P. MAMMADKUTTY Vs. STATE

JUDGEMENT

(1.) Petitioners are A1, A2 and A5 in C.C. No. 24/88 which was instituted on a police report against the petitioners and respondents 2 to 4 in this revision. Petitioners as well as respondents 2 to 4 were tried before the learned Magistrate for offences under S.326, 143, 147, 148, 447 and 323 read with S.149 IPC on an allegation that the petitioners along with respondents 2 to 4 formed themselves into an unlawful assembly on 12-10-1987 and with a common object trespassed into the property for tilling operation and when P.W. 1 came to the scene on hearing about the incident, was caught hold of by his neck and pushed down by the first petitioner and that thereafter the 2nd petitioner and respondents 2 to 4 beat P.W. 1 with the handle of a spade and with sticks. P. W.2 the wife of P. W. 1 when came to the scene on hearing the commotion was also beaten by the petitioners as well as respondents 2 to 4 as a result of which both P. Ws. 1 and 2 sustained simple and grievous injuries. They were then taken to the District Hospital, Manjeri where they were treated and on an intimation from the hospital Police reached the hospital and a statement was recorded, upon which a crime was registered. Investigation was taken up which resulted in filing of a final report as stated above against the petitioners as well as against respondents 2 to 4.

(2.) To prove the above allegations the prosecution examined PWs 1 to 13 and marked Exts. P1 to P10 and MOs. 1 to 4. When the petitioners were questioned, they denied their complicity, but did not choose to examine any witnesses on their side. The Trial Court, on consideration of the materials, came to the conclusion that the petitioners, though have to be convicted for the offences with which they were charged, they have to be acquitted for the offence under S.326 read with 149 IPC as the prosecution did not examine any doctor to prove that the victims suffered grievous injuries. Accordingly the petitioners and respondents 2 to 4 were sentenced to pay a fine of Rs. 500/- each for the offences under S.447, 323, 148 IPC. In default of payment of fine they were directed to undergo simple imprisonment for a period of three months each. No separate sentence was awarded for the offences under S.143 and 147 IPC. Aggrieved by the said order of conviction the petitioners as well as respondents 2 to 4 filed an appeal to the Court of Sessions, which for the reasons mentioned in the judgment set aside the order of the Trial Court and remanded the matter back for trial and disposal.

(3.) In my view the order of the appellate court has to be set aside. The appellate court found that there was a serious flaw in the judgment of the lower court as in the view of the appellate court the Trial Court erred in acquitting the petitioners as well as respondents 2 to 4 under S.326 IPC. on the ground that the prosecution did not succeed in proving that the victims have suffered grievous injuries. I am of the view that the Sessions Court has in fact committed a grave illegality in sending the matter back to the Trial Court for filling up a lacuna on the side of the prosecution. It is not in dispute that before the Trial Court the doctor who examined PWs 1 and 2 could not be examined and that the wound certificates issued by him were not proved. The learned Sessions Judge took the view that even if, inspite of repeated steps the presence of the medical officer could not be secured, it ought to have accepted the certificates as conclusive proof and should have given a finding thereon. This view of the learned Sessions Judge is not correct. Any document can only be proved by the maker and if under any circumstances the doctor who issued the certificate is not available and could not be produced in court for his examination, then the only course left to the prosecution is to examine another doctor from the same hospital who was conversant with the handwriting of the doctor who issued the certificate. A medical certificate cannot be accepted as conclusive proof without the author being examined. When the prosecution has failed to discharge their duty, the Sessions Judge ought to have remanded the matter back to the Trial Court giving them an opportunity to fill up this lacuna, more so when there was no appeal against the order of acquittal filed by the prosecution. It is not disputed that the prosecution did not file any appeal against the order of acquittal passed against the petitioners and respondents 2 to 4. Nor was there any revision by the defacto complainant against the said order of acquittal for an offence under S.326 read with S.149 IPC. In the absence of either an appeal by the persecution or a revision by the defacto complainant the Sessions Judge was not justified in remanding the matter back to the Trial Court on an appeal filed by the petitioners and respondents 2 to 4 against their conviction.