PADMALAYAN Vs. SARASAN,S/O.GOPALAN, SARAN NIVAS

JUDGEMENT

(1.) THE petitioners are accused Nos.1 and 3 in C.C.No. 334/1996 before the Judicial First Class Magistrate's Court, Varkala. They were prosecuted under Sections 141, 142, 143, 148, 149, 307, 324 and 379 read with Section 34 of the Indian Penal Code. The prosecution was initiated on a private complaint filed by the 1st respondent herein.

(2.) THE allegations in the complaint were as follows:- On 13.1.1995 at about 9.a.m., while the 1st respondent was doing work along with his employees in the coir industry in his property, the 2nd accused came there and then left immediately. After sometime an Ambassador car bearing No.KL7/D-9734 driven by the 5th accused came there and accused Nos.1, 3, 4 and 5 came out of the car with weapons. There was a sword in the hands of 1st accused. The 3rd accused was holding an iron rod and accused Nos.4 and 5 were holding cudgels. The 1st accused exhorted the 3rd accused to kill PW1 telling that he is the person concerned and thereupon the 3rd accused beat PW1's head with the iron rod. The 1st respondent obstructed the attack by his left hand and the blow fell on his head after touching his left finger. He fell down and accused Nos. 4 and 5 beat indiscriminately on several parts of his body with cudgels in their hands and he sustained injuries and pain.

(3.) THE second contention is that the Magistrate has, without examining the doctor, who proved the wound certificate in evidence under Section 244, relied upon the same without giving the petitioners an opportunity to cross-examine him as prescribed under Section 246(4) of the Cr.P.C. Since the decision of the Magistrate is based on the evidence of PW5, who was not examined during the trial the conviction is vitiated, is the contention.