Antony @ Jose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 4TH DAY OF NOVEMBER 2016/13TH KARTHIKA, 1938** ## **Crl.MC.No. 6776 of 2016 ()** **--------------------------CP.NO. 26/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA CRIME NO. 246/2008 OF KELAKOM POLICE STATION , KANNUR DISTRICT CMP.NO.3835/2016 IN SC.NO.630/2011 OF ADDITIONAL SESSIONS COURT-III, THALASSERY** **--------------------** ## **PETITIONER/ACCUSED:** **------------------------------------** **ANTONY @ JOSE, S/O JOSEPH, AGED 56 YEARS, ERTHOTTU HOUSE, KELAKAM AMSOM, KELAKAM P.O, KANNUR DISTRICT.** **BY ADVS.SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI** **RESPONDENT/COMPLAINANT:** **---------------------------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM THROUGH S.H.O KELAKAM POLICE STATION, KANNUR DISTRICT.** **BY PUBLIC PROSECUTOR SRI.T.R.RANJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 6776 of 2016 ()** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** ## **--------------------------------------------** ## **ANNEXURE A1 TRUE COPY OF THE FIR IN S.C NO.630/2011 ON THE FILE OF JFCM, KUTHUPARAMBA** **ANNEXURE A2 TRUE COPY OF THE DEPOSITION OF PW1 IN S.C NO 630/2011 ON THE FILE OF ADDITIONAL SESSIONS COURT NO. III, THALASSERY. ANNEXURE A3 TRUE COPY OF THE DEPOSITION OF PW12 IN S.C NO.630/2011 ON THE FILE OF ADDITIONAL SESSIONS COURT NO.III, THALASSERY. ANNEXURE A4 TRUE COPY OF THE DEPOSITION OF PW13 IN S.C NO.630/2011 ON THE FILE OF ADDITIONAL SESSIONS COURT NO III, THALASSERY. ANNEXURE A5 TRUE COPY OF THE PETITION IN CRL M.P NO.3835/2016 ON THE FILE OF ADDITIONAL SESSIONS COURT NO. III, THALASSERY. ANNEXURE P6 TRUE COPY OF THE COUNTER IN CRL M.P NO. 3835/2016 ON THE FILE OF ADDITIONAL SESSIONS COURT NO III, THALASSERY. ANNEXURE A7 TRUE COPY OF THE ORDER IN CRL MP NO.3835/2016 ON THE FILE OF ADDITIONAL SESSIONS COURT NO. III, THALASSERY DATED 24-09-2016.** **RESPONDENT(S)' ANNEXURES: NIL ----------------------------------------------** **/TRUE COPY/** ## **P.S.TO JUDGE** **sts** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No. 6776 of 2016** -----------------------------------------Dated this the 4[th] day of November, 2016 ## **O R D E R** ## **~~~~~~~~** - 1.The petitioner is the accused in S.C.No.630 of 2011 on the file of the Additional Sessions Court-III, Thalassery in which case, he was called upon to answer charge of having committed offence punishable under Sections 447 and 302 of the IPC. - 2.The petitioner denied the charge and the prosecution examined as many as 14 witnesses to bring home the guilt. The incriminating materials arising out of the prosecution case were put to the petitioner and the case was posted for final hearing . - 3.On that day, an application was filed by the petitioner under Section 311 of the Code of Criminal Procedure with a prayer to recall PWs 1, 12 and 13. PW1 is the prime 2 Crl.M.C.6776/2016 occurrence witness, who was cited by the prosecution to prove the circumstances which led to the incident. He did not support the case of the prosecution. He was confronted with his previous statement in writing and the contradiction was marked as Ext.P2, subject to proof. - 4.After the conclusion of trial as aforesaid, Annexure-A5 application was filed under Section 311 of the Code of Criminal Procedure with a prayer to recall PWs 1, 12 and 13 and to permit the defense to cross examine them. PW 12 is the officer who recorded the First Information Statement and PW 13 is the investigating officer . - 5.The said application was dismissed by the Court below by Annexure-A6 order, which is under challenge . - 6.Heard the learned Counsel appearing for the petitioner and the learned Public Prosecutor. Crl.M.C.6776/2016 3 7.The learned Counsel appearing for the petitioner drew the attention of this Court to Annexure-A1 First Information Statement and Annexure-A2, the evidence of PW1, and contended that PW1 was not cross examined with respect to certain aspects and the recalling of the said witness was essential for arriving at a just decision. Elaborating further, the learned Counsel urged that in the First Information Statement, the witness had stated that there was an exchange of words between the accused and the deceased prior to the incident and thereafter, in a fit of rage, the accused had stabbed the deceased. These aspects are to be brought in evidence, according to the learned counsel, to bring home the fact that the accused had stabbed the deceased in exercise of his private defense and that he had acted on grave and sudden provocation. The learned counsel also relies on the judgments of the Apex Court in **Mannan S.K. and Others** Crl.M.C.6776/2016 4 - **v. State of West Bengal and Another** [AIR 2014 SC 2950] and **Natasha Singh v. CBI (State)** [2013 (5) SCC 741] to buttress his submission. - 8.The learned Public Prosecutor refuted the submissions and contended that there was no reason to interfere with the considered order of the Court below and the attempt is only to protract the trial. According to the learned Public Prosecutor, no purpose will be served by recalling PW 1, a witness who had turned hostile to the prosecution version. - 9.After having considered the rival submissions and after going through the materials on record, I am of the considered view that the Court below have rightfully dismissed the petition for recall. - 10.There cannot be any dispute that the scope and object of - Section 311 of the Code is to enable the Court to determine the truth and to render a just decision after 5 Crl.M.C.6776/2016 discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 of Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. 11.It is settled law that the First Information statement is 6 Crl.M.C.6776/2016 not substantive evidence. It can be used only to contradict the maker thereof or for corroborating the statement of the maker under Section 157 of the Indian Evidence Act. It is also settled that the contradicted portions of the First Information Statement do not constitute 'evidence', as stated in Section 3 of the Evidence Act. The Court cannot treat contradicted portions of First Information Statement as 'evidence', to enter any finding in respect of any of the 'facts' referred to therein. In other words the contradicted portions of the First Information Statement may only constitute former statement of the first informant and such contradicted portions of First Information Statement may be used to impeach the credit of the first informant, as stated in Section 155 of the Evidence Act. 12.PW1, who was cited to prove the incident turned adverse to the prosecution at the time of tendering evidence and 7 Crl.M.C.6776/2016 he deposed that he had reached the scene much after the incident. He had no occasion to see the altercation between the deceased and the accused or the act of stabbing by the accused according to him. Thus his evidence did not favour the prosecution. His credit was impeached and the Court below permitted the prosecution to put questions to him which might be put in cross examination by the adverse party. One fails to understand as to why the said witness is required to be summoned to bring out aspects of the prosecution case which was denied by the witness and those portions were confronted and marked as Exhibit P2. It can only be a futile or rather an improper exercise to recall the witness . 13.As held in **Mannan S.K.** (supra) Section 311 of the Code empowers the Court at any stage of any inquiry, trial or other proceedings under the Code to summon any person Crl.M.C.6776/2016 8 as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the Court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The Court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide, it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the Courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. Crl.M.C.6776/2016 9 The Court below has rightly held that the recall and re–examination of PW1, 12 and 13 are not essential to arrive at a just decision of the case. I do not find any reason to interfere with the considered finding of the learned Sessions Judge. This petition fails and is dismissed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps