Chandran Pillai vs State Of Kerala on 18 October, 2016

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Kerala High Court

Chandran Pillai vs State Of Kerala on 18 October, 2016

1.Invoking the powers under Section 319 of the Code of Criminal Procedure, the Additional Sessions Judge - V, Kollam allowed the application filed by the Public Prosecutor and decided to proceed against the petitioner by arraying the petitioner as the 2nd accused in S.C. 1639 of 2011 on the files of the said Court. The said order is under challenge in this petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure.

2.The facts absolutely necessary for disposal of this petition as is revealed from the evidence of PW1, the prime witness of the prosecution, can be summarized as hereunder:-

The incident which led to the murder of Thankachan, Crl.R.P.No. 2149 of 2013 -2- her father, had occurred on 20/04/2009 in the courtyard of her house. PW1, her sister (PW 3) and father was in the house on that day as her mother and brother had gone to the Panchayath. While they were watching Television, the 1st accused came inside the courtyard of her house and started abusing them. He was holding an iron rod in his hand. The petitioner followed him shortly thereafter. Her father came out of the house and went to the courtyard. The 1st accused dealt a blow on the left side of the head of Thankachan with the iron rod. The petitioner then held her father so as to enable the 1st accused to inflict another blow. Thereafter the petitioner pushed her father down. The 1st accused was armed with MO1 weapon and the petitioner was carrying MO2 . When her father had fallen down, the accused inflicted repeated blows on his body with MOs 1 and MO2. They were threatened by the accused and therefore could not Crl.R.P.No. 2149 of 2013 -3- go to the rescue of their father. They immediately called her mother who was at the Petrol Pump. After sometime, her mother and brother came in a Bike. They informed the incident to the Kundara Police Station. They were asked to remove the injured to the Hospital. Her father was initially taken to the Atonement hospital and thereafter to the District Hospital where he was pronounced dead. According to the first informant, the 1st accused was residing in a neighboring house which belongs to the sister of the 2nd accused on rental basis. The witness further stated that she had given a statement before the Magistrate on 31/07/2010. It is based on the information given by the 1st informant that the crime was registered by the Kundara Police as Crime No. 371/09 for the offences punishable under Sections 427, 447, 323, 341, 294(b) and 302 r/w Sec.34 of the Indian Penal Code.

Crl.R.P.No. 2149 of 2013 -4-

3.In the course of trial, the prosecution had examined PWs 1 to 6 and Exts.P1 to P7 were marked. MOs 1 and 2 were also identified.

4.After the evidence of PWs 1 to 6 were completed, the Prosecutor filed an application under Section 319 of the Code wherein it is brought to the notice of the Court below that the occurrence witnesses, who were examined as PWs 1 and 3, have unequivocally stated about the involvement of the petitioner. It was also pointed out that the FIS and the 164 statements of the witnesses indicate that the petitioner was also involved and sought for invoking powers under section 319 of the Code.

5.The learned Sessions Court after evaluating the materials and after hearing the learned Public Prosecutor as well as the learned counsel appearing for the Defence, allowed the said petition and decided to proceed against the petitioner herein by incorporating him as the 2nd accused. Crl.R.P.No. 2149 of 2013 -5- The aforesaid order is assailed in this petition.

6.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

7.It is submitted by the learned counsel that a meticulous investigation was carried out by the Investigating Officer and charge was laid before the Court without including the petitioner in the array of the accused. It is also pointed out that the evidence tendered by the daughters of the deceased, who were examined as PWs 1 and 3, did not inspire confidence and their evidence ought not have been taken as sufficient to proceed against the petitioner under Section 319. It is urged that though the incident had allegedly taken place at 2.45 p.m, the first information statement was furnished much later at 8.00 p.m and it is also borne out from the evidence of the witness that the witnesses had consulted with the mother prior to lodging the first information statement. Referring to the evidence Crl.R.P.No. 2149 of 2013 -6- of PW2, the mother of PW1, it is pointed out that her evidence would reveal that she had occasion to inform the Police immediately after the incident and it has also come out from the evidence that the Police Officer attached to the Kundara Police Station had reached the place of occurrence. That be the case, according to the learned counsel, the first information statement said to have been given by PW1 cannot be treated as the first account. According to the learned counsel, the earliest version has not seen the light of the day. Referring to the evidence of PWs 1, 2 and 3, it is pointed out that it has come out in evidence that the victims who had gone to the Police Station and who had given the first information statement at 6.00 p.m were made to sit in the Police Station till late in the night and this would reveal that they had sufficient opportunity to embellish and give a role to the 2nd accused who is totally innocent. It is also pointed out by the Crl.R.P.No. 2149 of 2013 -7- learned counsel that the mother of PWs 1 and 3, who was examined as PW2, is a convicted accused in a serious offence and she has every reason to implicate the petitioner falsely. Learned Counsel would also highlight several discrepancies in the evidence of witnesses and would contend that the true version of the incident was not stated before the court by the witnesses. It is also submitted that the evidence tendered by the witness did not tally with the evidence of the doctor, who had issued the accident register cum wound certificate. According to the learned counsel, the learned Sessions Judge was not justified in invoking powers under Section 319 of the Code of Criminal Procedure merely on the basis of suspicion and ought to have satisfied that there are materials prima facie to conclude that there was likelihood of a conviction. It is finally urged that the impugned order will not reveal that the learned Sessions Judge had arrived at the Crl.R.P.No. 2149 of 2013 -8- necessary satisfaction prior to invoking the power which would be more than a prima facie satisfaction. The learned counsel also relied on the decision of the Apex Court in Babubhai Bhimabhai Bokhiria and Another v. State of Gujarat and Others [(2014) 5 SCC 568] to contend that the degree of satisfaction for invoking power under Section 319 of the Code is much higher and contended that the order passed by the learned Magistrate cannot be sustained.

8.The contention of the learned counsel is vehemently opposed by the learned Public Prosecutor. According to the learned Public Prosecutor, the Apex Court in Hardeep Singh v. State of Punjab [(2014) 3 SCC 92] has held that the court below is the sole repository of justice and duty is cast upon it to uphold the rule of law. According to the learned Public Prosecutor, when the evidence adduced before the court below prima facie revealed that the Crl.R.P.No. 2149 of 2013 -9- petitioner also had a role to play in the commission of the offence, the learned Sessions Judge was justified in invoking the powers under Section 319 of the Code to proceed against him. The evidence contemplated under Section 319 is not the evidence which is tested by cross examination.

9.I have heard the rival submissions and have also perused the impugned order.

10.It has to be mentioned that in the FI statement furnished by PW1 on 20.4.2009 at 8.00 p.m., the presence of the petitioner is specifically stated. It is also stated that the petitioner had pushed the deceased down on the ground and that he also had participated in the incident. The petitioner has been arrayed as the 2nd accused in the FIR . On 24.4.2009, a report was submitted by the Investigating officer deleting the name of the petitioner and also for removing Sections 427, 323, 341 read with Crl.R.P.No. 2149 of 2013 -10- section 34 of the IPC. On 16.07.2009, the petitioner appears to have filed an application before the learned Magistrate with a view to conduct a proper investigation. According to her, the statements of the occurrence witnesses were not recorded and the 2nd accused who had a role to play in the incident has been left out from the array of the accused. This application was filed by the de facto complainant on the basis of the decision of the Apex Court in Sakiri Vasu V State of U.P. And Others [AIR 2008 SC 907]. It can also be seen from the records that an order has been passed by the learned Magistrate on 29.3.2010 in C.M.P. No 9618 of 2009 from which it can be discerned that the statement of the witnesses has not been properly recorded and the Investigating officer has been directed by the learned Magistrate to explore the possibility of recording the statement of the witnesses under Section 164 of the Code of Criminal Procedure. Crl.R.P.No. 2149 of 2013 -11- Exhibit P2 is the 164 statement of PW1 which is recorded on 31.7.2010 and Exhibit P4 is the 164 statement of PW3 recorded on 3.8.2010. In both these statements, specific role has been attributed to the petitioner herein. It is the specific case of PWs 1 to 3 that they have not given any statement before the Investigating Officer that the petitioner is not involved.

11.In Hardeep Singh v. State of Punjab [(2014) 3 SCC 92], a Constitution Bench of the Apex Court had occasion to consider the various facets of Section 319 of the Code of Criminal Procedure and it was held as follows in paragraph No.106 of the Judgment:-

Thus, we hold that though only a prima facie case is to be established from the evidence led before the Court not necessarily tested on the anvil of Cross - Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of Crl.R.P.No. 2149 of 2013 -12- framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under S.319 CrPC. In S.319 CrPC the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under S.319 CrPC to form any opinion as to the guilt of the accused.

Further in answer to certain questions posed it was held as follows in paragraph 117 of the judgment :-

Question (iv) What is the nature of the satisfaction required to invoke the power under S.319 CrPC to arraign an accused? Whether the power under S.319 (1) CrPC can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted?

Answer 117.5. Though under S.319(4)(b) Cr.PC theaccused subsequently impleaded is to be treated as if he had been an accused when Crl.R.P.No. 2149 of 2013 -13- the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under S.319 CrPC would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial -

therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question (v) Does the power under S.319 CrPC extend to persons not named in the FIR or named in the FIR but not charge - sheeted or who have been discharged?

Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge - sheeted or a person who has been discharged can be summoned under S.319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial.

However, in so far as an accused who has been discharged is concerned the requirement of S.300 and S.398 CrPC has to be complied with before he can be summoned afresh.

Crl.R.P.No. 2149 of 2013 -14-

12.Sufficient and cogent reasons have been recorded by the Court below to satisfy the ingredients of Section 319 of the Code of Criminal Procedure. The trial court has found the evidence of PWs 1 and 3 convincing enough for the purpose of exercise of extra ordinary jurisdiction and invoking the powers under Section 319 of the Code. The Court below has considered the evidence of PWs 1 and 3 for the limited purpose to ascertain whether the materials are sufficient to proceed against the petitioner. The fact that in the FI statement furnished by PW1, the petitioner's involvement was mentioned was taken note of by the Court below . The subsequent statements furnished before the learned Magistrate was also considered. The learned Sessions Judge has also relied on the decision of the Apex Court in Dharam Pal V State of Haryana [2013 (3) KLT 438] wherein it was observed that the Court below has to ascertain whether the evidence on record is such, which Crl.R.P.No. 2149 of 2013 -15- would reasonably lead to conviction of the persons sought to be summoned. After having given my anxious consideration to the contentions advanced, I do not find any illegality in the order passed by the Court below .

13.However, none of the observations made above be taken to mean that this Court has formed an opinion about the credibility of the evidence of the prosecution witnesses. Those are aspects that are to be considered by the Court below. Observations made are for the limited purpose of disposal of this petition .

The revision petition lacks merits and the same is dismissed.

Sd/-

RAJA VIJAYARAGHAVAN, V. JUDGE Ps/14/10/16

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Kerala High Court