STATE OF KERALA Vs. SAITHU MUHAMMED PAREED KUNJU

JUDGEMENT

(1.) This appeal by the State, arises out of the acquittal of the four accused, in a case against them upon a police report for offences under S.448 read with S.114, I.P.C. Including the complainant, four witnesses were examined for the prosecution. But the Sub-Inspector of Police did not attend even on the adjourned date of hearing and was not examined. Without even considering the evidence on record, on account of the non examination of the investigating officer, the learned Second Class Magistrate, Trivandrum acquitted the accused under S.245 (1), Crl. P.C. Even if the investigating officer was not examined, it was the clear duty of the Magistrate under S.245, Crl. P.C. to consider the merits of the case before proceeding to acquit the accused. Of course the non examination of the investigating officer, is a circumstance which may be taken into consideration by the court, but does not per se furnish a ground for acquittal. The acquittal cannot be supported. Now that the case has to go back, the learned Magistrate will see whether he cannot enforce the attendance of the investigating officer, for the sake of completeness of the trial. With the above observations, the acquittal is set aside and the case is sent back for disposal in accordance with law. The appeal is allowed.