Nihar, Nissamudheen @ Nissam, Faisal, Junaid, Younus, Abdul Rahim and Abdul Rasheed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** **Crl.MC.No.4992 of 2019** **AGAINST THE ORDER DATED 26-06-2019 IN CRL.M.P.NO.304 of 2019 IN SC NO.816/2015 ON THE FILE OF THE ASSISTANT SESSIONS JUDGE, CHAVAKKAD** ## **PETITIONERS/RESPONDENTS/ACCUSED:** - **1 NIHAR, AGED 46 YEARS, S/O.ABDULLA, PUTHENPURAYIL HOUSE, THRIVENI DESOM, THALIKKULAM, THRISSUR-680569.** - **2 NISSAMUDHEEN @ NISSAM, AGED 42 YEARS, S/O.ABDULLA, PUTHENPURAYIL HOUSE, THRIVENI DESOM, THALIKKULAM, THRISSUR-680569.** - **3 FAISAL, AGED 27 YEARS, S/O.BEERAN, POKKAKKILLATH HOUSE, THAMBANKADAVU DESOM, THALIKKULAM, THRISSUR-680569.** - **4 JUNAID, AGED 32 YEARS, S/O.MUHAMMED, PANIKKAVEETIL HOUSE, VATANAPILLY BEACH, B.S.ROAD DESOM, VATANAPILLY VILLAGE, THRISSUR-680614.** - **5 YOUNUS, AGED 36 YEARS, S/O.SAYED MUHAMMED, KARUTHAVEETTIL HOUSE, EDASSERY DESOM, THALIKKULAM VILLAGE, THRISSUR-680569.** - **6 ABDUL RAHIM, AGED 24 YEARS, S/O.HASSAN, PUTHENPURAYIL HOUSE, THAMBANKADAVU DESOM, THALIKKULAM, THRISSUR-680569.** - **7 ABDUL RASHEED, AGED 22 YEARS, S/O.HASSAN, PUTHENPURAYIL HOUSE, THAMBANKADAVU DESOM, THALIKKULAM, THRISSUR -680569.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.AJEESH K.SASI SRI.M.REVIKRISHNAN SRI.P.M.RAFIQ** Crl.MC.No.4992 of 2019 ..2.. **SMT.POOJA PANKAJ SRUTHY N. BHAT SRI.V.C.SARATH SRI.VIPIN NARAYAN** ## **RESPONDENT/PETITIONER/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI. AJITH MURALI PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.4992 of 2019 ..3.. ## **ORDER** The petitioners herein are the accused in SC No. 816 of 2015 on the file of the Assistant Sessions Court, Chavakkad, wherein they are being tried for having committed offence punishable under section 307 of the IPC. After closure of evidence, the prosecution filed a petition under Section 311 of the Cr.P.C. seeking to summon three doctors, who had treated the victim at the Aswini Hospital and at the Daya Hospital. The learned Sessions Judge partly allowed the application and the witnesses cited as 1 and 2 in the additional witness schedule were ordered to be summoned. The said order is under challenge in this petition filed under Section 482 of the Cr.P.C. 2. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. 3. The learned counsel appearing for the petitioners submitted that the Chief Medical Officers of the hospitals were examined and the medical records were marked through the said witnesses. However, when those medical officers were cross-examined, they went back on their previous version and asserted that they had neither seen nor had examined the victim. According to the learned counsel, the medical records would not reveal that the doctors, who are sought to be summoned, had any occasion to treat the victim. The filing of the petition under Section 311 of the Cr.P.C. is nothing, but a farce and an attempt to fill up the lacuna in the prosecution version, submits Crl.MC.No.4992 of 2019 ..4.. the learned counsel. He would refer to the deposition of the witnesses and it was persuasively argued that it is apparent that the medical records which have been produced by the prosecution before the court below are forged. Relying on the decision of the Apex Court in **Ratanlal v. Prahlad Jat and Others** [(2017) 9 SCC 340], it was argued that the power under Section 311 of the Code can be exercised only for strong and valid reasons and such a contingency did not arise in the instant case. Specifically pointing to the application filed by the prosecution in the instant case, it was submitted that no reasons whatsoever have been stated therein to persuade the court below to exercise the power. It is also urged that the power under Section 311 of the Code should not be permitted to be exercised to fill up the lacuna in the prosecution case. 4. The learned Public Prosecutor, countering the submissions of the petitioners, submitted that the witnesses, who were cited by the prosecution, were the Chief Medical Officers of the hospitals and they admitted before Court that they were cited in that capacity and had not examined the victim. It is further submitted that the learned Sessions Judge had applied his mind and it was after considering all facts and circumstances that the Court had ordered the summoning of two medical witnesses and rejected the prayer of the prosecution insofar as the 3[rd] witness is concerned. Crl.MC.No.4992 of 2019 **==> picture [31 x 7] intentionally omitted <==** 5. I have considered the submissions advanced and have meticulously scrutinized the records made available. 6. Section 311 of the Code of Criminal Procedure enables the trial court to summon material witness, or examine person present. It says that 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. Further the provision mandates 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. 7. A conspicuous reading of Section 311 of the Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. It is, therefore, imperative that the invocation of Section 311 of the Crl.MC.No.4992 of 2019 ..6.. Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case (See **Rajaram Prasad Yadav v. State of Bihar and Another** AIR 2013 SC 3081). 8. In the case on hand, it is apparent that the prosecution had cited the Chief Medical Officers of the hospitals, where the victim was treated, to tender evidence. The said witnesses appeared before Court and stated in unequivocal terms during cross-examination that they had no occasion to examine the victim. It was in the said circumstances that the prosecution had to approach the court and seek to recall the doctors, who had treated the patient based on the entries in the medical records. The learned Sessions Judge meticulously went through the records and came to the conclusion that there are no materials to show that Dr.Nithin, who was cited as witness No.3 in the schedule, had occasion to treat the victim at the Daya Hospital. The prayer to summon him was rejected and the rest of the witnesses were ordered to be summoned. 9. I am not impressed with the contention of the learned counsel that the attempt of the prosecution was to fill up the lacuna. The principle is well settled that the exercise of power under Section 311 of the Cr.P.C should be resorted to with the object of finding out the truth or obtaining proper proof of such facts which could lead to a just and correct decision of the case. Crl.MC.No.4992 of 2019 **==> picture [31 x 7] intentionally omitted <==** Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling up a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. [See **U.T. of Dadra and Nagar Haveli and Anr. v. Fatehsinh Mohansinh Chauhan –** (2006) 7 SCC 529]. 10. As held by the Apex Court in **Mannan S. K. v. State of West Bengal** (AIR 2014 Sc 2950), the aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. The court will have to 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, its exercise has to be done with circumspection. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine. 11. In the facts and circumstances and having considered the submissions advanced by both sides, I am of the view that the order passed Crl.MC.No.4992 of 2019 **==> picture [31 x 7] intentionally omitted <==** by the learned Sessions Judge cannot be found fault with on any of the grounds canvassed by the petitioners. In that view of the matter, I do not find any reason to interfere with the impugned order. This petition will stand dismissed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** Bka/ Crl.MC.No.4992 of 2019 ..9.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF THE APPLICATION FILED BY THE PROSECUTION DATED 29.3.2019.** **ANNEXURE B TRUE COPY OF THE OBJECTION DATED 2.4.2019 PREFERRED BY THE ACCUSED/PETITIONER TO ANNEXURE A.** **ANNEXURE C TRUE COPY OF THE ORDER DATED 26.6.2019 IN CRL.M.P.NO.304/2019 OF THE COURT OF THE ASSISTANT SESSIONS JUDGE, CHAVAKKAD.** **ANNEXURE D THE DEPOSITION OF PW14 RECORDED BY THE COURT OF THE ASSISTANT SESSIONS JUDGE, CHAVAKKAD.** **ANNEXURE E THE STATEMENT OF CW 18 RECORDED UNDER SECTION 161 CR.P.C. DATED 6.3.2015 FORMING PART OF THE FINAL REPORT.** **ANNEXURE F THE STATEMENT OF CW 19 RECORDED UNDER SECTION 161 CR.P.C. DATED 6.3.2015 FORMING PART OF THE FINAL REPORT.** **ANNEXURE G TRUE COPY OF THE RELEVANT PAGE OF THE CASE SHEET PERTAINING TO THE ALLEGED VICTIM CONTAINING THE ENTRY MAKING MENTION OF THE ACCUSED.**