State of Kerala v. Soni Varghese @ Soniappan; Jaismon Jacob @ Alotty; Vijilesh @ Majanu; K.V. Aneesh

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **CRL.MC NO. 8638 OF 2019** [Against the order dated 23rd November, 2019 of the Additional Sessions Court-V, Kottayam in Crl.M.P.No.2775/2019 in S.C.No.403/2013] ## **PETITIONER/PETITIONER:** STATE OF KERALA REP. BY INSPECTOR OF POLICE, KOTTAYAM WEST POLICE STATION BY PUBLIC PROSECUTOR SRI.VIPIN NARAYANAN ## **RESPONDENTS/COUNTER PETITIONERS 1 TO 4:** 1 SONI VARGHESE @ SONIAPPAN AGED 33 YEARS S/O.VARGHESE JOHN, ILLICHUVATTIL HOUSE, KUMARANALLOOR BHAGOM, PERUMBAIKKATTUSSERI KARA, PERUMBAIKKADU VILLAGE686016 2 JAISMON JACOB @ ALOTTY AGED 20 YEARS S/O.SUNNY JACOB, KOPRAYIL HOUSE, NEAR KOLETTU TEMPLE, ARPOOKARA KARA, ARPOOKARA VILLAGE-686008 3 VIJILESH @ MAJANU AGED 29 YEARS S/O.VIJAYAN, VADAKKE VEEDU, NEAR ST.THOMAS HIGH SCHOOL, KALLARA SOUTH KARA, KALLARA VILLAGE-686611 4 K.V.ANEESH AGED 27 YEARS S/O.T.V.KANNAN, KUNNUVALAPPIL HOUSE,NEAR PANCHAYATH STADIUM, PADIYOOR KARA, PADIYOOR VILLAGE, SREEKANDAPURAM TALUK, KANNOR-670703 BY ADVS. SRI.NANDAGOPAL S.KURUP ## Crl.M.C.No.8638 OF 2019 :-2-: THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.8638 OF 2019 :-3-: ## **O R D E R** Aggrieved by Annexure-D order dated 23rd November, 2019 of the Additional Sessions Court-V, Kottayam in Crl.M.P.No.2775/2019 in S.C.No.403/2013, the State has moved this Crl.M.C. The respondents are the accused in Crime No.1444/2012 of Kottayam West Police Station; on conclusion of investigation, a charge sheet has been laid against the respondents alleging offences under Sections 120B,449,341,323,302 read with 34 IPC. Altogether there are 56 witnesses in the charge sheet. The trial is at the fag end. PWs.1 to 39 have already been examined. The case related to the death of one Gopinathan Nair. There is no eye witness to the incident. At the final stage of the proceedings, the prosecution wanted to file an additional witness list and to examine one Selvan @ Selvamuthu as additional witness and on that basis, before the Investigating Officer mounted the box, an application under Section 311 Cr.P.C. was moved, which was opposed by the defence. By the impugned order, the learned Crl.M.C.No.8638 OF 2019 :-4-: Additional Sessions Judge dismissed the application. Aggrieved by the same, the State has moved this M.C. under Section 482 of the Cr.P.C. 2. I heard the learned Senior Public Prosecutor and the learned counsel for the second respondent. Notice has been served on other respondents as well. 3. According to the learned counsel for the second respondent, the defence is not aware of such a witness; it is not known whether such a witness was interrogated during the course of investigation; even at the time when the application under Section 311 Cr.P.C. was moved, previous statement of the witness recorded under Section 161 Cr.P.C. was not supplied to the respondents. More over, according to him, even though the final report was laid as early as on 25.4.2013 and the charge was framed by the Court on 13.2.2016, the defence was not told about such a witness. He also highlighted various dates which are important. According to him, witnesses were summoned on 10.6.2019 and the ## Crl.M.C.No.8638 OF 2019 :-5-: case stood scheduled from 1.10.2019 to 24.10.2019. After examination of PWs.1 to 39, the Investigating Officer was slated to be examined on 24.10.2019, on that date, he did not turn up and the application under Section 311 Cr.P.C. was moved on 31.10.2019, which according to him, is the result of a clear afterthought. 4. According to the learned Senior Public Prosecutor, it is true that the name of the said witness Selvan @ Selvamuthu is not in the list of witnesses attached to the final report nor his case diary statement was supplied to the defence. But when the application under Section 311 Cr.P.C. was heard by the trial court, the case diary was before court, which aspect has been disputed by the learned counsel for the second respondent. It may be true that at the time of trial, the case diary was made available to the Public Prosecutor, but that does not mean that statement of the said witness whom the prosecution wanted to cite and summon as additional witness was made available before court or to the Crl.M.C.No.8638 OF 2019 :-6-: defence. Whatever it may be, today when the case was heard, the learned Senior Public Prosecutor has made available the case diary and also invited my pointed attention to the statement of the said witness Selvan @ Selvamuthu recorded by the investigating officer on 13.12.2012. 5. The learned counsel for the second respondent submitted that the attempt of the prosecution is to fill up the lacuna in the prosecution case, that the learned Additional Sessions Judge has dismissed the application for valid reasons. 6. I have no doubt that the learned Additional Sessions Judge has considered the governing principles on the subject while dismissing the application. All the same, this Court weigh with two aspects while considering the question. It is a case of heinous homicide committed at a lodge and the prosecution is relying on circumstantial evidence alone to prove the culpability of the accused. That means, every small piece of material may be important on the point of view of the prosecution. Therefore, to Crl.M.C.No.8638 OF 2019 :-7-: find out the truth, the prosecution must be allowed to place before Court all materials. Secondly, Section 311 Cr.P.C. confers very wide powers and discretion on the Court to recall and re-examine witnesses. Here, if an additional witness, who is very important in the point of view of the prosecution is examined, no prejudice will be caused to the defence as he will be made available for crossexamination by the defence counsel for rebutting the statement, if any, given by the witness. After going through the statement of the said witness recorded under Section 161 Cr.P.C., I am not convinced that, that statement is going to tilt the balance. Whatever it be, when we talk about fair trial, fairness should be shown to the prosecution as well. 7. More over, as held by the Honourable Supreme Court in v. **Rajendra Prasad Narcotic Cell Through its Officer in Charge, Delhi** [(1999)6 SCC 110], a lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant ## Crl.M.C.No.8638 OF 2019 :-8-: materials or in eliciting relevant answers from witnesses. The adage " _to err is human_ " is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. The Court has further observed as follows:- " _8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better._ " 8. As adverted to earlier, I have come across the previous statement of said witness. If the prosecution thinks that evidence tendered by such a witness would be necessary to prove the ## Crl.M.C.No.8638 OF 2019 :-9-: allegations, in my opinion, the Court should not stand on the way. At the same time, before moving such an application or simultaneously therewith, the previous statement of the witness should have been made available to the defence so long as it is claimed that his previous statement was recorded under Section 161 of the Cr.P.C. 9. The trial of the case stands stalled from 5.12.2019 onwards. That means, for over 2½ years, the trial stands stayed which had reached at the final stage. A trial of a serious case cannot be allowed to be stayed for such a long period. 10. In the light of the above, the prosecution can be allowed to re-agitate the question. For the purpose, Annexure-D order shall stand set aside and the learned Additional Sessions Judge is directed to consider the application filed under Section 311 Cr.P.C. after giving one more opportunity to the prosecution to take up the issue after serving copy of the statement recorded under Section 161 Cr.P.C. The petition shall be considered afresh and Crl.M.C.No.8638 OF 2019 **==> picture [28 x 9] intentionally omitted <==** disposed of the above at the earliest, at any rate, within a period of one month from the date of receipt of a copy of this order. The application shall be considered again untrammelled by the observations made hereinabove. This Crl.M.C. is disposed of as above. sd/- **K.HARIPAL, Judge** MBS/ Crl.M.C.No.8638 OF 2019 ## :-11-: ## **APPENDIX OF CRL.MC 8638/2019** PETITIONER'S ANNEXURES:ANNEXURE A TRUE COPY OF THE PETITION IN CMP NO.2775/19 FILED BY THE PROSECUTION ON 31.10.2019 ANNEXURE B TRUE COPY OF THE OBJECTION FILED BY THE FIRST, THIRD AND FOURTH ACCUSED DATED 18.11.2019 ANNEXURE C TRUE COPY OF THE OBJECTION FILED BY THE SECOND ACCUSED DATED 18.11.2019 ANNEXURE D CERTIFIED COPY OF THE ORDER DATED 23.11.2019 IN CMP NO.2775/19