Kerala High Court
Prasanna.K.V vs Sreevalsan on 21 June, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY,THE 1ST DAY OF NOVEMBER 2013/10TH KARTHIKA, 1935
CRL.A.No. 718 of 2006 ( )
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AGAINST THE ORDER/JUDGMENT IN CC 513/2003 of J.F.M.C.-II, KANNUR DATED
21-06-2005
APPELLANT(S)/COMPLAINANT:
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PRASANNA.K.V., D/O.JANAKI,
POOKANDI HOUSE, ANENIMOTTA, MUTHUPPALA P.O.,
ANJARAKANDY AMSOM, MAMBA DESOM, KANNUR.
BY ADV. SRI.K.C.SANTHOSHKUMAR
RESPONDENT(S)/ACCUSED AND STATE:
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1. SREEVALSAN, S/O.MEENAKSHI,
"SREEVIHAR", KEERIYADU, P.O.KATTAMPALLY.
2. P.MEENAKSHI, W/O.ANANTHAN,
"SREEVIHAR", KEERIYODU, P.O.KATTAMPALLY.
3. S.VIJAYAKUMARI, D/O.MEENAKSHI,
"SREEVIHAR", KEERIYODU, P.O.KATTAMPALLY.
4. STATE OF KERALA, REP. BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 TO R3 BY ADVS. SRI.K.V.SOHAN
SMT.SREEJA SOHAN.K.
R4 BY GOVERNMENT PLEADER SMT.P.MAYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-11-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
P. BHAVADASAN, J.
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Crl.Appeal No. 718 of 2006
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Dated this the 1st day of November, 2013
JUDGMENT
Aggrieved by the order of acquittal dated 21.06.2005 in C.C No.513 of 2003 before the Judicial First Class Magistrate Court, Kannur wherein the accused was prosecuted for the offence punishable under Section 498A read with Section 34 of Indian Penal Code, the complainant has come up in appeal.
2.The first accused is the husband of the complainant and the 2nd accused is his mother. The 3rd accused is the sister of 1st accused. The marriage between the complainant and the 1st accused was solemnized on 17.04.2000 and ever since the couple had been staying in the matrimonial house. On 05.05.2000, the 1st accused left for employment abroad, the allegation is that thereafter the 2nd and 3rd accused began to show their true colour and began to ill-treat the complainant. It is further alleged that a sum of `1,00,000/- was Crl.Appeal No. 718 of 2006 2 demanded at the time of marriage and soon after the 1st accused left, the 2nd and 3rd accused began to persisted and wanted her to bring the said amount. Further it is alleged that on 15.08.2002 when 1st accused returned from his place of employment, he did not visit his wife and on 25.08.2002 when the complainant went to her matrimonial house, she was not allowed to enter the house. On the basis of these allegations, the complaint was laid.
3.Cognizance on the complaint was taken and procedures under Sections 200 to 203 of Cr.P.C were followed and summons was issued to the accused. On appearance of the accused, procedure under Section 244 Cr.P.C., was followed. Finding that the accused could not be discharged, charge was framed and the accused pleaded not guilty to the same. The accused thereafter exercise their right under Section 246(4) when P.Ws.1 to 3 were directed by the court below to appear for cross Crl.Appeal No. 718 of 2006 3 examination. They did not do so. In spite of several postings, on all days on which the accused were present, ultimately unable to proceed with the case the court below acquitted the accused under Section 248(1) Cr.P.C. It is the said order of acquittal that it was assailed.
4.The learned counsel appearing for the appellant contended that there were enough material on records for the court to proceed and the acquittal was unmerited. It is also contended that the court below was not justified in acquitting the accused under Section 248 of Cr.P.C., and at worst it could have been only a discharge under Section 249 Cr.P.C. These infirmities make the order of acquittal invalid in law.
5.There is absolutely no merit in the above submission. The complainant and the witnesses were examined under Section 244 of Cr.P.C., and their statements were Crl.Appeal No. 718 of 2006 4 recorded. It is true that at that stage itself the accused had a right of cross examination. But it is well settled that they need not exercise that right at that point of time. The charge was framed against the accused read over and explained to the accused to which they pleaded not guilty. Thereafter the accused exercised their right to cross examine the prosecution witnesses and they were to be re-called. The learned magistrate acting in accordance with Section 246(6) directed the P.Ws.1 to 3, who are examined under Section 244 Cr.P.C., to be present in court for cross examination. The order of the court below shows the number of postings were given to the complainant and the witnesses, to be present before court for cross examination. There were as many as seven postings, but on all those days either the complainant or the witnesses were not present and on the last occasion their counsel also was not present. The learned JFCM formed the opinion that complainant was not diligent or Crl.Appeal No. 718 of 2006 5 not interested in the prosecution of the case and acquitted the accused under Section 248 Cr.P.C.
6.The claim put forward that there could not have been acquittal under Section 248 Cr.P.C and there could have only a discharge under 249 Cr.P.C., by the learned Magistrate cannot be countenanced. Section 249 of Cr.P.C. applies in a complaint case where either the offence is non cognizable or is compoundable. The offence alleged in the present case is 498A of IPC, it is neither compoundable nor non cognizable. Section 249 Cr.P.C can have no application. It was due to the persistent absence on the part of the complainant, and his witnesses which disclosed that complainant had no intention to prosecute the complaint that the acquittal was made under Section 248 Cr.P.C. It is well settled that when a witness does not make himself available for cross examination, his evidence in chief examination is of no use. There is no legal or factual infirmity in the Crl.Appeal No. 718 of 2006 6 action taken by the lower court in acquitting the accused under Section 248 Cr.P.C. No grounds are made out in interfering this appeal. This appeal without any merits whatsoever, is dismissed.
sd/-
(P. BHAVADASAN, JUDGE) AMV/ /TRUE COPY/ P.A.TO JUDGE