Kerala High Court
M.Abdul Rahim vs State Of Kerala on 24 September, 2010
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2247 of 2010()
1. M.ABDUL RAHIM,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. UNNI, S/O. KRISHNAN @ SASTHAVU KRISHNAN,
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :24/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2247 of 2010
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Dated this the 24th day of September, 2010.
O R D E R
Crime No.75/07 of Vattappara Police Station was registered for the offence punishable u/s.307 of IPC, connected with an incident taken place at about 2 a.m. on 24.2.2007, in which the allegation is that the accused with the intention of committing theft or similar offences, armed with implements like tapping knife, head light and chopper reached near the rubber estate of Aliyarukunju and the revision petitioner intervened and questioned him and the accused struck with tapping knife, which when defended by the revision petitioner and during such incident, the revision petitioner sustained wound by the left side of neck and accused repeatedly struck him with chopper with the intention of causing death and wounded the left side of the scalp, left side of the upper leg, left cheek, right side of the neck back and above the right elbow and scratches on chest and thus the accused committed the offences punishable u/s.307 IPC. 2 Crl. R.P.No.2247 of 2010
2. After investigation, the police filed a report against one Unni, who is the 2nd respondent herein alleging offence u/s.307 IPC. On the basis of the above report S.C.No.2012/08 was instituted and during the trial of the case Pws.1 to 15 were examined and Exts.P1 to P17 were marked and M.O.1 to 15 were also identified and marked. Suffice to say that the revision petitioner was one among the prosecution witnesses who was examined as PW10. Finally the trial court found that the accused has committed the offence punishable u/s.308 of IPC and accordingly he is sentenced to undergo rigorous imprisonment for a period 5 years and also sentenced to pay fine of Rs.10,000/- and in default of payment of fine, the accused is directed to undergo rigorous imprisonment for 6 months. The trial court viz., the Court of Asst. Sessions Judge, Nedumangadu, thus convicted the accused and imposed sentence by its judgment dated 27.2.2010 in S.C.No.2012/08.
3. The revision petitioner herein preferred the above revision petition and filed the same before this court on 7.7.2010, 3 Crl. R.P.No.2247 of 2010 in which petition the prayer is to allow the revision petition setting aside the judgment dated 27.2.2010 of the trial court to the extent in not invoking S.319 of Cr.P.C. and implicating Hussain and Sherif as accused for the offence punishable u/s.307 of IPC.
4. Mr.Pirappancode V.S.Sudheer, the learned counsel appearing for the revision petitioner vehemently argued that, especially on the strength of two decisions of the apex Court reported in Shashi Kant Singh Vs. Tarkeshwar Singh & anr. [2002(5) SCC 738] and in Kailash Vs. State of Rajasthan [AIR 2008 SC 1564] and another decision of this court reported in Narayanan Nambiar Vs. State of Kerala [1987(1) KLT 871], that there are sufficient materials and evidence to proceed against the said Hussain and Sherif u/s.319 of Cr.P.C. and even if the trial is over, in the light of the above decisions, this court can order denova trial after implicating the above persons, after invoking s.319 of Cr.P.C.
5. On the other hand, the learned Public Prosecutor submitted that, on a reading of S.319 would show that the 4 Crl. R.P.No.2247 of 2010 powers given to the courts under S.319 can be invoked only during the "trial" or "inquiry" and in the present case that stages were already over and at this highly belated stage, no such petition can be entertained.
6. I have carefully considered the arguments advanced by both the counsels for the revision petitioner as well as the learned Public Prosecutor and also gone through the judgments impugned. I have also perused the decisions cited by the learned counsel.
7. The submission of the learned counsel is that going by the evidence of PW10, the revision petitioner himself, it can be seen that there are ample evidence to show that the above two persons are involved in the commission of the offence but the learned trial Judge miserably failed to invoke S.319 in time and the said defect can be cured while exercising the revisional jurisdiction of this court even if the trial is over.
8. Anxiously I have gone through the evidence of PW10, the revision petitioner. The only evidence which is high-lighted 5 Crl. R.P.No.2247 of 2010 by the learned counsel for the revision petitioner is that, there was some verbal transaction between the revision petitioner and the said Hussain, regarding some monitory aspect. Besides the above, nothing brought to my notice from the evidence of PW10. No other evidence or materials also brought to my notice.
9. In this juncture, it is relevant to note that the alleged incident was taken place on 24.2.2007. Though the crime was not registered on the basis of the statement of PW10, the revision petitioner who is an injured, after the registration of the crime and during the investigation, PW10 was questioned by the Investigating Officer and his statement was recorded u/s.161 of Cr.P.C. In that statement also, nothing stated attributing any overtact against the said Hussain and Sherif so as to attract either S.307 or S.308 or any other penal provision. Neither in the deposition of PW10 nor in his 161 statement there is any whisper that the incident on 24.2.2007 was taken place in pursuance to any conspiracy or as directed by the said two persons. Therefore, in fact absolutely there is no materials to 6 Crl. R.P.No.2247 of 2010 invoke s.319 of Cr.P.C.
10. Going by S.319 of Cr.P.C. it can be seen that, it is a special and specific provision which gave authority to the trial court to implicate a person as an accused even though he has not named as accused in the trial. If it is brought on record during the trial or inquiry that, any other person have any role in the commission of the offence, for which the trial being held, certainly that court can implicate a person against whom evidence was recorded, even if that person is not facing the trial. Ofcourse that powers can be exercised at any stage before the conclusion of the trial. But while exercising that jurisdiction the trial court has to adopt the procedure contemplated in sub- section 4 of S.319 of Cr.P.C. As the trial court has already concluded the trial, without invoking S.319, it can be safely presumed that the trial court is of the opinion that, no other person has involved in the commission of the offence. As the revision petitioner has failed to point out any evidence, warranting the invocation of S.319, the above presumption is 7 Crl. R.P.No.2247 of 2010 reinforced.
11. It is also relevant to note that, the revision petitioner herein was examined as PW10 on 12.8.2010. But till the filing of the revision petition, no step was taken by him to implicate any other person in the above case or nothing was brought to the notice of the trial Judge, so as to provide him to invoke S.319 of Cr.P.C. Therefore, prayer for implicating the above two persons, after the trial of the case, at this belated stage has to be rejected.
12. The learned counsel for the revision petitioner on the strength of the decision of the apex Court, in Shashi Kant Singh Vs. Tarkeshwar Singh & anr. [2002(5) SCC 738] submitted that, even after the trial, while invoking appellate jurisdiction or revisional jurisdiction, the superior court can invoke S.319 of Cr.P.C. in the present case. But I am unable to endorse the above submission, on the basis of the above decisions, since the facts and circumstances involved in the present case are entirely different from that of the reported decisions cited supra. In the 8 Crl. R.P.No.2247 of 2010 above reported cases, the trial Judge himself issued summons after invoking s.319 of Cr.P.C. but the same was not materialised because of the further litigation and in the meanwhile the trial was concluded. But in the present case nothing was brought to the notice of the trial court Judge and no summons was issued. Therefore the above decisions has no application in the present case.
In the light of the above facts and circumstances involved in the case and the discussions and materials referred above, I am of the view that this revision petition is devoid of any merit and accordingly the same is dismissed.
V.K.MOHANAN, Judge.
ami/