Santosh Kumar v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938** **Crl.MC.No. 6836 of 2016 -------------------------** **SC 1485/2008 OF ADDITIONAL SESSIONS COURT - VII, THIRUVANANTHAPURAM DATED 23-09-2016** **....** **PETITIONER(S)/ACCUSED NO 1: --------------------------** **SANTHOSH KUMAR, AGED 35 YEARS, S/O THANKAPPAN NAIR, ANEESHA HOUSE, VILAYIL MUDUKKU, KOZHIYODE LANE, PALKULANGARA, VANCHIYOOR, THIRUVANANTHAPURAM.** **BY ADVS.SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.M.VIVEK SRI.A.RAJESH SRI.B.KRISHNA KUMAR** **RESPONDENT(S)/COMPLAINANT: --------------------------** **STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY SRI.K.V.SOHAN, STATE ATTORNEY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** **Crl.MC.No. 6836 of 2016** **------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURE** **-----------------------** **ANNEXURE A THE CERTIFIED COPY OF THE ORDER IN CRL M.P NO 2714 OF 2016 IN S.C NO 1485 OF 2008 OF THE COURT OF ADDITIONAL SESSIONS JUDGE VII, THIRUVANANTHAPURAM DATED 23-09-2016** **RESPONDENT(S)' ANNEXURE** **-----------------------** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **“C.R.”** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.6836 of 2016 ----------------------------------------Dated this the 26[th] day of October, 2016** ## **O R D E R** - 1.The petitioner is the accused No 1 in S.C. No.1485 of 2008 on the file of the Additional Sessions Court–VII Thriuvanathapuram. - 2.Trial has commenced and as many as 77 witnesses were examined on the side of the prosecution. The incriminating materials were put to the accused under section 313 (1)(b) and the accused were asked to enter upon their defence. An application was thereafter filed for compelling the attendance of 29 persons to prove the defence version. The said application was partly allowed and summons were ordered to be issued to CW1 to CW5 , CW7 , CW 8 and CW 27 in the list. Challenging the refusal to issue summons to the rest of the witnesses, the instant Crl.M.C.6836/2016 2 petition is filed under Section 482 of the Code of Criminal Procedure. - 3.Heard Sri B. Raman Pillai, the learned Senior Counsel Appearing for the Petitioner as well as Sri K.V. Sohan, the learned State Attorney. 4.The learned Senior counsel would at the outset itself submit that a fair trial is the main object of criminal jurisprudence and it includes the grant of a fair and sufficient opportunity to the accused to prove his case as well. Adducing evidence in support of the defense version is a valuable right and the Courts are to ensure that the said right is protected in letter and spirit. Referring to the facts of the instant case, it is submitted that at the time of registration of the FIR and thereafter for quite some time, the case of the investigating agency was that the murder was perpetrated by a group of masked assailants in connection with factional fight between two rival gangs. The news reports which had appeared in various leading Crl.M.C.6836/2016 3 dailies, on the same day and on the next day of the incident, according to the learned Counsel, flashed the news that masked assailants had attacked the deceased by reaching the place of incident in bikes, the registration numbers of which were shielded from public view. The said reports is at variance with the present prosecution case as per the charge. This would reveal that the prosecution had suppressed the genesis and manner of the incident and investigation in the final report before court. When witnesses were cross examined, specific questions were put as to whether a different version had appeared in the newspapers, which they had emphatically denied . According to the witnesses, they were not in the habit of reading newspapers or viewing television channels. It was in the said circumstances that the defence had filed a schedule of witnesses, numbering 28, with the objective of proving the news reports which appeared in the prominent dailies both in vernacular and Crl.M.C.6836/2016 4 English language, published immediately and on the following day of the alleged occurrence. It is also contended by the learned counsel that the photographs of accused numbers 1 to 4 had appeared in some of the dailies after the incident. The said accused were later identified by witnesses during the test identification parade which was held held weeks after the photograph had appeared in the News Papers. According to him, only by examining the reporter and the newspaper editor will the petitioner be able to establish the truth of the contents of the report and the frailty of the prosecution evidence relating to the Test Identification could be brought to the notice of the Court. According to the learned counsel the intention of the defence was to bring to the notice of the Court the case of the prosecution was different at the early stages and that they had shaped a different version later to the prejudice of the accused. 5.Referring to the impugned order, it is submitted that the Crl.M.C.6836/2016 5 learned Sessions Judge has taken the view that the news item without further proof of what had actually happened through witnesses is of no value. Expatiating further on this aspect, it is contended that the attempt of the defence was to prove the news paper reports was in tune with the mode approved by the Apex Court as well as this Court. Strongly attacking the observation of the Court below that that the examination of the witnesses who were sought to be summoned was quite unnecessary to prove the defence, it is contended that it was for the accused to decide as to what should be the nature of evidence and it cannot be left to the discretion of the court. Summing up it is argued that the object of a criminal trial is to enable the court to determine the truth and to render a just decision after discovering the relevant facts. 6.The learned State Attorney has countered the Submissions of the learned Senior Counsel and submitted that the Crl.M.C.6836/2016 6 Managing Editors of the News Papers sitting in far off offices have been cited only for the purpose of delaying the trial. The news paper reports as such has no evidentiary value and will only serve to waste precious time of the Court in a case in which directions have already been issued to expedite the proceedings. Referring to the decision of the Apex Court in **Quamarul Islam V S.K.Kanta and Others** (AIR 1994 SC 1733) it was submitted that Newspaper reports by themselves are not evidence of the contents thereof. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence except as provided under the Indian Evidence Act. It is finally submitted that the only intention of the accused is to delay the trial proceedings which cannot be permitted. - 7.I have considered the rival submissions and have gone through the materials on record. 8. The question of admissibility of news item is no longer res Crl.M.C.6836/2016 7 integra. The Apex Court in **Laxmi Raj Shetty v. State of Tamil Nadu** , (AIR 1988 SC 1274) had occasion to consider the question of admissibility of the news items appearing in a press report in the newspaper and had opined thus:- _"We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in S. 78(2) of the Evidence Act, 1872 which an allegation of fact can be proved. The presumption of genuineness attached u/ S. 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported."_ ## 9.In **Quamarul Islam V S.K.Kanta and Others** (AIR 1994 ## SC 1733), it was observed as follows :- _Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who_ Crl.M.C.6836/2016 8 _heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and Publisher, PW 4 by itself cannot amount to proving the contents of the newspaper reports. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned trial Judge could not treat the newspaper reports as duly 'proved' only by the production, of the copies of the newspaper. The election petitioner also examined Abrar Razi, PW 5, who was the polling agent of the election petitioner and a resident of the locality in support of the correctness of the reports including advertisements and messages as published in the said newspaper. We have carefully perused his testimony and find that his evidence also falls short of proving the contents of the reports of the alleged speeches or the messages and the advertisements, which appeared in different issues of the newspaper. Since, the maker of the report which formed basis of the publications, did not appear in the court to depose about the facts as perceived by him, the facts contained in the published reports were clearly inadmissible._ 10.In view of the above , the contention of the learned State Attorney that the statement of fact contained in a news paper is merely hearsay and therefore, inadmissible in evidence cannot be accepted. In cases where the maker of Crl.M.C.6836/2016 9 the statement appears in Court and deposes that he had perceived the facts reported, the facts contained in the said report can be said to have been proved. When the accused has a specific case that the photographs of the accused No 1 to 4 were splashed in all the news papers days after the incident and the witnesses who had identified them at the time of Test Identification Parade had occasion to see the news papers, whatever be the evidentiary value of the same, the accused ought to have been granted an opportunity to adduce their evidence. However no one can vouch safe for the credibility of the News report. It was observed by a Division Bench of this Court in **Poonthala Aboobacker@ Babu V State of Kerala (** 2012 (1) KLD 383) that a lot of hearsay finds a way into the print or the visual media as supposedly authentic version and it would be unsafe to place reliance on such reports. 11.Credibility of the evidence of newspaper reports apart, the Crl.M.C.6836/2016 10 rejection of the application on the ground that the summoning of defence witnesses will only serve to waste precious time and to delay the proceedings cannot be accepted. Fair trial is the bedrock of criminal jurisprudence and it is the most fundamental duty of the Court to ensure that such fairness is not hampered or curtailed in any manner. The Court should have the interests of the victim, the accused and of the society in mind and under no circumstances can the Court deprive the parties fair and equal opportunities. In a case of instant nature, the accused should not be permitted to later raise clamour and contend that when the prosecution was given a free reign and permitted to summon as many as 77 witnesses, equal opportunity was denied to them. The Apex Court has held that the right to a fair trial is a constitutional as well as a human right. If an accused is not acquitted under S.232 of the Code on the ground of no evidence, it is mandatory that he should be called upon to enter on his Crl.M.C.6836/2016 11 defence and permitted to adduce oral and documentary evidence of his choice. If an application is filed, the Court should not be reluctant to issue process and secure the presence of the witnesses, documents or things. The application of the accused for issue of process for compelling the attendance of any witness or the production of any document or thing cannot be rejected by the court as unnecessary. The discretion of the court to reject such an application under S.233(3) is only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Subject to those restrictions, the accused is having the unfettered right to have any witness, document or thing summoned. In other words, the choice of letting in evidence is on the prisoner and it cannot be regarded as an empty formality. Umpteen are the cases in which the accused have been acquitted on the ground of prejudice which has resulted in denying an opportunity to advance his case. In **Zahira** Crl.M.C.6836/2016 12 ## **Habibulla H Sheikh and Another V State of Gujarat** **and Others** (AIR 2004 SC 3004 ), it was held by the Apex Court that the rules of procedure that have been designed to ensure justice are to be scrupulously followed, and the Court must be zealous in ensuring that there is no breach of the same. 12.What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the Court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (3) of S.233 of the Code was for the purpose of vexation or delay or for defeating the ends of justice. In all other cases, the Judge is expected to issue process. Having regard to the above, I am of the view that the impugned order requires slight modification. 13.The impugned order would reveal that the learned Crl.M.C.6836/2016 13 Sessions Judge had allowed the application in part and had ordered summons to be issued to DW1 to CW 5, DW7, DW 8 and DW 27 in the list. The learned Senior Counsel has submitted that witnesses No 23 to 26 are not required to be summoned. It is also stated that witness No. 15 and 17 is the same person and therefore, witness No. 17 is not required to be summoned. Witness Nos. 9 , 11, 13, 15, 19 and 21 are the Chief Editors / Editors of Prominent dailies and witness Nos. 10 , 12 , 14 , 16 , 18 and 20 are the reporters. It does not appear to me in view of the above precedents of the Apex Court that the Chief Editors are required to be summoned as the report can be proved through the reporter who was responsible for that particular news item. 14.Having considered all the relevant facts, in modification of the order dated 23.9.2016 of the Court below, the learned Sessions Judge is directed to issue Summons to Witness Nos. 10 , 12 , 14 , 16 , 18 and 20 and to proceed Crl.M.C.6836/2016 14 with the trial. The proceedings shall be expedited and the court below shall strive to complete the above proceeding within two weeks from the date of receipt of a copy of the order. This petition is disposed of as above. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps 27/6/2016