P. Gangadharan and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937 Crl.Rev.Pet.No. 2057 of 2006 ( ) -------------------------- AGAINST THE JUDGMENT IN CRA 201/2004 of ADDL.SESSIONS JUDGE (ADHOC-III), KASARAGODE DATED 25-04-2006 AGAINST THE JUDGMENT IN CC 195/1995 of J.M.F.C.-I,HOSDRUG DATED 11-05-2004 ## REVISION PETITIONER(S)/APPELLANT/ACCUSED: --------------------------------------- 1. P.GANGADHARAN, S/O. KUNHAMBU, AGE 45/94, SRUTHILAYAM, MAVUNGAL KANHANGAD. 2. P.NARAYANAN, S/O.AMBU, AGED 25/94, PUTHIYA VALAPPIL HOUSE, KUNNUMMAL, KOTTACHERY. 3. P.VENUGOPALAN @ VENU, - S/O.KUNHIRAMAN, AGED 32/94, PUTHIYAVALAPPIL HOUSE KUNNUMMAL, KANHANGAD. 4. P.RAGHU, S/O.JANARDHANAN, - AGED 24/94, VAYAKKOT HOUSE, MELANKOT KANHANGAD. 5. V.KRISHNAN MASTER, - S/O.V.KARTHAMBU, AGE 57, NELLIKKAT - P.O.BELLA. BY ADVS.SRI.S.RAJEEV SRI.K.G.RENGANATH ## RESPONDENT(S)/COMPLAINANT: ------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ## PUBLIC PROSECUTOR SRI. R. GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **CR** ## **B. SUDHEENDRA KUMAR, J.** ..................................................... ## **Crl.R.P. No. 2057 of 2006** ..................................................... ## **Dated this the 11[th] day of February, 2016** ## **ORDER** The revision petitioners are accused in C.C. No.195 of 1995 on the files of the Court of the Judicial Magistrate of First Class-I, Hosdurg. The courts below convicted the revision petitioners under sections 341 and 323 read with section 34 IPC and sentenced them to simple imprisonment for three months each under section 323 read with section 34 IPC and simple imprisonment for 15 days each under section 341 read with section 34 IPC with a direction that the sentence shall run concurrently. Aggrieved by the said conviction and sentence, this revision petition has been filed. 2. Heard both sides. 3. The prosecution allegation is that on 05.08.1994 at ## -: 2 :- ## Crl.R.P. No. 2057 of 2006 about 10.00 p.m., the accused Nos. 1 to 4, in furtherance of their common object, wrongfully restrained PW2 at Kunnummel junction and thereafter, the 2[nd] accused inflicted injuries on the face of PW2 with a granite stone. Accused Nos.1,3 and 4 beat PW2 with hands. They also kicked him, causing injuries on him. 4. After complying with the legal formalities, charge for the offence under Sections 341 and 323 read with Section 34 IPC was framed against accused Nos. 1 to 4. They pleaded not guilty and claimed to be tried. In the trial, PW1 to PW6 were examined and Exts.P1 to P4 were marked for the prosecution. Ext.D1 was marked for the defence during the cross-examination of PW2. Thereafter, the case stood posted to 04.10.2001 for the examination of revision petitioner Nos.1 to 4 under section 313 of the Code. On that day, the revision petitioner Nos. 1 to 4 were examined under Sec.313 of the Code by the court below. Thereafter, the court below impleaded the 5[th] revision petitioner as the -: 3 :- ## Crl.R.P. No. 2057 of 2006 accused in the case on 28.11.2001 invoking Sec.319 of the Code, on the basis of the evidence given by PW2 and PW3. 5. The 5[th] revision petitioner appeared before the trial court in response to the summons issued from the court. The trial court framed the charge for the offence under Sections 341 and 323 read with Section 34 IPC against the 5[th] revision petitioner on 18.11.2002. The 5[th] revision petitioner pleaded not guilty to the charge and claimed to be tried. Thereafter, PW1 to PW3, PW5 and PW6 were recalled to enable the 5[th] revision petitioner to crossexamine them. PW4 was not recalled stating that there was no request for the same from the 5[th] revision petitioner. After completing the cross-examination, the 5[th] revision petitioner was examined under Sec.313 of the Code. After complying with the legal formalities, the Court posted the case for hearing. After hearing both sides, the court passed the judgment convicting and sentencing the revision petitioners as stated above. Against the said conviction and -: 4 :- Crl.R.P. No. 2057 of 2006 sentence, appeal was filed. The appeal was dismissed as per the judgment in Criminal Appeal No.201 of 2004 dated 25.04.2006 confirming the conviction and sentence passed by the trial court. 6. It has been submitted by the learned counsel for the revision petitioners that after impleading the 5[th] revision petitioner as the 5[th] accused in the case, no de novo trial was conducted as mandated under the provisions of section 319 of the Code. It has been further submitted by the learned counsel for the revision petitioners that the 5[th] revision petitioner was granted opportunity only to crossexamine the witnesses whose evidence was recorded prior to the arraying of the 5[th] revision petitioner as the accused in the case. In the said circumstances, the conviction and sentence passed by the courts below cannot be sustained, submitted by the learned counsel for the revision petitioners. The records would show that the trial court did not record the examination-in-chief of PW1 to PW3, PW5 ## -: 5 :- ## Crl.R.P. No. 2057 of 2006 and PW6 after impleading the 5[th] revision petitioner as the accused in the case. After the impleading of the 5th revision petitioner as accused, PW1 to PW3, PW5 and PW6 were recalled and the 5[th] revision petitioner was permitted to cross-examine them. In this context, it is relevant to understand section 319 of the Code, which reads as follows:- “ **319.Power to proceed against other persons appearing to be guilty of offence** .- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused 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. (2)........................................... (3)............................................ (4) Where the Court proceeds against any person under subsection (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard. (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court -: 6 :- Crl.R.P. No. 2057 of 2006 took cognizance of the offence upon which the inquiry or trial was commenced.” It is clear from section 319 of the Code that the proceedings shall be commenced afresh and the witnesses have to be re-heard, after adding a new person as an accused. 7. The Apex Court in Harinarayan G. Bajaj v. State of Maharashtra and others [(2010) 11 SCC 520] held that even a glance at section 319 of the Code suggests that there is no escape from commencing the proceedings afresh when a person is added as an accused invoking section 319 of the Code. The Apex Court in Shashikant Singh V. Tarkeshwar Singh [AIR 2002 SC 2031] held that the mandate of the law of fresh trial is mandatory if an accused is newly added in a case invoking section319 of the Code. The Apex Court in Sashikanth Singh(Supra) further held that the mandate of law that the newly added accused could be tried together with the accused is only directory. -: 7 :- Crl.R.P. No. 2057 of 2006 8. In this case, the examination-in-chief of PW1 to PW3, PW5 and PW6 was recorded before impleading the 5[th] revision petitioner as an accused. Even though PW1 to PW3, PW5 and PW6 were recalled after the impleading of the 5[th] revision petitioner, the examination-in-chief of the said witnesses was not recorded. After recalling the above witnesses, the trial court permitted the 5[th] revision petitioner to cross-examine them, without examining them in chief. In this context, section 138 of the Evidence Act is relevant, which is extracted thus:- **“138. Order of examinations:-** Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) reexamined”. Section 138 lays down the manner of examining a particular witness and it creates three distinct rights viz; examination-in-chief, cross-examination and re-examination so far as the examination of a witness is concerned. Thus, it is clear that Section 138 envisages that a witness must be ## -: 8 :- ## Crl.R.P. No. 2057 of 2006 first examined-in-chief and then the witness must be offered for cross-examination, and for seeking any clarification, the witness may be re-examined by the prosecution. The Apex Court in Sukhwant v. State of Punjab [1995 KHC 467 = AIR 1995 SC 1601] held that there is no meaning in tendering a witness for cross-examination only and tendering of a witness for cross-examination without examining the witness in chief amounts to giving up of the witness by the prosecution. It is clear from the above discussion that before offering a witness to be crossexamined, the prosecution has to conduct the examinationin-chief of the said witness. The learned Public Prosecutor has submitted that the examination-in-chief of PW1 to PW3, PW5 and PW6 was already recorded by the trial court prior to the impleading of the 5[th] revision petitioner as an accused in the case and in the said circumstances, it cannot be said that the prosecution did not choose to examine the said witnesses in chief. In this context, Section 273 of the ## -: 9 :- Crl.R.P. No. 2057 of 2006 Code assumes significance. Section 273 of the Code provides that except as otherwise expressly provided, all evidence shall be taken in the course of trial or other proceeding in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader. There can be no dispute that the deposition of the witnesses produced on behalf of the prosecution can be recorded in the absence of the accused as provided under section 299 of the Code if the conditions enumerated in the first part of the said section are satisfied. The first part of section 299 provides two conditions to record the evidence in the absence of the accused, which are (1) proof that the accused has absconded, and (2) there is no immediate prospect of arresting the accused. The Apex Court in Jayendra Vishnu Takkur v. State of Maharashtra and Another (2009 KHC 4688) held that both the conditions in the first part of Section 299 must be read conjunctively and not disjunctively. The above discussion would make it ## -: 10 :- Crl.R.P. No. 2057 of 2006 clear that once a person is impleaded as an accused invoking Section 319 of the Code, the court must not only recall the witnesses already examined but the court must also ensure that the witnesses are examined-in-chief before offering the witnesses for cross-examination by the newly added accused. However, it is not necessary for the Court to recall all the witnesses examined by the Court. The Court needs to recall only relevant and material witnesses. 9. In this case, admittedly, neither of the twin situations is attracted to record the deposition of the above said prosecution witnesses as provided under Section 299 of the Code. Therefore, the examination-in-chief of the above said witnesses recorded by the court below in the absence of the 5[th] revision petitioner cannot be given in evidence against the 5th revision petitioner. Admittedly, no examination-in-chief of the said witnesses was recorded in the presence of the 5th revision petitioner or his pleader. ## -: 11 :- Crl.R.P. No. 2057 of 2006 In the said circumstances, there was no examination-inchief at all, which would amount to giving up of the witnesses by the prosecution. In the said circumstances, the conviction and sentence passed against the 5[th] revision petitioner on the basis of the said evidence cannot be sustained and consequently, that part of the judgment stands set aside. However, having gone through the evidence on record, I do not find any illegality, impropriety or incorrectness in the concurrent finding by the courts below that the revision petitioner Nos. 1 to 4 committed the offence Sections 341 and 323 read with Section 34 IPC. The revision petitioner Nos. 1, 2, 3 and 4 are presently aged 66, 46, 53 and 45 years respectively. There is no previous conviction against the revision petitioner Nos. 1 to 4. It appears that the incident in this case was not a premeditated incident. 10. Considering the facts and circumstances of the case, including the time lag since the offence was ## -: 12 :- ## Crl.R.P. No. 2057 of 2006 committed, I am of the view that the sentence awarded against revision petitioner Nos. 1 to 4 can be modified and reduced to a fine of Rs.1,000/- (Rupees one thousand only) each and in default to simple imprisonment for 10 days each under section 323 IPC and imprisonment till the rising of the court and a fine of Rs.500/- (Rupees five hundred only) each and in default to simple imprisonment for 5 days each under Sec.341 IPC to meet the ends of justice and accordingly I order so. 11. The 5[th] revision petitioner was aged 57 years during the relevant period as per the judgment of the trial court. He is presently aged 79 years. The only allegation against the 5[th ] revision petitioner is that he caught hold of PW2. There is no allegation against the 5[th] revision petitioner that he inflicted any injury on the injured. Taking into consideration of the facts and circumstances of the case, including the age of the 5[th] revision petitioner and the gravity of the offence alleged against him, I am of the ## -: 13 :- ## Crl.R.P. No. 2057 of 2006 view that it is not just, proper and correct to direct the 5[th] revision petitioner to face the ordeal of the trial at this stage after a period of 22 years from the date of the alleged commission of the offence. Therefore, by invoking the powers vested with this Court under Sec. 482 read with Sec. 397 of the Code, it is ordered that the fresh trial of the 5[th] revision petitioner is not warranted at this stage. In the said circumstances, the only course open to this court is to acquit the 5[th] revision petitioner, since there was proper framing of the charge. In the result, this Revision Petition stands allowed in part as above. **Sd/- B. SUDHEENDRA KUMAR, JUDGE.** Nisha/ani/11/2/ ## /true copy/ ## P.S. To Judge