the offence committed on 20.03.2004 for which C.C.No.790/2004 was filed. The present crime is 223/2004 of the same police station and that both being case and counter case, they should have been tried simultaneously for the purpose of a proper appreciation.
6. It is true that in the decision in State of M.P. v. Mishrilal
(Dead) and Others [(2003) 9 SCC 426], the procedure to be adopted in instances where there is a case and counter case has been delineated and it requires that the cross cases should be tried together by the same court one after the other so as to avoid conflicting judgments over the same incident.
7. Though the aforesaid principle is required to be followed, it is
noticed that in the instant case, despite summons and even non-bailable warrants issued, petitioner never turned up to give evidence. It was not brought to the notice of the court by the petitioner himself even after giving an opportunity that there was case and a counter case. The court could have followed the procedure required for cross cases only if it was
brought to its notice. Petitioner purposely refrained himself from appearing before the court and in such circumstances, it is not open to him to contend, that too at this point of time, that the case should have been tried as cross case along with C.C.No.790/2004.
8. In this context, it is necessary to refer to the order of this Court
dated 10.07.2018. When the case came up for consideration earlier. Petitioner contended that he was not served with summons and that the accused being a Police Constable, he had made some manipulations during the trial of the case. The learned Single Judge of this Court had, after perusing the case records, noticed the applications filed by the petitioner after receiving summons as a witness. On comparison of the signatures, the learned Single Judge even expressed a view that the signatures are similar. Despite the above opinion, it was suggested that if the petitioner had a case that the signature was forged, he must take necessary steps to subject the signatures to a scientific comparison. However, till date, no such steps have been initiated, which itself indicate that the summons had been served on him to appear as a witness. During the course of arguments before me also, the learned counsel for the petitioner submitted that the petitioner was in fact served with the summons.
9. In view of the above, the petitioner having failed to appear
before the trial court to give evidence despite an opportunity having been granted, it is not available in the teeth of law for him to contend at this belated stage that the judgment is required to be interfered with. In the nature of the evidence adduced before the trial court, I find that the acquittal of the accused is justified and no grounds are made out to interfere with the said finding of acquittal.
I find no merit in this revision petition and the same is dismissed. Sd/- BECHU KURIAN THOMAS, JUDGE RKM