Biju @ Krishnan and Krishna Naik v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939 Crl.Rev.Pet.No. 2603 of 2005 …......... AGAINST THE ORDER IN CRL.M.P. NO.1392/2005 IN S.C. 430/2000 JUDGMENT IN SC 430/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD ## REVISION PETITIONER(S)/ACCUSED NOS.10 AND 11 - 1 BIJU @ KRISHNAN - S/O.DEVAPPA NAIK, P.O.CHAMAKOCHI,, ADOOR VILLAGE, KASARAGOD DISTRICT. - 2 KRISHNA NAIK, S/O.CHANIYA NAIK, CHAMAKOCHI, ADOOR VILLAGE,, KASARAGOD DISTRICT. BY ADVS.SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN SMT.T.RESHMA SRI.HARISANKAR N UNNI SMT.S.SIKKY ## RESPONDENT(S)/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SREEJA.V. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ma ## **P.UBAID, J. ~~~~~~~~~~ Crl.R.P No.2603 of 2005 ~~~~~~~~~~~ Dated this the 20[th] February, 2018** ## **O R D E R** The revision petitioners herein are the two accused added as accused Nos.10 and 11 under Section 319 Cr.P.C in SC.430 of 2000 of the Court of Session, Kasaragod. The Police submitted final report against nine accused under Sections 143, 184, 448, 353, 506 (2) and 307 IPC read with Section 149 IPC. The prosecution case is that in prosecution of the common object of the unlawful assembly formed by the nine accused to do away with one Jose, they attacked him on the public road in front of a medical shop at about 8.00 p.m on 19.12.1998, and inflicted very serious injuries on his body with weapons like sword, in an attempt of his life. The Police registered the crime on the basis of the First Information Statement given by the proprietor of the said medical shop. **Crl.R.P No.2603 of 2005** **2** 2. All the nine accused appeared before the learned Additional Sessions Judge (Adhoc-I), Kasaragod and pleaded not guilty to the charge framed against them. Pending the trial process, the 4[th] accused died. After the examination of PW1 and PW2, the learned trial Judge proceeded to examine the first informant. He was examined as PW3. His evidence is against four persons including the accused Nos.1 and 4 arraigned in the final report. He categorically stated during examination-in-chief itself that the brother of the 2[nd] accused, and also another person by name Biju had also assaulted the victim and inflicted serious injuries on his body. The witness affirmed that the other accused Nos.1, 3 and 5 to 9 had no role or involvement in the attack made on the victim in an attempt on his life. At that juncture, the learned trial judge deferred the cross examination of PW3 and proceeded to examine the other material witnesses to find out whether the others would in any manner support PW3. **Crl.R.P No.2603 of 2005** **3** The victim was examined as PW4, and the other material witnesses were examined as PW5 to PW8. Exhibits P1 to P3 were also proved during trial, and the MO1 to MO6 properties were identified. Finding that all the witnesses are consistent regarding the involvement of two persons besides the nine accused in the final report, the learned Public Prosecutor filed an application as Crl.M.P.No. 1392/2005 under Section 319 Cr.P.C, to add the said two persons as additional accused. After hearing both sides, the learned trial Judge allowed the said application by order dated 21.06.2005, and accordingly added the revision petitioners as additional accused Nos. 10 and 11 in the case. The said order is under challenge in this revision. 3. The learned counsel for the revision petitioners submitted that the trial court should have waited for the cross-examination of all the material witnesses to decide whether there is any material or necessity to add additional accused, or to bring these **Crl.R.P No.2603 of 2005** **4** two revision petitioners as additional accused under Section 319 Cr.P.C. The learned counsel submitted that it was wrong on the part of the trial court to defer the cross- examination of all the witnesses and take decision under Section 319 Cr.P.C., simply on the basis of the evidence given by them on examination-in-chief. 4. The revision petitioners are the two persons against whom all the material witnesses including the victim and the first informant gave evidence on examination-in-chief. It is pertinent to note that these witnesses have not stated anything against the accused Nos.1, 3 and 5 to 9. Their evidence is definite and consistent against the original accused Nos.2 and 4 and also against these two revision petitioners. 5. The First Information Statement given by PW3 implicates nine persons. The F.I Statement does not contain any allegation as against these two revision petitioners. To the surprise of the prosecution, the first informant and also the victim of offence gave evidence **Crl.R.P No.2603 of 2005** **5** in court only against two of the accused in the final report, and against two other persons. Those two other persons are the revision petitioners herein. 6. PW4 is the victim of offence. PW3 cannot have any interest and the other witnesses examined as PW7 and PW8 also cannot have any sort of interest in the prosecution case. PW7 is the Sub Inspector and PW8 is a Police Constable. They came to the spot of incident on hearing the cry and alarm made by the victim. Their evidence is that when they reached the scene, they saw the victim being assaulted by four persons. These witnesses are definite and consistent that there were only four persons in the gang that attacked the victim of offence. 7. Though PW3 gave F.I statement against nine persons, he implicated only the original accused Nos.2 and 4, and besides them, he implicated two other persons also. They are not mentioned or named in the F.I statement given by him. Finding something **Crl.R.P No.2603 of 2005** **6** suspicious, it appears, the learned trial judge deferred his cross examination and proceeded to examine the other material witnesses also. That is how PW4 to PW8 happened to be examined-in-chief only. The learned trial Judge deferred the cross-examination of all the material witnesses, in view of the consistent versions given by them against two other persons than the nine accused in the final report. It is pertinent to note that, none of the material witnesses was declared hostile by the prosecution, and it appears that the prosecution also would practically accept the versions of the material witnesses that only four persons had inflicted injuries on the body of PW4. 8. On a perusal of the depositions of PW3 to PW8 ( examination-in-chief), I find that all the material witnesses are consistent that these two revision petitioners had inflicted serious injuries on the body of PW4 with weapons. Just because, their name is not there in the F.I Statement, the judicial decision taken by **Crl.R.P No.2603 of 2005** **7** the trial court under Section 319 Cr.P.C to add them as accused cannot be set aside, when the evidence adduced before the court by all the material witnesses during examination-in-chief consistently implicate the two additional accused. 9. In _**Hardeep Sing** v._ _**State of Punjab and others**_ , _[AIR 2014 SC 1400]_ , a larger Bench of the Hon'ble Supreme Court held that to invoke the powers under Section 319 Cr.P.C and to add more accused on the basis of the materials produced before the court, the trial court need not wait till the cross-examination of the material witnesses is over. Such an issue was raised before the Hon'ble Supreme Court, that it would not be proper and legal to act under Section 319 Cr.P.C simply on the basis of the evidence given by witnesses on examination- in-chief. There is an identical situation here. In paragraph 82 of the said judgment, the Hon'ble Supreme Court held that once examinationin-chief is conducted, the statement becomes part of **Crl.R.P No.2603 of 2005** **8** the records. However, it is rebuttable on cross examination. Answering, the objection raised, that the court will have to wait till the cross-examination of the witnesses is over, the Hon'ble Supreme Court held thus in paragraphs 83 and 84. “83. As held in Mohd Shafi (AIR 2007 SC 1899) and Harbhajan Singh & Anr v. State of Punjab & Anr (2009) 13 SCC 608], all that is required for the exercise of the power under Section 319 Cr.P.C, is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straight jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion, and if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-in-Chief, it can exercise the power under Section 319 Cr.P.C, and can proceed against such other person (s). It is essential to note that the Section also uses the words ' such person could be tried' instead of should be tried. Hence what is required is not to have a mini-trial at this stage by having examination and crossexamination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of **Crl.R.P No.2603 of 2005** **9** Section 319 Cr.P.C, the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination in chief untested by cross-examination, undoubtedly in itself, is an evidence. 84. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 Cr.P.C, the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness (s) prior to passing of an order under Section 319 Cr.P.C as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence,unless the witness(s) is obliterating the role of persons already facing trial. Moreso, Section 299 Cr.P.C enables the court to record evidence in absence of the accused in the circumstances mentioned therein”. 10. Section 319 Cr.P.C provides that, where it appears to the court in the course of any inquiry or trial **Crl.R.P No.2603 of 2005** **10** that any person, not being the accused before the court, has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed, from the evidence produced before the court. The section does not contain any restriction regarding the stage at which the powers under Section 319 Cr.P.C can be invoked by the court. The only condition is that it ' **must appear'** to the court from the materials and evidence produced before the court at that particular stage that any other person has committed the offence along with the accused facing trial before the court. This is explained by the Hon'ble Supreme Court in the larger Bench decision, and the Hon'ble Supreme Court held that even before completing or proceeding for the crossexamination of the witnesses, the trial court can act under Section 319 Cr.P.C and invoke the powers, if there are sufficient materials in the deposition given by **Crl.R.P No.2603 of 2005** **11** the witnesses on examination-in-chief, to implicate any other person than the accused facing trial before the court. 11. On a perusal of the evidence given by PW3 to PW8 in this case on examination-in-chief, I find, subject to the result of the cross examination during trial and the possibility of rebuttal, if any, during crossexamination, that there are sufficient materials to add the revision petitioners as additional accused, as the persons who allegedly inflicted serious injuries on the body of the victim, with weapons, in an attempt on his life. It is true that all the material witnesses have deviated from their earlier statements. Whether, it was a deliberate or intentional deviation, or only a genuine deviation, disowning the earlier statements given to the Police, or whether the statements of the witnesses were rightly and truly recorded by the Police are all matters for decision during trial. This is not a case where the victim alone implicated the revision **Crl.R.P No.2603 of 2005** **12** petitioners. All the material witnesses including the Police Officers who came at the scene are consistent that only four persons had inflicted injuries on the body of the victim. Of the said four, two are the accused Nos.2 and 4, and the other two are the two revision petitioners. I find no reason for interference in the orders passed by the trial court under Section 319 Cr.P.C. 12. This is not a case where, the material witnesses implicated two persons besides the nine accused in the final report. None of the material witnesses has given any evidence or statement against the accused Nos.1,3 and 5 to 9. It is here the acceptability and genuineness of the evidence given by the material witnesses as against the revision petitioners assumes importance. Let the things be decided by the trial court. I am well satisfied that the trial court proceeded and acted under Section 319 Cr.P.C only because it appeared to the trial court from **Crl.R.P No.2603 of 2005** **13** the evidence given by the material witnesses including the injured and the first informant that these two revision petitioners had also prominent role and complicity in the act of infliction of injuries on the body of the victim. I find that the court below rightly decided to add these two revision petitioners as accused under Section 319 Cr.P.C. In the result, this revision petition is dismissed. The court below will have to proceed for the cross examination of PW1 to PW8 and also the examination of the remaining witnesses as part of trial, without any delay. Sd/- **P.UBAID JUDGE** ma