Criminal Procedure; Santhosh Kumar Vs. State [Kerala High Court, 26-10-2016]

Code of Criminal Procedure, 1973 – S.162 of the Code does not prohibit the use of the 161 statement of any witness in any other proceeding other than the inquiry or trial in respect of the offence for which the investigation was conducted. However the court should bear in mind the restrictions imposed under S.162 of the Code and S.145 of the Evidence Act because what is sought to be used from the case diary so produced, are the previous statements recorded under S.161 of the Code.

Code of Criminal Procedure, 1973 – the power under Section 311 of the Code must be invoked only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The courts were directed to bear in mind that fair trial entails the interest of the accused, the victim and the society and therefore the grant of fair and proper opportunities to the persons concerned must be ensured being a constitutional goal, as well as a human right.

161 Statement

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RAJA VIJAYARAGHAVAN.V, J

Crl.M.C. No.6611 of 2016

Dated this the 26th day of October, 2016

CRL.MP.NO.2715/2016 IN SC.NO.1485/2008 OF ADDITIONAL SESSIONS COURT-VII, THIRUVANANTHAPURAM CRIME NO. 51/2007 OF PETTA POLICE STATION,THIRUVANANTHAPURAM DISTRICT

PETITIONER/ACCUSED NO.1

SANTHOSH KUMAR, THIRUVANANTHAPURAM.

BY SRI.B.RAMAN PILLAI,SENIOR ADVOCATE ADVS.SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.M.VIVEK SRI.A.RAJESH SRI.B.KRISHNA KUMAR SRI.M.SUNILKUMAR

RESPONDENT/COMPLAINANT

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

BY STATE ATTORNEY SRI.K.V.SOHAN

O R D E R

1. The petitioner is the 1st accused in S.C. No 1485 of 2008 on the file of the Additional Sessions Judge-VII, Thiruvanathapuram. He along with the other accused stand indicted for offences punishable under

Sections 120 (B), 143, 147, 148, 212, 201 and Section 302 read with Section 149 of the IPC

2. Challenge in this petition is directed against the order by which the application filed under

Section 311 of the Code of Criminal Procedure

(hereinafter referred to as “the Code” for brevity) to recall and re-examine PW75 was dismissed by the learned Sessions Judge.

3. Trial in the aforesaid case had commenced and as many as 77 witnesses were examined and the prosecution evidence was closed.

4. PW 5, Amaikanth, was cited to prove Exhibit P2 and P3 mahazars dated 11.4.2011. By these mahazars, prosecution sought to prove the recovery of the weapons allegedly used by accused Nos. 2 and 3.

5. According to the defence, PW 5 was a close friend of deceased Vishnu and he is also a local leader of a prominent political party. The recovery was stage managed according to them. To discredit the said witness, suggestive questions were put while he was in the box which was promptly denied. According to the defence, PW 5 and deceased Vishnu had been cited as CW No. 159 and 160 in the final report in Crime No 51 of 2007, relating to the case involving the murder of Aprani Krishnakumar. PW75, the investigating officer in the instant case had investigated that case as well and he had recorded his 161 statement of PW 5. The said statement, according to the defence, contained specific reference that Amaikanth had close connection with deceased Vishnu and that he was a local leader of CPI ( M) and also the CITU, the trade Union Wing of CPI ( M).

6. Later, when PW75 was examined, he admitted before Court that he had conducted the investigation in Crime No.51 of 2007 and that he had submitted the final report before Court. The said case had been tried and disposed of as S.C. No.1540 of 2009 in the year 2013 itself. He also admitted in his evidence that PW 5 was cited as a witness along with deceased Vishnu in the said case. It appears that when the said witness was questioned, the defence was not in possession of the previous statement of PW5 in S.C. No.1540 of 2009.

7. Immediately thereafter, the defence filed an application to recall PW 5, which was allowed by the Court below. This was after obtaining the copy of the final report In Crime No.51 of 2007 of the Petta Police Station by filing an application before this Court where Crl.Appeal No.1250 of 2003 challenging the conviction and sentence of one of the accused was pending.

8. PW 5 was further cross-examined and in the course of examination, the witness admitted that he was a witness in the earlier case but was not examined during the trial. He was cross-examined with reference to its previous statement in Crime No.51 of 2007 of Petta Police Station. When he denied, an attempt was made by the defence counsel to confront him with his previous statement in writing under section 145 of the Evidence Act. The said procedure was objected to by the learned Public Prosecutor. However, pointed questions with reference to his previous statement in Crime No.51 of 2007 was put to the witness which were emphatically denied. Thereafter, the petitioner filed an application for recalling PW75 to prove the certified copy of the final report in Crime No.51 of 2007 of the Petta Police Station which was tried as S.C.No.1540 of 2009 and was disposed. The attempt of the defence was to prove the fact that PW75 had recorded the statement of PW5 under section 161 of the Code and to discredit him with his previous statement. The said application was dismissed by the impugned order.

9. I have heard Sri B Raman Pillai, the learned Senior Counsel appearing for the petitioner as well as Sri K.V. Sohan the learned State Attorney.

10. The learned Senior Counsel referring to the decision of this Court in

Surendran v. State of Kerala, 1993 (2) KLT 674

and of the Apex Court in

State of Kerala v. Babu, (1999) 4 SCC 621

contended that the reasons given by the Court below to reject the application cannot be sustained. According to the learned Counsel Section 162 of the Code does not prohibit the use of statement of witness recorded in any other proceeding other than the enquiry or trial in respect of the offence for which the investigation was conducted. It is further submitted that the only objective of the defence was to challenge the credibility of PW 5 by bringing on record that he was lying on a material point. It is further argued that the learned Sessions Judge had permitted the recalling of PW 5 for further examination after being convinced about the nature of the contradictory statements made by him in the statement recorded under Section 161 of the Code in Crime No 51 of 2007 of the Petta Police Station. While the witness was cross examined, he was confronted with his previous statement in writing. He had gone to the extent of stating that he had not given any statement to PW 75 under section 161 of the Code. Sufficient materials relating to his connection with the deceased Vishnu and his party affiliation was brought out with reference to his previous statement while he was cross-examined. According to the counsel, the only course open to the defence is to recall the Investigating officer who had recorded his previous statement in the other crime and prove the said aspects. The learned Senior Counsel would further submit referring to the deposition of PW 75 , that the observation of the Court below that while the Investigating officer was cross examined, no question was put to him in connection with the statement given by PW 5 in Crime No 51 of 2007 of Petta Police Station is clearly incorrect. Finally it is submitted that the denial of an opportunity to the defence to recall PW 75 for proving the aforesaid aspect had occasioned in miscarriage of justice.

11. Per Contra, the learned State Attorney would take this Court through the sequence of events and would submit that the attempt is only to protract the trial proceedings. It is pointed out that when PW 5 was recalled, the defence was not in possession of the certified copy of the 161 statement of PW 5 in Crime No 51 of 2007. The witness was not confronted with his previous statement in writing and in view of the above, no purpose would be served in recalling the Investigating Officer. It is further submitted that the trial in Crime No. 51 of 2007 has already been completed and Appeal is pending before the Court. It is further submitted that the learned Additional Sessions Judge was justified in dismissing the application on the ground that the further examination of PW 75 was not essential for arriving at a just decision.

12. Have considered the rival submissions and have gone through the depositions of PW 5 and PW 75. I have also anxiously gone through the impugned order.

13. The first reason given by the Court below to disallow the application is that the defence had not produced the certified copy of the 161 statement of the witness when PW 5 was recalled and cross-examined. It is evident from the deposition of PW5, that the defence had put specific questions by inviting his attention to the previous statement in Crime No.51 of 2007 of the Petta Police Station. I am also not able to accept the finding of the Court below that no questions were put to PW 75 in connection with Crime No.51 of 2007. The deposition is replete with questions in connection with the said crime. All that the defence wanted to bring on record was that PW 5 was also a witness in the previous case and that he had given a statement touching his affiliation with a political party and also that he had acquaintance with the deceased Vishnu. The right of the cross examiner could not have been denied on the ground that the said case had no connection with the present case.

14. In

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