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Judgments of Supreme Court of India and High Courts

Against The Order In … vs By Advs.Sri.M.Sasindran on 1 March, 2018

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.
————————–
Crl.M.C.No.1670 of 2018
—————————
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

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