Marakkar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 22[ND ] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944** **CRL.MC NO. 8555 OF 2022** **AGAINST THE ORDER DATED 23.11.2022 IN CRL.M.P.NO.1525/2022 AND CRL.M.P.1526/2022, IN SC NO.265/2018 OF SPECIAL COURT FOR SC/ST(POA)ACT, MANNARKKAD** ## **PETITIONER/ACCUSED NO.2 :** **MARAKKAR AGED 37 YEARS S/O.UNNEN, KILAYIL, MUKKALI, KALLAMALA, PALAKKAD DISTRICT - 678582** **BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. ANILKUMAR C.R.** ## **RESPONDENT/STATE :** **STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO 87/2018 OF AGALI POLICE STATION, PALAKKAD DISTRICT)** **BY SRI.S.U.NAZAR, SPECIAL PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.12.2022, THE COURT ON 22.12.2022 PASSED THE FOLLOWING:** Crl.M.C.No.8555/2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.M.C. No.8555 of 2022_ ================================ _Dated this the 22[nd] day of December, 2022_ ## _**O R D E R**_ This petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C’ for short) by the 2[nd] accused in S.C.No.265/2018 on the file of the Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as `SC/ST (POA) Act' for convenience), Manarcad, to quash common order in Crl.M.P.Nos.1525/2022 and 1526/2022 in the above case dated 23.11.2022. 2. Heard the learned counsel for the petitioner Sri S.Rajeev as well as the learned Senior Public Prosecutor, Sri S.U.Nazar. Crl.M.C.No.8555/2022 3 3. Bereft of unnecessary embellishments, the facts of the case are as under: In S.C.No.265/2018, the prosecution alleges commission of offences under Sections 143, 147, 148, 323, 324, 326, 294(b), 342, 352, 364, 367, 368, 302 r/w 149 of the Indian Penal Code (hereinafter referred to as `IPC' for short) and Section 3(1)(d)(1), 3(2)(v) of the SC/ST Act, by the accused. 4. During the course of trial, the prosecution filed Crl.M.P.No.1525 of 2022 and Crl.M.P.No.1526 of 2022. The prayers were to receive additional witness list, examine them and to tender the phone record details along with their respective CAF and 65B certificates in relation to accused Nos.2, 7, 9, 10, 12, 15 and 16, for the just decision of this case. In these petitions the specific allegation raised by the prosecution is that during the trial of the case, the accused influenced the witnesses by making phone calls to them regularly and the call details of the above accused Crl.M.C.No.8555/2022 4 were produced before the court at the time of hearing the petition filed by the prosecution to cancel their bail. Accordingly, bail was cancelled and this Court also confirmed the said order. According to the prosecution, it is absolutely necessary to receive additional witness list to prove the call details for the just decision of the case. 5. Accused Nos.4, 7 and 15 filed objection contending that there was no legal value for those evidence and the same could not be accepted in evidence. 6. Accused Nos.2 and 5 also filed separate objections raising contentions that, as per Section 135 of the Evidence Act, witnesses produced and examined before the court should be regulated by law and practice for the time being relating to the Code of Criminal Procedure. Further under Section 136 of the Evidence Act, when a party proposes to give evidence of any fact, the Judge had to ask the party proposing to give the evidence, whether it could be a relevant fact and thereafter, if the Judge Crl.M.C.No.8555/2022 5 thinks that the said fact, if proved, would be relevant, then only the court can admit any such evidence. 7. The further contention was that the accused made phone calls to threaten the witnesses is not a relevant fact or a fact in issue to be decided in this case and the documents produced to prosecute the witnesses under Section 340 of Cr.P.C could not have any effect on the matter in issue, i.e, whether the accused herein murdered Madhu and committed the offences alleged against him. 8. While arguing to upset the common order, the learned counsel for the petitioner/2[nd] accused reiterated the contentions in the objection and also it is pointed out that in order to examine a witness by invoking powers under Section 311 of Cr.P.C, then also the court must make a finding that the examination of the witness is absolutely necessary for the just decision of the case. However, no such finding can be gathered from the order impugned. The learned counsel argued further that as per Section 5 of the Evidence Crl.M.C.No.8555/2022 6 Act, _evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others._ But Section 8 deals with motive, preparation and previous or subsequent conduct. According to the learned counsel for the petitioner, the `subsequent conduct' shall be the conduct immediately after the commission of the crime and not after filing of the final report. 9. Referring to the decision of the Apex Court reported in [(2006) 13 SCC 516], _**Gagan Kanojia & anr. v. State of Punjab**_ , it is argued that Section 8 of the Evidence Act, _inter alia_ , speaks about the conduct of an accused and as regards to the conduct of victim, viz. a viz. the person about whom the same was inferred and whose identity was not known, it cannot be in terms of the Evidence Act. 10. Similarly, another decision of the Apex Court reported Crl.M.C.No.8555/2022 7 in [MANU/SC/0235/2013], _**State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari & Ors.**_ is placed to contend the said point. Last portion of paragraph 43 of the above judgment has been relied on, which is extracted hereunder: _“43. xxxx xxxx xxxx xxxx xxxx This would also constitute one of the reasons for accepting the contention advanced before us on behalf of State of Maharashtra. In the background of the object sought to be achieved having been clarified by us, it is apparent, that Sections 35 and 80 would be of no avail to the Accused-Respondents in the facts and circumstances of this case, since we have already concluded hereinabove, that the witnesses at serial Nos.63 to 66 cannot be summoned, as their evidence before the trial Court would not fall within the realm of admissibility with reference to “facts in issue” or “relevant facts”._ 11. Another decision of this Court dealing with Section 8 is also placed to substantiate this contention. Para.63 of the above ## judgment is given emphasis: _“63. Even under Section 8 the conduct is relevant only if it influences or is influenced by any fact in issue or relevant fact. Acts, the proof of which reasonably tends to an inference that_ Crl.M.C.No.8555/2022 8 _they were intended either in preparation of a crime or in its execution; becomes relevant, coupled with other evidence as to the actual commission of the crime. The conduct should be such as to have a direct bearing on the crime, the causation, or should be the natural consequence of that crime, the effect. If there is no independent evidence of the crime, a recovery under Section 27 or a conduct under Section 8 cannot by itself or solely result in a conviction. In the present case we are examining the evidence proffered by the prosecution, of the disclosures and the discoveries or the conduct, only for the purpose of corroboration. If corroboration is available then the evidence of the approver is sufficient to sustain the conviction, if it also qualifies the test of credibility.”_ 12. Per contra, the learned Senior Public Prosecutor argued that the trial court rightly considered the rival contentions and found that illustration (e) to Section 8 would apply to the fact of the case and accordingly, the petitions were allowed. It is submitted by the learned Senior Public Prosecutor that going by the mandate of Section 8 of the Evidence Act, the same is not confined to subsequent conduct immediately after commission of the crime and the same shall extend to before and during trial. The learned Crl.M.C.No.8555/2022 9 counsel has given emphasis to the words in illustration (e) stating that `after the alleged crime' in this regard. 13. In view of the rival contentions, it is apposite to refer Section 8 and illustration (e), and are extracted hereunder: _“8. Motive, preparation and previous or subsequent conduct-- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact._ _The conduct of any part, or of any agent to any part, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto._ _xxxxx xxxx xxxx_ _Illustrations_ _(a) xxxx xxxx xxxx xxxx xxxx xxxx_ **==> picture [288 x 13] intentionally omitted <==** _The facts that, either before or at the time of, or_ Crl.M.C.No.8555/2022 10 _after the alleged crime,_ _**A** provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant._ _xxxx xxxx xxxx”_ 14. The main principle underlying in this section is the significance of motive, preparation, previous or subsequent conduct as relevant evidence in various cases. Indubitably before deliberating commission of a crime the offender must have some motive behind that. To achieve the motive the offender must have taken some preparations. The conduct of the accused before or after the crime is also very relevant as circumstantial evidence. From the circumstantial evidences available before it, the Court can draw inferences and arrive at its conclusion. Therefore this section is very important particularly in those cases where evidence is not clear and direct. Crl.M.C.No.8555/2022 11 15. The second paragraph of section 8 of the Act talks about the significance of conduct. The conduct that this section speaks is different from character. Conduct means the external behaviour of a person, whereas character can be said to be an impression about a person in the minds of others. 16. Though conduct forms importance evidence under the scope of section 8 but again we must remember that other than direct conduct, if seen by witness, will not be of definite bearing over the case. A conduct which is not directly linked to the facts in issue but some or the other way connected to it is as good as circumstantial evidence which will be difficult for the Court to prove. Therefore it is imperative that the Court would scrutinize the conduct mainly previous and subsequent very carefully and thoroughly. 17. It is true that in an application filed under Section 311 of Cr.P.C, there should be a definite finding to the effect that it is for Crl.M.C.No.8555/2022 12 the just decision of the case, as argued by the learned counsel for the petitioner relying on [(2013) 5 SCC 741], _**Natasha Singh v. CBI**_ and [2017 (4) KHC 91], _**Vijyadas K.V v. State of Kerala**_ . Thus the power of the Court under Section 311 of Cr.P.C to summon material witness assumes significance. As per Section 311, the power of the Court is discretionary at one part and mandatory on the other part. That is to say, at the first part, any court may at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined. On the second part, the Court is given a wide and mandatory power and the same is to the effect that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Be it so, the court has Crl.M.C.No.8555/2022 13 power to summon and examine any person if his evidence appears to be essential to the just decision of the case. 18. In [(2004) 4 SCC 158 : 2004 SCC (Cri) 999 : 2004 CrLJ 2050 (2065) (SC)], _**Zahira Habibulla H.Sheikh v. State of Gujarat**_ ; it was held that where the evidence of any person appears to be essential to the just decision of the case, it is obligatory on the Court to summon and examine or re-call and re-examine him. 19. The very usage of the words such as `any Court', `at any stage', or `or any enquiry, trial or other proceedings', `any person' and `any such person' clearly spells out that this section is expressed in the widest possible terms and does not limit the discretion of the Court in any way. The second part of the section does not allow for any discretion but it binds and compels the Court to take steps if the fresh evidence to be obtained is essential to the just decision of the case [AIR 1991 SC 1346 : 1991 Supp (1) SCC 271 : 1991 CrLJ 1521, 1524], _**Mohanlal Shamji Soni v.**_ Crl.M.C.No.8555/2022 14 _**Union of India**_ ; [(2004) 4 SCC 158 : 2004 SCC (Cri) 999 : 2004 CrLJ 2050 (2065) (SC), _**Zahir Habibulla H. Sheikh v. State of Gujarat**_ ; [2006 CrLJ 711 (713) : 2006 (1) ALJ 181 (All)], _**Chhotey**_ . _**Badri Prasad v. State of U.P**_ 20. Inasmuch as the argument tendered by the learned counsel for the petitioner positing the fact that the learned Special Judge failed to make a definite finding to the effect that it is for the just decision of the case, the petition could be allowed, it could be read out from the impugned common order that the learned Special Judge observed that the above documents are relevant in this case. If the Court finds that some documents are relevant, the same means the documents are relevant for the just decision of the case. Therefore, the said contention must fail. 21. In the present petition, the prosecution wants to record the telephonic conversation between the accused and the witnesses in this case to prove that the accused herein either prevented or Crl.M.C.No.8555/2022 15 procured the absence of the witnesses or suborned them to give false evidence respecting it. As per Section 8 illustration (e) of the Indian Evidence Act, it is provided that if the accused destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant. 22. Therefore, when the prosecution wants to prove the attempt of the accused to make absence of the witnesses or from suborning them to give false evidence, it has to be held as relevant fact and, therefore, the trial court has rightly allowed the application and the said finding does not require any interference. Therefore, the Crl.M.C stands failed and is accordingly dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ Crl.M.C.No.8555/2022 16 ## **APPENDIX OF CRL.MC 8555/2022** ## **PETITIONER'S ANNEXURES** ## **ANNEX-I** **TRUE COPY OF THE PETITION, CRL.M.P.NO.1525/2022 IN SC NO.265/2018 FOR PRODUCTION OF ADDITIONAL WITNESS LIST SUBMITTED BY THE PROSECUTION, DATED 14-11-2022** ## **ANNEX-II** **A TRUE COPY OF THE PETITION, CRL.M.P.NO.1526/2022 IN SC NO.265/2018, SUBMITTED BY THE PROSECUTION, TO ISSUE SUMMONS TO THE WITNESSES, SUBMITTED BY THE PROSECUTION, DATED 14-11-2022** ## **ANNEX-III** **A COPY OF THE OBJECTION SUBMITTED FOR AND ON BEHALF OF THE PETITIONER, ON 1811-2022** ## **ANNEX-IV** **A COPY OF THE PROCEEDING DATED 23-112022** ## **ANNEX-V** **THE CERTIFIED COPY OF THE COMMON ORDER DATED 23-11-2022 IN CRL.M.P.NO.1525/2022 AND CRL. M.P. NO.1526/2022, IN SC NO.265/2018 PASSED BY THE SPECIAL COURT FOR SC/ST(POA) ACT, MANARCAD**