Kerala High Court
Sulaiman vs State Of Kerala Rep. By on 30 October, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934
CRL.A.No. 1011 of 2008 (B)
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SC.760/2005 of ADDL. DISTRICT COURT(ADHOC 2), THRISSUR
APPELLANT(S)/ACCUSED NOS. 1 AND 2:
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1. SULAIMAN
KOZHIPALAM VEEDU, THONIPADAM DESOM
VAVULIYIPURAM VILLAGE, ALATHUR TALUK
PALAKKAD DISTRICT.
2. SAIDU MOHAMMED, S/O.HASSANAR,
KOZHIPALAM VEEDU, THONIPADAM DESOM
VAVULIYIPURAM VILLAGE, ALATHUR TALUK
PALAKKAD DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.P.VENUGOPAL (1086/92)
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ.
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CRL.A.NO.1011 OF 2008
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Dated 30th October, 2012
JUDGMENT
Sasidharan Nambiar,J.
Appellants were convicted and sentenced for the offences under Sections 454, 302 and 392 read with Section 34 of Indian Penal Code. The prosecution case is that appellants are brothers of one Shamsuddin who was employed in the house of PW5 Samuel, husband of deceased Mariyamma. PW1 Peter @ Benny is their son and PW2 Mohi is the son of the sister of PW1. PW3 Bastin is the son of PW1. On the morning of 21/11/2004 all the inmates of the house of PW5, except deceased Mariyamma had gone to the prayer hall. By about 11.30 a.m, PW3 sought permission of PW1 to go to their house, which is near to the CRA 1011/08 2 prayer hall, to answer the call of nature. When PW3 reached the house and opened the front door, he found the body of deceased Mariyamma lying on the floor with a thorthu tied on her neck. PW3 rushed back to the prayer hall and informed it to PW1. PW2 Mohi, was also there along with PW1 at that time. Hearing the news PW2 accompanied by PW3 rushed to the house followed by Pws.1, 5 and others. It is alleged that when Pws.2 and 3 opened the door they found the appellants running out of the house. Though PW2 chased them he could not restrain them. PW1 along with PW5 removed the thorthu from the neck of Mariyamma and took her in a car to Jubilee Mission Hospital, Thrissur. On examination the doctor found Mariyamma dead. PW1 reached Mannuthy police station and furnished Ext.P1 FI statement. It was recorded by PW11 the Assistant Sub Inspector who CRA 1011/08 3 prepared Ext.P1(a) FIR and registered the crime. PW11 informed PW16, the then Circle Inspector of Police who took over the investigation immediately. PW16 conducted the inquest at 2.30 p.m and prepared Ext.P2 inquest report. He submitted necessary requisition for conducting postmortem examination. PW9 Dr.Rajaram, Professor of Forensic Medicine, Medical College Hospital, Thrissur conducted the autopsy and prepared Ext.P8 postmortem certificate finding that Mariyamma died due to combined effects of compression over the chest, strangulation and smothering. PW16 reached the scene of occurrence and prepared Ext.P3 scene mahazar at 5.15 p.m. At the time of preparing the scene mahazar PW16 assured the presence of PW14 finger print expert and collected chance finger prints and palm prints from the house, as the almirah and shelf were found searched CRA 1011/08 4 by the assailants, PW14 got the photographs of the finger prints prepared by PW15 Victor David, the photographic Assistant of Police Photographic Bureau. On 26/11/2004 PW16 arrested both the accused. On the information furnished by the first accused PW16 recovered MO.1 wrist watch belonging to PW5 and found missing after the incident, under Ext.P4 recovery mahazar. Under Ext.P6 recovery mahazar PW16 seized the dresses worn by the first accused. After the arrest of the accused, the finger prints of the accused were collected and sent to the finger print Bureau. PW14 examined the chance finger prints collected from the scene of occurrence with the finger prints of the accused collected and forwarded to the finger print Bureau and submitted Ext.P16 report finding that the chance finger and palm prints with that of the accused. After CRA 1011/08 5 completing investigation final report was laid before Judicial First Class Magistrate-III, Thrissur, who committed the case to Sessions Court, Thrissur. Learned Sessions Judge made over the case for trial to Additional Sessions Court. Accused were defended by a counsel of their choice.
2. When learned Additional Sessions Judge framed charges for the offences under Sections 454, 302 and 392 read with Section 34 of Indian Penal Code, read over and explained to the accused, they pleaded not guilty. The prosecution examined 18 witnesses and marked 30 exhibits and identified MO.1 wrist watch. After closing the prosecution evidence, accused were questioned under Section 313 of Code of Criminal Procedure. Though the accused denied the incriminating evidence put to them, they did not offer their version on the incident CRA 1011/08 6 apart from claiming that they are innocent. Learned Additional Sessions Judge finding that the accused cannot be acquitted under Section 232 of Code of Criminal Procedure, called them to enter on their defence and adduce evidence. Accused did not adduce any evidence.
3. Learned Additional Sessions Judge on the evidence, relying on the evidence of Pws.2 and 3 held that they identified the appellants at the time when Pws.2 and 3 reached the house, after PW3 returned to the prayer hall and intimated PW1 that the grand mother Mariyamma is lying on the floor with a thorthu tied on her neck. Learned Additional Sessions Judge also relied on the identification of the second accused by PW2 and both the accused by PW3 as corroborated by Ext.P11 report of PW13 Judicial First Class Magistrate-II, Thrissur who conducted the test identification parade, CRA 1011/08 7 to rely on the identification by Pws.2 and 3 from the witness box. Learned Additional Sessions Judge also relied on recovery of MO.1 wrist watch under Ext.P4 recovery mahazar, though Pws.7 and 8, the attesting witnesses turned hostile and relied on the evidence of Pws.1 and 5 on identity of MO.1, which was taken away by the culprits at the time of the incident. Learned Additional Sessions Judge found that as the recovery of MO.1 was immediately after the murder and the robbery and it was recovered on the information furnished by the first accused held that it connects the appellants with the murder and robbery. Learned Additional Sessions Judge also relied on Ext.P16 report submitted by PW14, whereunder he found that the chance finger prints collected at the scene of occurrence tally with that of the accused. Based on these CRA 1011/08 8 findings both the accused were found guilty of the offences under Sections 454, 302 and 392 read with Section 34 of Indian Penal Code. Accused were convicted and sentenced as stated earlier. It is challenged in this appeal.
4. Learned Senior counsel appearing for the appellants and learned Public Prosecutor were heard.
5. Learned counsel appearing for the appellants argued that evidence of Pws.2 and 3 that they identified the accused when Pws.2 and 3 reached the house from the prayer hall, can never be believed. It was pointed out that in Ext.P1 FI statement furnished by PW1 immediately after the incident, there was no case for PW1 that after PW3 returned to the prayer hall and intimated that he found the grand mother lying on the floor, Pws.2 and 3 reached the house earlier to PW1 or identified CRA 1011/08 9 the culprits. It was pointed out that instead what was stated in Ext.P1 was that PW3 had seen a person running from the house when he reached the house for the first time and if that be so, the culprits had escaped from the house even before PW3 left the house and reached the prayer hall and if that be so, even if Pws.2 and 3 had reached the house later, they would not have any opportunity to witness the culprits running from the house. Learned Senior counsel argued that if Pws.2 or 3 had identified the culprits who ran away from the house and had any doubt of resemblance for them with Shamsuddin, an employee who was working in the house six months earlier to the incident, PW1 would not have disclosed in Ext.P1 that he does not suspect any person. It is pointed out that if the version of Pws.2 and 3 is correct, in all human probability the name of Shamsuddin CRA 1011/08 10 or a person similar to Shamsuddin would have been disclosed in Ext.P1 FI statement and it is clear that the case of identifying the culprits later was cooked up at a later stage of investigation and therefore, their evidence should not have been relied on. Learned Senior counsel also pointed out that in any case identification of the accused from the witness box should not have been relied on, when the accused were admittedly shown to Pws.2 and 3 before the test identification parade from the police station and hence, no value could be attached to the identification of the accused during the test identification parade and therefore, based on the test identification in the test identification parade by Pws.2 and 3, their evidence cannot be relied on. Learned Senior counsel also argued that recovery of MO.1 wrist watch should not have been relied CRA 1011/08 11 on. It was pointed out that there is contradictory evidence with regard to purchase of MO.1 wrist watch as according to PW1 and PW5 it was purchased by PW5, when according to PW16, the investigation revealed that it was given to PW5 by a relative and not purchased by PW5. It was also pointed out that the missing of MO.1 watch was not disclosed in Ext.P1 FI statement and when Pws.7 and 8 who are witnesses to Ext.P4 recovery mahazar deposed that they did not witness the recovery and signed in Ext.P4 from the road, evidence of PW16 on the recovery should not have been relied on. Learned Senior counsel also pointed out that recovery was not affected not from the place disclosed in the portion of confession statement and on that ground no reliance could be placed on the recovery of MO.1. Learned Senior counsel finally argued CRA 1011/08 12 that though Ext.P16 report, with the evidence of PW14 shows that finger prints and palm prints examined by PW14 tallies with chance finger prints collected, there is no evidence to prove that the finger prints or the palm prints so compared was that of any of the accused as PW16 Investigating officer has no case that specimen finger prints or palm prints of the accused were called and hence identity of the finger prints and palm prints examined by PW14 and compared with the chance print collected at the scene of occurrence is not established and so based on Ext.P16 report also the accused cannot be convicted.
6. Learned Public Prosecutor submitted that there is no reason to disbelieve the identification of the accused by Pws.2 and 3. It was pointed out that PW1 furnished Ext.P1 FI statement immediately on returning from the CRA 1011/08 13 hospital and the mental condition of PW1 who lost his mother in a gruesome manner is to be born in mind, while appreciating Ext.P1 FI statement. It was pointed out that evidence of PW1 establish that loss of MO.1 watch as well as identification of Pws.2 and 3 of the culprits were made known to PW1 only after returning from the police station after lodging Ext.P1 FI statement and hence omission to disclose those facts in Ext.P1 is not a ground to disbelieve the evidence of Pws.2 and 3 on the identification of the accused or MO.1. It was argued that when PW3 found the grand mother was lying on the floor, he being a boy aged only 14 years at that time, rushed to the prayer hall and informed his father PW1 and along with PW2, rushed back to the house and then witnessed two culprits, running from the house and in such circumstances, there is CRA 1011/08 14 no reason to disbelieve the identification. It was pointed out that PW3 had identified both the accused, though PW2 identified only the second accused and when the identification of the accused from the witness box was strengthened by the previous identification at the test identification parade, learned Additional Sessions Judge rightly relied on their evidence. It was also argued that Mo.1 was identified as the watch which was found missing, immediately after murder, and the evidence of PW16 establish that it was recovered under Ext.P4 recovery mahazar on the information furnished by the first accused and therefore, recovery of MO.1 also connects the accused with the murder and robbery. Learned Public Prosecutor pointed out that though PW16 omitted to depose from the witness box that finger prints and palm prints of the accused CRA 1011/08 15 were collected after their arrest, evidence of PW14 establish that he received the finger prints and palm prints of the accused forwarded by the Investigating officer and those prints were collected from the accused after their arrest by PW16 and there is no reason to suspect the acts and in such circumstances, Ext.P16 report conclusively prove that the accused were the culprits. It was argued that though brother of the accused was an employee of PW5 and in that capacity the accused used to visit the house of PW5 and used to take food supplied by the deceased Mariyamma, their finger prints could not have been found inside the house, to be collected by PW14 and when there cannot be identical finger prints for two persons and Ext.P16 conclusively establish that the finger prints of the accused tally with the finger prints CRA 1011/08 16 collected from the scene of occurrence, it is conclusively proved that the accused trespassed into the house and committed the murder and robbed MO.1 watch and in such circumstances, the conviction is perfectly correct.
7. Fact that deceased Mariyamma the wife of PW5 was found lying on the floor of the house, when PW3 reached the house from the prayer hall by about 11.30 a.m on 21/11/2004, was not disputed. The evidence of Pws.1,3 and 5 on this aspect was not challenged. Their evidence conclusively establish that deceased Mariyamma was found dead and lying on the floor with a thorthu tied on her neck. Evidence of Pws.1 and 3 establish that after PW3 informed PW1 and Pws.1 to 3 and 5 reached the house. Pws.1 and 5 untied the thorthu from the neck.
The thorthu was not seized by the Investigating officer. Evidence of Pws.1 to 3 CRA 1011/08 17 and 5 that deceased was immediately taken to Jubilee Mission Hospital and on examination she was declared dead was also not challenged. Evidence of PW9 the Professor of Forensic Medicine, Medical College Hospital, Thrissur with Ext.P8 postmortem certificate conclusively establish that deceased Mariyamma died due to the combined effects of compression over her chest, strangulation and smothering. The question is who are responsible for the strangulation, smothering and murder of Mariyamma.
8. Learned Additional Sessions Judge relied on the identification of the accused by Pws.2 and 3 and for that purpose relied on the result of test identification parade conducted by PW13, evidenced by Ext.P11 report. So also recovery of Mo.1 watch under Ext.P4 recovery mahazar by PW16 on the information furnished by CRA 1011/08 18 the first accused and the identity of MO.1 being the watch of PW5, based on the evidence of Pws.1 and 5 were relied on. Learned Additional Sessions Judge also relied on the identity of chance prints collected by PW14 and compared with finger prints supplied by PW16 the Investigating Officer, evidenced by Ext.P16 report. Ext.P16 report establish that the finger prints forwarded by the Investigating Officer to the finger print Bureau were compared with the chance prints collected by PW14 from the scene of occurrence and the comparison establish that they are the finger prints received at the finger print Bureau forwarded by the Investigating Officer. If the finger prints forwarded by PW16 are the finger prints collected from the accused, it is definitely the valuable piece of evidence, to connect the accused with the murder and the CRA 1011/08 19 robbery, as there cannot be similar finger prints to two different human beings. But the question is whether there is evidence to prove that the finger prints compared by PW14 with the chance finger prints collected from the scene of occurrence, are that of the accused.
9. Learned Senior counsel appearing for the appellants pointed out that PW16 the Investigating officer, did not depose before the Court that he collected the finger prints or palm prints of either of the accused after their arrest. It was also pointed out that in none of the remand reports submitted to the Court during investigation, it was pointed out that the finger prints of the accused were collected. It was pointed out that though Ext.P16 report shows that chance prints collected by PW15 tally with the finger prints of the accused, when there is no evidence to CRA 1011/08 20 prove that the finger prints so compared by PW14 with the chance prints are that of the accused, Ext.P16 report or the evidence of PW14 is of no use. It is therefore, argued that evidence on the identity of the finger print cannot be relied on to find the appellants guilty. It was pointed out that under Section 4 of Kerala Identification of Prisoners Act, finger print or footprint impressions of suspected accused could be collected and later compared, such prints could be taken, only by a police officer as defined under clause (b) of Section 2 of the said Act and when there is no evidence to prove that PW16 has collected such finger prints, the comparison of finger prints by PW14 cannot be used as against the appellants. It was also argued that when there is no evidence to prove that finger prints or palm prints of the accused were collected by a CRA 1011/08 21 police officer as defined under the said Act, even if finger prints were collected and sent to the finger print Bureau, the report based on such comparison of prints cannot be used against the accused. Learned Senior counsel also argued that even though Kerala Identification of Prisoners Act, 1963 enables a Police Officer as defined therein to collect the finger prints and footprint impressions, it does not authorize collection of palm prints and therefore, based on the report of comparison of palm prints collected from the second accused, based on Ext.P16 report or the evidence of PW14, the accused cannot be found guilty.
10. Learned Public Prosecutor pointed out that the Police Officer as defined under Section 2(b) of Identification of Prisoners Act, includes an officer in charge of the CRA 1011/08 22 Police Station and he is authorised to take measurements as provided under Section 4, which includes taking finger prints impressions and foot print impressions which include palm prints and though PW16 omitted to depose that finger prints or the palm prints of the accused were collected and forwarded after their arrest, it was not disputed and in such circumstances, Ext.P16 report cannot be ignored and Ext.P16 conclusively establish that it was the accused who committed the murder when the chance finger prints of the accused in the house of the deceased could not in any other way explained by the appellants.
11. As stated earlier Ext.P16 and the evidence of PW14 based on comparison of the chance prints collected by PW14 from the scene of occurrence is very valuable piece of evidence. But the question is whether there is CRA 1011/08 23 evidence to prove that what was compared by PW14 are the finger prints or the palm prints of the accused collected after their arrest. True, there is no evidence as such to prove that PW16 after the arrest of the accused had taken either their finger prints or palm prints. It is also true that Ext.P16 report submitted by PW14 establish that to compare with the chance finger prints collected from the scene of occurrence, specimen finger prints and palm prints of the accused were forwarded to the finger print Bureau and they were compared by PW14 and furnished Ext.P16 report. But there is complete lack of evidence as to who collected the finger prints and palm prints and when they were collected. Argument of the learned Senior counsel is that when there is no evidence that fact, the lacuna cannot be filled even by adducing additional evidence at the CRA 1011/08 24 appellate stage or remanding the case to enable the prosecution to re-call and examine the witnesses, as it would be filling up the lacuna which would definitely prejudice the accused. Learned Public Prosecutor pointed out that the case diary reveals that finger prints were collected during investigation and copies of the finger prints are available in the case diary and by omission this fact was omitted to be brought on record at the time of examination of PW16 and the omission on the part of the prosecution is not a lacuna which cannot be filled up, as there is distinction between the lacuna of the prosecution and prosecutor. Learned Public Prosecutor relied on the decision of the Division Bench of this Court in Raghunathan v. State of Kerala (1995 ILR (2) Kerala 257). Learned Public Prosecutor argued that even if there is no evidence as to CRA 1011/08 25 who collected the finger prints, on that ground the accused is not entitled to be acquitted as the learned Additional Sessions Judge should have invoked the powers under Section 311 of the Code of Criminal Procedure and brought out the details of collection of finger prints examined by PW14 and in such circumstances, PW16 is to be recalled and examined or the case is to be remanded to the Sessions Court for re-calling and examining PW16 and if it is brought out that the specimen finger prints were collected by any other Police Officer, if not PW16, to examine him also. Learned Senior counsel opposed the submission submitting that if it is permitted, it would be permitting to fill up the lacuna which would prejudice the accused and if the finger prints were collected by a Police Officer below the rank of a Sub Inspector, like PW11, who is only an Assistant CRA 1011/08 26 Sub Inspector, who is below the rank of a Sub Inspector, the finger prints so collected cannot be used for any purpose and hence no purpose will be served by remanding the case.
12. A learned Single Judge of this Court (as his Lordship then was) had occasion to consider the distinction between lacuna in the prosecution case and the omission of Public Prosecutor to let in material evidence in Suja P.Chacko v. State of Kerala (1994 (1) KLT 148). It was held.
"Whenever a court is inclined to exercise powers under S.311 of the Code or S. 165 of the Evidence Act the objection very often taken is that such exercise would cause "filling the lacuna" in the prosecution case or the defence case. If any new material is to come on record, can it be forestalled,on the premise that it CRA 1011/08 27 would fill up the lacuna in the prosecution or defence? Lacuna in the prosecution is not to be understood as corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fallout of an error committed while adducing evidence is not what judicial pronouncements termed as "lacuna" in the case. "To err is human" is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to foreclose such attempt on the premise that it would fill up a lacuna in the case. Lacuna in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix, the advantage of which should normally go to the accused in the criminal trial. If such an advantage for the accused CRA 1011/08 28 is allowed to be watered down or diluted, the advantage would get transposed into a disadvantage for the defence and consequently serious prejudice would be caused to the accused. The court, while exercising powers under S.311 of the Code or S.165 of the Evidence Act should guard against causing such prejudice to the defence or to the prosecution. But that is no reason to pre-empt the right of a party to correct any error or to adduce proper and relevant evidence which through any inadvertence one party would have missed or overlooked at an earlier stage."
13. Honourable Supreme Court in Mohanlal Shamji Soni v. Union of India (AIR 1991 SC 1346), cautioned that due care should be taken by the court while exercising the power under Section 311 of Code of Criminal CRA 1011/08 29 Procedure as it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
14. Supreme Court in Ram Chander v. The State of Haryana (AIR 1981 SC 1036) considered this aspect and held, "The adversary system of trial being what it is there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referred or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable CRA 1011/08 30 distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witness in order to ascertain the truth.
Following this dictum this Court in Sebastian v. Food Inspector (1987 (1) KLT 130) held, "The criticism that the court is trying to fill up lacuna in prosecution evidence when it exercises powers under the Section is partly due to an obsolete thinking about the role of the court in adversary system of trial. It was considered at CRA 1011/08 31 least in some quarters that the function of a court is merely to judge the cause after silently observing or watching the performance by the rival sides in a ease. Gone are the days when court was supposed to be only a silent umpire. In a criminal court mainly three functionaries are involved in the endeavour to reach the final goal, namely, dispensation of criminal justice Prosecution and the defence are two of them and the court is the third important (if not the most important) functionary. The court has to play a dynamic role in the endeavour to reach the final goal. Of course it must be done by keeping within the bounds provided by law. The language used in S.165 of the Evidence Act, and the powers envisaged in S.311 of the Code of Criminal Procedure are sufficiently CRA 1011/08 32 eloquent informants of the dynamic role which the court is expected to function in a trial."
15. Learned Senior counsel relied on the decision of the Supreme Court in State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314) and argued that Honourable Supreme Court did not permit introduction of new materials by examining the witnesses who should have been examined at the early stage to prove that opium which was seized were properly sealed during the period when the opium was in the possession of those persons, holding that granting permission to examine those persons would fill up the gaps or lacuna left at the trial and it squarely applies to the present case also.
16. We find from the evidence that PW14 when examined, deposed that he had collected the chance finger prints from the CRA 1011/08 33 scene of occurrence and later compared them with the finger prints received at the finger print Bureau and forwarded by the Investigating officer as that of the accused. Ext.P16 report corroborates that evidence. When PW16 the Investigating Officer was examined, no question was put in chief examination by the Public Prosecutor regarding the collection of finger prints or palm prints from the accused, even though evidence has already been let in by PW16 that specimen finger prints and palm prints were forwarded to finger print Bureau by the Investigating Officer. It was clearly an omission on the part of the Public Prosecutor. As pointed out earlier, the learned Sessions Judge can never be a silent spectator during recording the evidence and when it was found that the Prosecutor omitted to put the relevant question it was the bounden duty of CRA 1011/08 34 the learned Sessions Judge to put the said question to PW16, invoking the power provided under Section 165 of the Indian Evidence Act. Even if it was omitted to be invoked at that stage, learned Sessions Judge had ample power under Section 311 to re-call and examine PW16 or if it is revealed on such examination that the finger prints and palm prints were collected by any other Police officer, to summon him and examine him to clear the ambiguity. Unfortunately, learned Sessions Judge also omitted to act properly and as a result, there is no evidence on record as to who collected the finger prints and the palm prints which were forwarded to the finger print Bureau and later examined and compared by PW14 with the chance prints collected from the scene of occurrence.
17. The question is whether this CRA 1011/08 35 omission is a lacuna in the prosecution case or an omission on the part of the Prosecutor. If it is a lacuna in the prosecution case, it cannot be allowed to be filled up either by invoking the power under Section 311 or by remanding the case back to the Sessions Court. But as stated earlier it is clearly an omission on the part of the Public Prosecutor, as they are materials which should have been let in during the evidence. If that be so, we find it not in the interest of justice to treat the omission of the Prosecutor as a lacuna in the prosecution case and to grant benefit to the accused by acquitting them on that ground. A fair trial warrants the entire material evidence produced before the Court and to appreciate the same granting opportunity to the defence to challenge those materials and then the Court is to decide the case. When the CRA 1011/08 36 Prosecutor omitted to bring on record the necessary materials, the Court is bound to invoke the power provided under Section 311 of Code of Criminal Procedure and get the materials brought on record. It cannot be said to be prejudicial to the accused. Considering the fact that if recalling and examining PW16, it may be necessary to examine some other Police Officer, if he had collected the specimen finger prints and palm prints, as learned Public Prosecutor submitted that it was collected by PW11, the Assistant Sub Inspector on the instructions of PW16, we find that it is in the interest of justice to remand the case back to the trial Court, instead of letting additional evidence before this Court so that both sides will get sufficient opportunities.
18. Learned Senior counsel submitted that PW11 is not a Police Officer as CRA 1011/08 37 defined under Section 2(b) of the Kerala Identification of Prisoners Act, 1963. Hence that question also is necessarily to be considered by the learned Sessions Judge. In view of the said findings we find it not necessary to enter a finding on the reliability of the evidence of Pws.2 and 3 on the identification of the accused or the reliability of recovery of MO.1 under Ext.P4 recovery mahazar at this stage.
19. In view of the findings, the conviction of the accused in S.C.760/2005 by Additional Sessions Court, Thrissur is set aside. S.C.760/2005 is remanded to Additional Sessions Court for fresh disposal. Learned Additional Sessions Judge shall recall PW16 invoking the powers under Sections 311 of the Code of Criminal Procedure and shall permit the Prosecutor to let in the material evidence CRA 1011/08 38 regarding the collection of specimen finger prints and palm prints, which were examined by PW14 at the finger print Bureau, evidenced by Ext.P16 report. If on such examination it is brought out that, it was not PW16 who personally collected the said finger prints and the palm prints, but PW11 or any other Police Officer, learned Additional Sessions Judge shall also recall PW11 or summon and examine such Police Officer. In that event, the question whether PW11 or the witness so examined is a Police Officer competent to take finger print or palm print, as provided under Kerala Identification of Prisoners Act, is also to be considered by the learned Additional Sessions Judge. The accused is also entitled to raise all other contentions available, including the legality of collecting palm prints. Learned Additional Sessions Judge shall CRA 1011/08 39 dispose the case, without delay and in any event, within three months from the date of receipt of the records. Sent back the records immediately.
M.SASIDHARAN NAMBIAR, JUDGE.
C.T.RAVIKUMAR, JUDGE.
uj.