M.J. Kumar vs Sahadevan and Others

Karpagavinayagam, J.—This Revision has been filed by the Petitioner-P.W.2 against the acquittal of the accused by the learned Judicial Magistrate, Ootacamund, dated 12.4.1993 in CC No. 28/90.

The Petitioner is P.W.2 who is the first informant and one of the injured in this case. The Respondents 1 to 3 are the accused. 4th Respondent is the Police who filed the charge sheet in this case on the complaint given by P.W.1.

The case of the prosecution is as follows: P.W.1 Shankar is a grocery shop merchant. Accused-1 Shankar purchased some provisional articles from the grocery shop to the tune of Rs. 200/-. Since the accused did not pay the dues of Rs. 200/-, P.W.1, on the date of occurrence i.e., on 23.12.1989 at 7:30 P.M., when accused-1 along with Accused-2 and his son Accused-3 coming near the house of P.W.1, demanded the amount and that immediately on demand, Accused-1 chased P.W.1 and hit him on the head with a knife but P.W.1 warded off the said attack with the result he sustained an injury on the right hand fingers and Accused-3 also with the ''Thadi'' caused injuries on him and A2 with ''Thadi'' caused injuries on the right elbow.

Then a complaint was lodged by P.W.1 at the police station and the 4th Respondent who in turn registered the case in Crime No. 374/89 of E1 police station, Ooty, for the offences under Sections 326, 323 and 325 I.P.C. On thorough investigation, the Sub-Inspector of Police filed a charge sheet.

After trial, the Magistrate acquitted all the three accused on the following reasons: (1) Though there were seven witnesses cited in the charge sheet, only five witnesses, namely eye witnesses were examined. But the Medical Officer and the Sub Inspector of Police were not examined on the side of the prosecution (2) In spite of the issuance of summons, both medical officer and the Sub Inspector of Police were not produced. (3) P.W.1 says that the occurrence took place in front of the house of P.W.1, but P.W.2 says that the occurrence took place in front of the shop. So, there is a doubt with regard to the occurrence.

P.W.3 while giving statement u/s 161, Code of Criminal Procedure to the Police said that Accused-2, Pulendran sustained injuries on the middle finger and on the ring finger of the right hand and Accused-3 Siva Kumar sustained injuries on the thigh. But despite this, P.W.3 has not given any evidence relating to those injuries. There is also no evidence regarding the injuries on the accused. No witness has adduced any evidence or produced any materials as regards the injuries on the accused. As such, the evidence relating to the aspects of the injuries on the accused has been suppressed. Against this judgment, P.W.2 the Petitioner herein has come forward with this revision.

P.W.2 was also attacked by Accused 2 and 3 with the result P.W.2 sustained injuries on his head. As such this revision has been preferred by one of the aggrieved party who is P.W.2.

The contention raised by the Petitioner''s counsel Mr. Jeyakumar is that the learned Magistrate has acquitted all the accused on the ground that the witnesses like Doctor and Sub-Inspector of Police have not been produced in spite of the issuance of summons. This is wrong. The duty of the Magistrate in the warrant case is that he must take all coercive steps to ensure the presence of the witnesses, for coming to a conclusion as to whether the prosecution has proved beyond reasonable doubt. The learned Magistrate cannot act as merely as a spectator and simply acquit the accused in a serious case like this which is u/s 326, I.P.C. on the reason that the prosecution has failed to produce the official witnesses.

In support of his contention, he cited a Full Bench decision of this Court in State v. Veerappan and Ors. 1980 L.W. (Cri.) 187; and a decision in Marappa Gounder v. Venkatachalam and Anr. 1983 L.W.(Cri.) 1 and Anr. decision in Kasi Chettiar, P.L. v. Karuppasamy and Anr. 1994 2 L.W. (Cri.) 759. Learned Counsel for the Petitioner also submitted that the observation of the Magistrate that there is a contradiction with reference to the place of occurrence is also not correct.

The case of the prosecution is that the occurrence commenced in front of the house of P.W.1. While A1 attacked P.W.1, he was running away and he was chased by Accused-1 upto his shop and then again attacked. The occurrence took place both in front of the house of P.W.1 and in front of his shop. This is a continuous incident due to the running and chasing. Regarding the first incident, namely, the commencement of the occurrence which took place in front of the house of P.W.1, P.W.1 alone speaks and regarding the second incident in front of the shop it was spoken to by P.W.1 and P.W.2 because P.W.2 was available in the shop. As such the observation which has been given by the trial Court is factually wrong. Without understanding the details of the evidence the Magistrate committed a serious illegality in coming to a conclusion that there is a doubt with regard to the place of occurrence.

The learned Magistrate is again wrong in saying that the injuries on the accused have not been explained by the prosecution though they have given a statement with reference to those injuries on the accused u/s 161 Code of Criminal Procedure to the police.

The learned Magistrate is only concerned with the evidence adduced before the Court. He is not expected to look into the statement of Section 161, Code of Criminal Procedure and compare with the evidence and then comment upon the witness. Moreover, it is not the prosecution case that the accused sustained injuries in this incident and more so even when questioned u/s 313 Code of Criminal Procedure the accused never said that they also sustained injuries. As such, the Magistrate''s observation that the prosecution has suppressed about the injuries found on accused is without any basis and such illegality warrants the interference of the court in this revision.

Mr. Elango, learned Counsel appearing for the Respondents 1 to 3 contends that the powers of the revision is very limited as held in the decision in Ramu alias Ram Kumar and others Vs. Jagannath, He also further submits the decision in State v. Veerappan and Ors. 1980 L.W. (Crl.) 187 in which the Bench also held that after exhausting all the remedies the Magistrate has decided himself to acquit the accused, in the event of non production of witnesses. He also cited the decision in Hanuman Vs. State of Haryana, for the point that the non examination of Investigating Officer will not prejudice the case of the prosecution in any way.

The learned Government advocate also submits that the findings and observations given by the lower Court are not correct and the order of acquittal on these grounds were not valid in law.

It is very unfortunate that the Magistrate has acquitted the accused in the case u/s 326 of I.P.C., merely because some official witnesses have not been produced.

In the decision in Veerappan''s case 1980 L.W. (Cri.) 187 stated supra, the Full Bench of this Court has elaborately considered as to what is the course to be adopted by the learned Magistrate in the matter of ensuring the production of witnesses on the side of prosecution. The Full Bench of this Court has specifically held that the Magistrate must take coercive steps for ensuring the production of the official witnesses and even then if the witnesses were not produced, then the Magistrate has no other way except to acquit the accused. That is not the case here. The learned Magistrate simply says that several reminders have been sent to the doctor and the police official. There is nothing in the record to show that the coercive steps such as issuing of warrants, etc., have been taken in this case. As such, the Magistrate has committed a serious illegality.

It is observed in the decision in Veerappan''s case 1980 L.W. (Cri.) 187 stated supra, the Full Bench of this Court has held that the lower Court ought to have taken coercive process to secure the presence of the Investigating Officers and examined and set aside the order of the lower Court and remanded the entire matter to the trial Court for examining the remaining witnesses.

So on the basis of these decisions, I feel that the non examination of the important official witnesses, whose evidence will throw light upon the crime alleged would not entitle the accused to be acquitted.

The Magistrate has also wrongly observed as referred to by the counsel for the Petitioner, that there is a contradiction with reference to the place of occurrence between the evidence of P.W.1 and P.W.2 as narrated earlier. But there is no difference between the evidence of P.Ws.1 and 2. P.W.1 saw the first portion of the occurrence and P.W.2 saw the other portion of the occurrence. So these two occurrences took place in two different places. As such, there is no discrepancy with regard to the spot. So, the observation is clearly wrong. Thirdly, to shock the conscience of this Court I find that the learned Magistrate, by way of appreciating the evidence adduced by P.W.3, has gone through the statement u/s 161, Code of Criminal Procedure, held that the injuries sustained by the accused has not been explained and that P.W.3 in Court has suppressed about the same. This observation clearly reveals that the learned Magistrate has not understood the concept of the Evidence Act relating to appreciation of the evidence. The statement u/s 161 , Code of Criminal Procedure filed by the police along with the charge sheet is only a document which cannot be relied upon by the parties and which cannot be relied upon by the Court unless it is brought on record as evidence through some witnesses. It is used only for corroborating and contradicting while questions were put to the witnesses and Investigating Officer. So on the mere reason, Investigating and Medical Officer have not been examined, instead of taking effective and coercive process for ensuring the presence of these witnesses, the Magistrate cannot resort to acquit the accused without any valid reasons.

Of course Mr. Elango, learned Counsel strenuously contends that the powers of Revision is too narrow and limited. But time and again, this Court as well as the Supreme Court held that when the inadmissible evidence has been taken into consideration and the conclusion has been arrived on the surmises and conjectures, this Court has got power for remanding the same. Accordingly, I feel this is one of such case where this Court must interfere in view of the above serious illegality committed by the Magistrate.

In the result, the Revision is allowed. Since I feel this is a fit case in which the matter has to be remanded back for examination of other witnesses, the Court below shall take all efforts to secure the remaining witnesses either by way of summons or by warrant in this case and proceed to dispose of the case in accordance with law. I set aside the order of the Court below and remanded the matter back to the trial Court for restoring the case on its file and examine the witnesses. With this direction, this revision is allowed.