Kerala High Court
Ibrahimkutty vs State Of Kerala on 22 July, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942
Crl.Rev.Pet.No.1200 OF 2006
AGAINST THE JUDGMENT IN CRL.APPEAL NO. 905/2004 DATED 05-01-2006
OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM
AGAINST THE ORDER IN CC 1497/2001 DATED 23-08-2004 OF ADDITIONAL
CHIEF JUDICIAL MAGISTRATE , ERNAKULAM
REVISION PETITIONER/APPELLANT/ACCUSED:
IBRAHIMKUTTY
S/O ALIKUTTY,KAVUPARAMBIL,
KAVUPARAMBIL VEETTIL,,
PERINGALA, KUNNATHUNADU VILLAGE.
BY ADVS.
SRI.RONALD PAUL
SRI.A.T.ANILKUMAR
SRI.P.A.AUGUSTINE(AREEKATTEL)
RESPONDENT/STATE:
STATE OF KERALA
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.M.S.BREEZE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
22.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.1200 OF 2006
2
N.ANIL KUMAR, J
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Crl.R.P. No.1200 of 2006
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Dated this the 22nd day of July, 2020
ORDER
The revision petitioner was PW2 in CC No.1497/2001 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. When the revision petitioner was examined as PW2, he testified that he did not know the driver of the offending vehicle at the time of the accident, while he himself admitted that he was the conductor of the bus. At the time of delivery of the judgment in the said case, the learned magistrate expressed an opinion to the effect that PW2 appearing in such proceedings had knowingly or willfully given false evidence with the intention that such evidence should be used in such proceeding. The learned magistrate was satisfied that it was necessary and expedient in the interest of justice that PW2 should be tried summarily for giving false evidence. Accordingly, the learned magistrate took cognizance of the offence against PW2 as provided under Section 344 of the Cr.P.C. as MC No.42/2004. After a summary proceeding, the learned magistrate convicted and sentenced PW2 under Crl.Rev.Pet.No.1200 OF 2006 3 Section 344 of the Cr.P.C. to undergo simple imprisonment for three days by order dated 23.08.2004. Challenging the conviction and sentence, PW2 preferred Crl.Appeal No.905/2004 before the VI Sessions Court, Ernakulam. The learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court by judgment dated 05.01.2006 in Crl.Appeal No. 905/2004. Feeling aggrieved, PW2 is before this Court in this revision.
2. The learned magistrate granted PW2 a reasonable opportunity of showing cause as to why he should not be punished for such offence and accordingly, PW2 filed a statement contending that he had not given false evidence and further stated that he was a temporary conductor and his duty in the offending vehicle started only just 15 minutes before the alleged time of occurrence, on request of the permanent conductor of the bus. According to him, he did not get an opportunity for interaction with the bus driver. He also contended that immediately after the occurrence he rushed to the hospital with the injured.
3. Going by the proceedings of the case, it is seen that, PW2 was examined by the trial court in detail. However, he did not support the prosecution case in full. The learned Assistant Public Prosecutor in-charge of the case did not seek permission of the court to put leading questions to PW2, which might be asked in cross-examination. Non-identification of the Crl.Rev.Pet.No.1200 OF 2006 4 accused by PW2 during trial was not challenged seriously when he was examined before the court. The trial court acquitted the accused finding that the accused was not guilty for the offence punishable under Sections 279 and 304(A) of the Indian Penal Code. The investigating officer, who conducted investigation in the case was not examined before the trial court. Under the above circumstances, it could not be assumed that PW2 had not testified t in accordance with his statement recorded under Section 161 of the Cr.P.C.
4. Primarily, the finding of the trial court that PW2 appearing as a witness in the case had knowingly or willfully given false evidence is not correct. Section 344(2) of the Cr.P.C. provides that in every case initiated under Section 344 of Cr.P.C, the court is bound to follow, as nearly as may be practicable, the procedure prescribed for summary trials. In the case on hand, it is clearly brought out that PW2 entered appearance and filed a statement contending that he had not given false evidence before the court. In view of the above circumstances, the court is bound to follow the procedure provided under Section 262 of the Cr.P.C. As per Section 262 of Cr.P.C in all summary trials, the procedure specified in the Cr.P.C for the trial of summary case shall be followed. Going by the proceedings of the trial court, it is clear that such a procedure has not been followed. The trial court convicted and sentenced PW2 without affording an opportunity to Crl.Rev.Pet.No.1200 OF 2006 5 substantiate his innocence. Merely because, the witnesses has turned hostile to the prosecution, it is not proper for the court, which conducts the trial to initiate proceedings under Section 344 of the Cr.P.C., unless it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving false evidence. Going by the records of the court, this Court is of the view that initiation of prosecution under Section 344 of the Cr.P.C in the case on hand is not necessary and expedient in the interest of justice.
5. Judged by the above standards, this court is of the view that the conviction and sentence imposed by the trial court under Section 344 of the Cr.P.C. are liable to be set aside.
In the result, this Criminal Revision Petition stands allowed. The conviction and sentence imposed by the trial court as confirmed by the appellate court stands set aside. The revision petitioner/PW2 is found not guilty for the offence punishable under Section 344 of the Cr.P.C., and he is acquitted for the said offence. Cancelling his bail bond, this Court directs that he be set at liberty.
Sd/-
N.ANIL KUMAR, JUDGE dlk/22.07.2020