STATE Vs. A M KOTHANDARAMAN

JUDGEMENT

(1.) THIS Appeal has been preferred by the State against the order of acquittal passed by the First Additional Sessions Judge, Cuddalore, in S.C. No. 129 of 1973.

(2.) AFTER the appeal was admitted, notices were issued to the sole accused, who is the respondent herein. They were all returned with the endorsement that the accused is an underground extremist since August, 1980. The accused prior to 1980, was detained under the MISA from 29.8.1977 to 23.9.1977. His present whereabouts are not known. Hence, the papers are placed before this Court for orders.

(3.) THE brief facts of the case which give rise to this criminal appeal are as follows: THE accused/respondent and ten others along with the members of Indian Communist (Marxist-Leninist) organised the said party and held meetings at Neyveli. In May, 1969, the respondent herein conducted classes and incited the members to use force with weapons to wipe out the rich landlords, capitalists and money lenders. THE respondent took part in the meeting held in the house of one Shanmuga Nadar in the month of August and there also it is alleged that he instigated the members to adopt the guerilla system and attack the rich people with knife and spear. THE Sub-Inspector of Neyveli Police Station was waylaid and stabbed. THE case was registered against ten persons. One of the accused Rangarajan turned as an Approver. Since the accused/respondent was absconding, the cases of the accused were tried separately and they were disposed of. After apprehending the respondent, the Approver was also examined and two other witnesses were also examined by the Committing Court. THE approver sticked on to his version. THEn the case was committed and the charge was framed against the accused/ respondent under Section 307 read with 109 and 120-B Indian Penal Code. P.Ws. 1 to 16 were examined and Exhibits P.1 to P.24 were marked. After the disposal of the first case, the Approver was released. Summons were taken to him for examination in the present case and warrant was also issued in the case. In spite of the best efforts by the police, they would not secure the Approver for examination before the Sessions Court. THE learned Public Prosecutor filed a petition in Criminal M.P.No.56 of 1979 to admit the evidence given by the Approver before the Committal Court under Section 33 of the Evidence Act as substantive evidence before the Sessions Court. THE said application was dismissed and the accused was acquitted mainly on the ground that the material witness viz., the Approver was not examined to prove the conspiracy charge.