K.V.Jooju vs State Of Kerala
2023 Latest Caselaw 3723 Ker

              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
 815/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, THRISSUR


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:
 CRL.R.P.NO. 3575 OF 2006
                                      2



                      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 CRL.R.P.NO. 3575 OF 2006

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 CRL.R.P.NO. 3575 OF 2006

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 CRL.R.P.NO. 3575 OF 2006

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