State of Kerala v. Sanofar and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 CRL.MC NO. 1053 OF 2023** ## **PETITIONER/S:** STATE OF KERALA STATE OF KERALA REPRESENTED BY THE ADDITIONAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **RESPONDENT/S:** 1 SANOFAR AGED 47 YEARS S/O.KOCHU SHIHAB, HOUSE NO.1365, KOLLAM CORPORATION WARD NO.47, KADAPPURAM PURAMBOKE, JONAKAPPURAM, VALIYAKADA CHERRY, KOLLAM WEST VILLAGE -, PIN - 691015 2 DITTU S/O DIKKIBOY, PULLIKKADA PUTHUVAL PURAYIDAM, VADAKKUMBHAGAM CHERRY, KOLLAM EAST VILLAGE, PIN - 691001 3 SHABIN S/OSULAIMANKUNJU, SHA MANZIL, LEKSHMI NAGAR 200 A, NEAR KAMPIYITTAZHIKAM JUNCTION, THEKKEVILA CHERRY, MUNDAKKAL VILLAGE, KOLLAM, PIN - 691010 4 IRSHAD S/O.NIZAR, JRA 72, PUTHENVEEDU, NEAR JONAKAPPURAM VALIIYAPALLI, VALIYAKADA CHERRY, KOLLAM WEST VILLAGE, PIN - 691015 5 AJMAL S/O.ABDUL VAHAB, KALARIPURAYIDAM, HOUSE NO.1282, CORPORATION WARD NO.45, KOTTAMUKKU, KACHERI WARD, KOLLAM WEST VILLAGE, PIN - 691015 6 ALIMON S/O.SALIM LEBBAAZHIKAM PURAYIDAM, JRA 62, Crl.M.C.No. 1053 of 2023 2 JONAKAPPURAM, VALIYAKADA CHERRY, KOLLAM WEST VILLAGE, PIN - 691015 BY ADVS. S.SREEKUMAR (KOLLAM) K.VIJAYAN(K/000868/2015) ## **OTHER PRESENT:** PP SMT.SREEJA V THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No. 1053 of 2023 3 **BECHU KURIAN THOMAS, J. …............................................ Crl.M.C.No. 1053 of 2023** **…............................................................... Dated this the 15[th] day of February, 2023** ## **ORDER** The State has preferred this petition under Section 482 Cr.P.C, challenging Annexure A2 order, rejecting an application under Section 311 of the Code of Criminal Procedure. 2. Respondents are facing an indictment for various offences including that under Section 302 of the Indian Penal Code in S.C.No.805/2017 on the files of the Additional Sessions Court-V, Kollam. Pursuant to the direction of this Court to complete the trial by 31.12.2022, the trial commenced. In the meanwhile, an application was filed by the prosecutor on 29.12.2022 seeking to examine five additional witnesses. The said application was allowed and those witnesses were examined. After completing examination of those five witnesses, the prosecutor filed yet another petition as Crl.M.P.No.73/2023, seeking to examine five more witnesses, including three of them who were already examined as PW1, PW24 and PW32. It is appropriate to mention that another petition as Crl.M.P.74/2023 Crl.M.C.No. 1053 of 2023 4 was also filed by the prosecution seeking to recall and reexamine PW23 also. By the impugned order the learned Sessions Judge dismissed Cr.M.P.No.73/2023 and allowed Cr.M.P.No.74/2023. The State has thus come up in challenge against the order in Crl.M.P.No.73/2023. 3. I have heard the learned Public Prosecutor as well as the learned counsel for the respondents. 4. The limited question that arises for consideration is whether the witnesses sought to be recalled and the new witnesses sought to be examined are essential for a just decision of the case. In this context, it is appropriate to bear in mind that Cr.M.P.No.74/2023 was allowed permitting recalling and examination of PW23 on condition that the evidence shall be completed within two weeks. Thus the trial court itself had permitted to recall one of the witnesses. 5. Specific reasons were stated by the prosecution for examining one Smt.Bency, whose name appears as serial No.1 in the additional witness list. The prosecution contended that when Ext.P60 was marked through PW24 doctor, it was realised that the original records contained the signature of Smt.Bency who was the nurse on the relevant day and therefore, the Crl.M.C.No. 1053 of 2023 5 photocopy of the document initially marked as subject to proof could be proved only if the said Bency is examined. It was also contended that the 2[nd] witness is one Jaicy who was examined as PW21 who was also the night duty nurse on the relevant day. The 3[rd] witness to be examined is one Santha who is the mother of the deceased and it is submitted that her evidence is essential to prove that the deceased had gone to the temple festival (Pooram). The 4[th] witness is PW24 a doctor whose examination according to the prosecution, is required for proving the records relating to the treatment of the deceased. PW32 is the fifth witness sought to be recalled and examined and the only reason stated is that his evidence is required. 6. Section 311 of Cr.P.C provides for the power of the court to summon material witnesses. The provision is very widely worded and confers power upon the court to summon any person as a witness or to recall and re-examine any person already examined. The only condition explicit from Section 311 Cr.P.C is that the evidence of the said person sought to be examined is essential for the just decision of the case. In the decision in _**Swapan Kumar Chatterjee v. Central Bureau of Investigation**_ [(2019) 14 SCC 328] the Supreme Court had held Crl.M.C.No. 1053 of 2023 6 that, “12. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 13. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier is not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.” 7. With the aforesaid principle in mind, when the prosecution case is appreciated, it can be noticed that the documentary evidence of treatment administered to the deceased was sought to be proved by photocopies. Later Crl.M.C.No. 1053 of 2023 7 Ext.P60, the treatment details were marked through PW24. In the said document, one of the signatures was noticed as that of Smt.Bency who was the duty nurse on that day. Since the treatment administered to the petitioner is a relevant to the fact in issue, I am of the view that the examination of the first witness in the witness list in Cr.M.P.No.73/2023 is essential for a just decision of the case. 8. Similarly, specific reasons have been stated in the witness list as regards PW21 and PW24. Whether the evidence sought to be adduced by recalling those witnesses are ultimately beneficial to the prosecution or not is a matter that cannot be decided at this juncture. However, since both those witnesses are persons who could speak to the treatment administered to the deceased, immediately prior to his death, I am of the view that their evidence appears to be essential for a just decision in the case and therefore, they ought to be permitted to be recalled for examination. 9. However, as far as witnesses shown as serial Nos.3 and 5 are concerned, the prosecution themselves are not clear as to the purpose for adducing their evidence or recalling PW32. The 3[rd] witness is the mother of the deceased and the only Crl.M.C.No. 1053 of 2023 8 reason for examining her is mentioned as ''to take her deposition''. Similar is the reason given for recalling PW32. 10. In this context, the argument of the learned counsel for the respondent assumes significance. PW32 has already given evidence and nothing more is required to be elicited from him. Further as far as the mother of the deceased is concerned, the prosecution's contention that she is required to be examined to prove that the deceased had gone to the festival, is a fact already deposed to try PW7 and Pw13 and is part of the evidence through other witnesses. Therefore, her evidence is not at all essential for a just decision. 11. On a consideration of the circumstances pointed out by the learned counsel for the respondents, I am of the view that the prosecution has not made out sufficient cause for recalling PW32 or for examining additional witnesses in the form of the mother of the deceased shown as serial No.3 in the witness list. 12. Before parting with this case, it is necessary to observe that the Supreme Court has time and again deprecated the practice of successive applications being filed by the prosecution to recall and examine the witnesses who were already examined. The successive applications interfere with Crl.M.C.No. 1053 of 2023 9 the concept of continuous trial on a day to day basis and therefore, such a practice ought to be avoided as far as possible. 13. In view of the above discussion, Cr.M.P.No.73/2023 in SC No.805/2017 on the files of the Additional Sessions Court-V, Kollam stands allowed in part by permitting examination of witness No.1 and recalling and examining witness No.2 and 4 in the said application. Having regard to the aforesaid circumstances, I allow this Crl.M.C in part as mentioned above. Needless to mention that the examination of the witnesses permitted by this order shall be carried out as expeditiously as possible at any rate within a period of 30 days from the date of receipt of a copy of this order. **Sd/-** **BECHU KURIAN THOMAS JUDGE** Dxy Crl.M.C.No. 1053 of 2023 10 ## **APPENDIX OF CRL.MC 1053/2023** PETITIONER ANNEXURES Annexure1 THE TRUE COPY OF THE CRLMP NO.73/2023 ALONG WITH THE WITNESS SCHEDULE DATED 12.01.2023 FILED BY THE ADDITIONAL PUBLIC PROSECUTOR BEFORE THE ADDITIONAL SESSIONS COURT -V KOLLAM Annexure2 THE TRUE COPY OF THE ORDER DATED 20.01.2023 IN CRLMP NO.73/2023 IN SC NO.805/2017 OF THE ADDITIONAL SESSION COURT-V KOLLAM