# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945**
**CRL.MC NO. 10830 OF 2023**
**CRIME NO.85/2010 OF Pudunagaram Police Station, Palakkad SC 197/2012 OF FIRST ADDITIONAL SESSIONS COURT, PALAKKAD**
## **PETITIONERS :**
**1 VIJAYAN, AGED 49 YEARS, S/O MANI, KIZHAKKETHOTTUPADAM, PERIVEMBU, PIN – 678 531**
**2 KUNJAPPAN, AGED 65 YEARS, S/O GOPALAN, KIZHAKKETHOTTUPADAM, PERIVEMBU, PIN – 678 531**
**3 BABU, AGED 48 YEARS, S/O MUTHU, KIZHAKKETHOTTUPADAM, PERIVEMBU, PIN – 678 531**
**4 MURUKAN, AGED 42 YEARS, S/O MUTHU, KIZHAKKETHOTTUPADAM, PERIVEMBU, PIN – 678 531**
**5 MUTHU, AGED 71 YEARS, S/O VELAN, KIZHAKKETHOTTUPADAM, PERIVEMBU, PIN – 678 531**
- **6 RAMANAN,**
**AGED 44 YEARS, S/O MANI, KIZHAKKETHOTTUPADAM, PERIVEMBU, PIN – 678 531**
- **7 MURALEEDHARAN,**
**AGED 28 YEARS, S/O SUNDARAN, KIZHAKKETHOTTUPADAM, PERIVEMBU, PIN – 678 531**
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**8 RADHAKRISHNAN, AGED 55 YEARS, S/O KITTU, KIZHAKKETHOTTUPADAM, PERIVEMBU, PIN – 678 531**
**BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN**
## **RESPONDENT :**
**STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031**
**BY SRI. M.C. ASHI, PUBLIC PROSECUTOR**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :**
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## **BECHU KURIAN THOMAS, J.**
=-=-=-=-=-=-=-=-=-=-=-=-=-= **Crl.M.C.No.10830 of 2023**
=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 11[th] day of January, 2024**
## **ORDER**
Petitioners challenge an order rejecting their application to recall two witnesses under section 311 of the Code of Criminal Procedure, 1973.
2. Petitioners are the accused in S.C.No.197 of 2012 on the files of the First Additional Sessions Court, Palakkad. Petitioners are facing indictment for various offences including Section 302 of the Indian Penal Code, 1860.
3. The incident that led to the prosecution of the petitioners took place on 18.02.2010 wherein a person by name Rajendran is alleged to have been murdered by the accused. For the last 12 years, the proceedings have been pending before the Sessions Court and the trial has also been completed. However, when the case was posted for hearing, petitioners preferred an application to recall two of the witnesses (PW17 and PW20). According to the petitioners, in one of the documents produced by the defence witnesses as Ext.D9, they came across a sentence by the signatory to that document, who is none other than the mother of the deceased, stating that at a time when the petitioners were under custody, the accused were roaming free. On the basis of the said
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document, a petition under Section 311 Cr.P.C. was filed seeking to recall PW17 and PW20 for re-examination.
4. By the impugned order, the learned Sessions Judge dismissed the application finding that the attempt of the accused is to delay the disposal of the Sessions Case.
5. Sri.S.Rajeev, the learned counsel for the petitioner contended that the document that has now come to the knowledge of the petitioners is very crucial and essential for a just decision of the case. According to the learned counsel, the entire evidence could be completed within a period of two weeks and therefore, no prejudice would be caused to the prosecution. He relied upon the decision in **Varsha Garg v. State of Madhya Pradesh [2022 SCC Online SC 986]** and contended that the intent of the statute ought to be borne in mind while considering an application under Section 311 Cr.P.C. and the power of the court to recall a witness is available even after closure of the evidence. The learned counsel also relied upon the judgment in **Ponnusamy P. v. State of Tamil Nadu** [2022 SCC Online SC 1543] to drive home the point that the delay in concluding the trial is not a reason to deny the accused the right to fair trial.
6. Sri.Ashi M.C., the learned Public Prosecutor opposed the application and submitted that every opportunity was granted by the learned Sessions Judge to the petitioners to adduce all their evidence and even one of the witnesses (PW21) was recalled and re-examined. It is
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also pointed out that the evidence now sought to be adduced have no bearing at all and further that the said document and its contents was already known to the petitioners and it was brought out by them during the cross examination of the witnesses. Further, even when the prosecution witnesses were examined, questions were asked, with respect to the writ petition filed by the mother of the deceased.
7. I have considered the rival contentions.
8. The provisions of Section 311 confer power upon the court to recall and re-examine any witness which it deems to be necessary. The provision uses the terms 'may' and 'shall'. The discretion to recall and re-examine a witness is vested with the court. However, if the court finds the evidence of a witness essential and just, it shall recall and re-examine the witness.
9. Though there is no restriction on the power under Section 311 of Cr.P.C as observed in **Varsha Garg’s case** (supra), the power ought to be exercised whenever the evidence is essential for a just decision of the case. Essentiality of an evidence depends on the facts and circumstances of each case and the nature of evidence sought to be adduced.
10. In the instant case, the learned Sessions Judge has elaborately considered the nature of evidence that is sought to be brought in by the petitioners by recalling PW17 and PW20. The learned Sessions Judge further referred to the lengthy examination of the prosecution witnesses especially PW17 and PW20 and also noticed that those witnesses were
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even confronted, during cross examination, with the filing of W.P.(C) No.10322 of 2010, indicating that petitioners were aware, at that time itself, about the document which was part of the said writ petition, now sought to be put to the witnesses. It is further noticed by the learned Sessions Judge that the aforementioned writ petition had even been marked in evidence by the defence while examining the defence witnesses. Thus, it was concluded that the document was in the custody of the accused themselves even while the trial was going on. Further, the learned Sessions Judge found that sufficient opportunity was granted for the defence evidence and even one of the witnesses (PW21) was recalled and re-examined, which is indicative of sufficient opportunity granted to the accused to conduct the case properly and in a fair manner. The reasons given by the learned Sessions Judge are weighty and does not call for any interference.
11. Apart from the above, petitioners have not been able to convince this Court as to the essentiality of the evidence sought to be adduced. The document referred to by the petitioners is part of the exhibits produced in the writ petition W.P(C) 10322 of 2010 which has already been marked in evidence as Ext.D9. Questions about the writ petition have already been put to the prosecution witnesses as well. In such circumstances, this Court is not convinced of the need to recall and re-examine PW17 and PW20 in SC No. 197 of 2012 on the files of the Sessions Court, Palakkad.
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Considering the aforesaid circumstances, I find that the decision of the learned Sessions Judge warrants no interference. Accordingly, there is no merit in this Crl.M.C. and it is dismissed.
Sd/- **BECHU KURIAN THOMAS, JUDGE**
RKM
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## **APPENDIX OF CRL.MC 10830/2023**
|**PETITIONERS' **|**ANNEXURES**<br> **:**|
|---|---|
|**Annexure I**|**TRUE COPY OF THE FIR & FIS IN CRIME NO**|
||**85/2010 OF PUDUNAGARAM POLICE STATION**|
|**Annexure II**|**THE TRUE COPY OF THE COMPLAINT FILED BY**|
||**THE PW17 DATED 05.03.2010**|
|**Annexure III**|**TRUE COPY OF THE REPORT FILED BY THE PW20**|
||**BEFORE THE SUB DIVISIONAL MAGISTRATE,**|
||**PALAKKAD**|
|**Annexure IV**|**THE TRUE COPY OF THE PETITION FILED BY**|
||**THE PETITIONERS BEFORE THE FIRST ADDL**|
||**SESSIONS COURT PALAKKAD WHICH WAS**|
||**NUMBERED AS CRL MP NO 5732/2023**|
|**Annexure V**|**THE CERTIFIED COPY OF THE ORDER DATED**|
||**05.12.2023 IN CRL MP NO 5732/2023 IN SC**|
||**NO 197/2012 ON THE FILES OF FIRST ADDL.**|
||**SESSIONS COURT, PALAKKAD**|
