IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939
Crl.MC.No. 1670 of 2018
AGAINST THE ORDER IN CMP.NO.525/2018 IN CC.NO.3/2011 DATED 1.3.2018
ON THE FILES OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD
PETITIONER(S)/ACCUSED NO.1
GULAM ABDUL NIZAR
AGED 40 YEARS, S/O. GULAM MOIDEEN,
FATHIMA MANZIL, PADAKODI HOUSE,
KULLOOR VILLAGE, MANGALORE, D.K. DISTRICT,
KARANATAKA STATE.
BY ADVS.SRI.M.SASINDRAN
SRI.SATHEESHAN ALAKKADAN
RESPONDENT(S)/COMPLAINANT:
1. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM – 682 031.
2. THE STATION HOUSE OFFICER
KUMBALA POLICE STATION, KASARGOD DISTRICT – 671 321.
BY SRI.B.JAYASURYA, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
12-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 1670 of 2018 ()
APPENDIX
PETITIONER(S)’ EXHIBITS
ANNEXURE AI. A TRUE COPY OF THE COMPLAINT DATED 17.3.2010
FILED BY THE WIFE OF THE PETITIONER
ANNEXURE AII. A TRUE COPY OF THE PETITION TO RECEIVE THE
WITNESS LIST AND THE WITNESS LIST ANNEXED
ALONG WITH THE APPLICATION FILED BY THE
ACCUSED PERSONS IN C.C.NO.3/2011
ANNEXURE AIII. A TRUE COPY OF THE ORDER DATED 1.3.2018 IN
CMP.NO.525/2018 IN C.C.NO.3/2011 ON THE FILE OF CHIEF
JUDICIAL MAGISTRATE COURT, KASARGOD
RESPONDENT(S) EXHIBITS NIL
R.AV //TRUE COPY//
PA TO JUDGE
SUNIL THOMAS, J.
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Crl.M.C.No.1670 of 2018
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Dated this the 12th day of March, 2018
ORDER
The petitioner herein is arrayed as an accused in
CC.NO.3/2011 on the files of the Chief Judicial
Magistrate Court, Kasaragod for offences punishable
under sections 498A, 324, 506(ii) read with section 34
of the Indian Penal Code and under section 28 and 30
of the Arms Act. Accused Nos.2 and 3, who are his
parents and the 4th accused is the sister of the
petitioner. It seems that the defacto complainant had
a specific case that she was subjected to matrimonial
cruelty and that she was assaulted by the petitioner
herein on a specified day. At the time of trial, she gave
oral evidence that she had gone to a hospital and had
taken treatment there. However, she did not adduce
medical evidence touching upon her treatment nor she
got examined the doctors, who were claimed to have
examined her. When the petitioner herein was called
Crl.M.C.No.1670 of 2018
2
upon to enter on defence, the petitioner herein filed a
list of witnesses including certain doctors and a
beautician of a beauty parlour, where the defacto
complainant is stated to have undergone hair
straightening procedure. The principal of the school
where the child of the defacto complainant was
studying was also sought to be examined. The
application filed as CMP.No.525/2018 to issue
summons to the above witnesses was dismissed by
the order of the Chief Judicial Magistrate dated
1.3.2018. This is impugned in this Crl.M.C.
2. The petition was dismissed by the court
below on a specific premise that the defacto
complainant did not let in any evidence to establish
that she had undergone any treatment. She also did
not examine any doctors to prove any injury. The
court below held that in the above circumstance it
was not the duty of the accused to rebut the evidence
of a witness by contra evidence.
3. The learned counsel for the petitioner
Crl.M.C.No.1670 of 2018
3
submitted that he was only discharging his duty and
as an abundant caution, so that he cannot later be
burdened with the liability of not having rebutted the
evidence let in by the prosecution. The court itself
has opined that the prosecution had not examined
any doctor to prove any injury. Hence onus of
proving otherwise does not shift to the accused. The
petitioner herein has also volunteered and offered to
counter the evidence, what ever it may be, let in by
the petitioner herein. In that circumstances, I agree
with the finding of the court below that evidence need
not be let in to rebut the oral testimony of one
witness in the present circumstance.
Crl.M.C is disposed of as above.
Sd/-
SUNIL THOMAS, JUDGE
R.AV
//True Copy//
PA to Judge
