High Court of Kerala allowed the criminal revision petition and acquitted the accused. The court held that the non-examination of the Investigating Officer caused serious prejudice, especially given the non-recovery of weapons, making the prosecution case unsafe.
Conviction and sentence set aside; accused acquitted.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 15TH DAY OF JUNE 2023 / 25TH JYAISHTA, 1945
CRL.REV.PET NO. 46 OF 2005
CC 554/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS, THIRUVALLA CRA 154/2000 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,
PATHANAMTHITTA
REVISION PETITIONERS/ APPELLANTS/ ACCUSED NOS.1 TO 5 :
BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV
RESPONDENT/ RESPONDENT/ COMPLAINANT :
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING THE SUB INSPECTOR OF POLICE, THIRUVALLA POLICE STATION.
BY SMT.SREEJA, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02.06.2023, THE COURT ON 15.06.2023 PASSED THE FOLLOWING:
CRL.REV.PET NO. 46 OF 2005
2
BECHU KURIAN THOMAS, J.
Crl.R.P.No.46 of 2005
Dated this the 15th day of June, 2023
ORDER
The revision petitioners are accused Nos.1 to 5 in C.C.No.554 of 1996 on the files of the Judicial First Class Magistrate's Court, Thiruvalla. They were indicted for the offences under Sections 143, 147, 148, 324 & 326 r/w Section 149 of the Indian Penal Code, 1860. By judgment dated 15.07.2000, revision petitioners were convicted for the aforesaid offences and sentenced to undergo rigorous imprisonment for one year each, for the offence under Section 148 of IPC, apart from rigorous imprisonment for one year for the offence under Section 326 IPC. No separate sentences were imposed for the offences under Sections 143, 147 and 324 of the Indian Penal Code, 1860. The appeal filed as Crl.A.No.154/2000 was dismissed by the Additional Sessions Court, Pathanamthitta by judgment dated 26.10.2004. The revision petitioners are thus before this Court challenging their conviction and sentence.
CRL.REV.PET NO. 46 OF 2005
3
other accused inflicted cut injuries with sword sticks on various parts of the body including fracture of the leg and thereby committed the offences alleged.
4
CRL.REV.PET NO. 46 OF 2005
judgment of the trial court as well as the appellate court. According to the learned Public Prosecutor, no prejudice of any nature has been occasioned to the accused due to the non-examination of the investigating officer. Further, the learned Public Prosecutor asserted that the prosecution witnesses had clearly spoken about the incident and also identified the accused and therefore, the concurrent findings of fact entered into by both the courts ought not to be interfered with in the limited jurisdiction exercised by this Court under Section 397 r/w Section 401 of the Code of Criminal Procedure, 1973.
5
CRL.REV.PET NO. 46 OF 2005
counsel for the revision petitioners was with respect to the nonexamination of the investigating officer. In the decision in Ram Gulam Chaudhury and Others v. State of Bihar [AIR 2000 1 SC 2842] , while considering the question regarding non-examination of the Investigating Officer, it was held that though it is always desirable for the prosecution to examine the investigating officer, the non-examination by itself will not create any dent in the prosecution case or affect the credibility or trustworthiness of the testimony of the eye witnesses. The court went on to hold that in the absence of any prejudice to the accused, the non-examination of the Investigating Officer would not be fatal to the prosecution.
6
CRL.REV.PET NO. 46 OF 2005
PW2 creates doubt on the prosecution case. In this context, nonexamination of the Investigating Officer assumes significance and creates doubt on the veracity of the prosecution case. The contention of the revision petitioners that non-examination of the Investigating Officer has caused prejudice to them hence assumes significance.
7
CRL.REV.PET NO. 46 OF 2005
The criminal revision petition is allowed.
Sd/- BECHU KURIAN THOMAS, JUDGE
RKM
2 issues framed by the court
Whether the non-examination of the Investigating Officer caused serious prejudice to the accused.
Whether the benefit of doubt should be accorded to the accused considering the non-recovery of weapons and non-examination of the Investigating Officer.
Colour shows how this judgement treated each authority
Ram Gulam Chaudhury and Others v. State of BiharRelied on¶42
Ram Gulam Chaudhury and Others v. State of Bihar [AIR 2000 1 SC 2842] · Who else cites this
2 provisions across 2 enactments
PRASAD
JOSE
GOPI
RAVI
SAJI
STATE OF KERALA
BECHU KURIAN THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
