STATE OF KERALA Vs. KRISHNAN

JUDGEMENT

(1.) THIS is an appeal filed by the State against the order of acquittal passed by the Addl. Sub Magistrate of Ponkunnam in C. C. 68/60. The charge against the accused was that on the night of 5-11-59 he broke open the lock of a shop room belonging to the 1st informant. He was caught red-handed and entrusted to the police. The police after investigation charge sheeted the accused. The learned Magistrate on a perusal of the records under S. 173 Cr l. P. C. framed charges against the respondent accused under S. 457 & 380 read with S. 511 IPC. and posted the case for evidence.

(2.) ORIGINALLY it was posted to 22-4-60. On that day the prosecutor and the accused were present but the witnesses were not present. So the case was adjourned to 11-5-60. On that day when the case was called the accused and two witnesses were present. The prosecutor was not present. It is stated in the appeal memorandum that the Head constable who was in charge of the case had left the court with the permission of the Magistrate. Whether it is true or not, it is admitted that the prosecution witnesses were present in court. The Magistrate however did not examine the witnesses actually present in court, but acquitted the accused on the ground that there is no prosecutor to examine the witnesses. He held that mere presence of the witnesses without anybody to examine them would not amount to producing the witnesses within the meaning of Clause. 7 of S. 251a & acquitted the accused under S. 251a Clause. 11.