Vinod v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **Crl.MC.No.7131 OF 2019(B)** **AGAINST THE ORDER IN SC 659/2018 OF ADDITIONAL SESSIONS COURT, IRINJALAKUDA** **CRIME NO.176/2000 OF Kattoor Police Station , Thrissur** ## **PETITIONER/ACCUSED:** **VINOD AGED 43 YEARS S/O.RAVI, NADUVILAPARAMBIL HOUSE, ELAMBUZHA, KARALAM VILLAGE, NOW RESIDING - SUBHADRA, FLAT NO.105, SECTOR 15, POLOT NO.3A, KAMOTHAI, NAVI MUMBAI 410209** **BY ADVS. SRI.VISHNUPRASAD NAIR SHRI.SARATH BABU KOTTAKKAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, KERALA HIGH COURT** ## **R1 BY SMT K K SHEEBA- FOR ADGP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.10.2019, THE COURT ON 04.11.2019 DAY PASSED THE FOLLOWING:** **Crl.MC.No.7131 OF 2019(B)** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.7131 of 2019 ----------------------------------------------Dated this the 4[th] day of November, 2019 ## **O R D E R** The petitioner is the sole accused in the case S.C.No.659 of 2018 on the file of the Additional Sessions Court, Irinjalakkuda. 2. The petitioner is prosecuted for committing an offence punishable under Section 302 I.P.C. The facts of the case have no significance in the context of this petition and they are not narrated here. But, the process of investigation conducted needs mention here. 3. Crime No.176/2000 of Kattoor police station was registered against three persons by name Rajeesh, Vinod and Jobson for the offence punishable under Section 302 read with 34 I.P.C in relation to the death of one Rajappan. It needs mention here that Rajeesh is the second prosecution witness in the charge sheet filed by the Crime Branch. During the investigation of the case by the local police, a knife and a shirt were seized by the investigating officer on the basis of the confession statement allegedly given by Rajeesh. These material objects were subjected to chemical examination. The report **Crl.MC.No.7131 OF 2019(B)** **3** of chemical examination forms part of the records of the case. 4. Subsequently, the investigation of the case was taken over by the Crime Branch. During the investigation conducted by the Crime Branch, it was revealed that Rajeesh was not the real culprit and that the petitioner is the person who committed murder of Rajappan. Charge sheet was filed against the petitioner alone by the Crime Branch and he now figures as the accused in the case and Rajeesh now figures as the second prosecution witness (CW2) in the charge sheet. 5. The trial of the case is now going on. The petitioner filed an application under Section 91 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for production of the following objects and documents before the court by the prosecution. (1) Knife seized by the investigating officer on 27.08.2002 which was sent to the court with property number P1 169/04 dated 21.4.2004. (2) Shirt seized by the investigating officer on 27.08.2002 which was sent to the court with property number P1 516/03 dated 06.12.2003. (3) Seizure/recovery mahazar prepared by the investigating officer dated 27.08.2002 for recovery of the knife and the shift. 6. Learned Sessions Judge dismissed the aforesaid application stating as follows: **Crl.MC.No.7131 OF 2019(B)** **4** _“Accused is entitled to get copy of documents only if the prosecution relies on such documents to prove the prosecution case. It is also be noted that, the right of the accused to summon those documents availing the provisions under section 91 of the Criminal Procedure Code also arose only if the prosecution relies on such documents. Since the chemical examination report already been served to the accused, he could very well confront the witness by referring chemical analysis report. It is trite law that, the accused cannot insist for a second examination of the shirt and knife in order to find out any blood stains on those documents. As per Section 293 of the Criminal Procedure Code the report of the chemical analysis can be accepted in evidence without examining witness. Thus, production of material objects also does not arise. Hence, I hold that, the accused is not entitled to get copy of seizure mahazar or summon the production of shirt and knife.”_ 7. This petition is filed under Section 482 of the Code for setting aside the aforesaid order passed by the learned Sessions Judge and to allow the petition made by the petitioner in the court below. 8. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 9. Learned counsel for the petitioner contended that an **Crl.MC.No.7131 OF 2019(B)** **5** accused as got the absolute right to get copies of all documents seized and collected by the prosecution during the investigation irrespective of the fact whether the prosecution relied upon them or not. Learned counsel relied upon the decision of the Apex Court in **Sasikala v. State : AIR 2013 SC 613** in support of his contention. 10. Learned Public Prosecutor has contended that the prosecution does not propose to rely upon the objects and the document sought to be produced by the petitioner to prove the case against him and therefore, he has no right to get the aforesaid objects and document produced before the court. Learned Public Prosecutor has also pointed out that, though the prosecution had produced the objects and the seizure mahazar in the court below, they had been withdrawn from the court with the permission of the court. 11. The contention of the learned counsel for the petitioner that, an accused has got absolute right to get copies of all documents seized and collected by the investigating officer during the investigation, is a broad proposition which cannot be accepted. But, this is a peculiar case in which the person who initially figured as accused and responsible for committing a murder has attained the status of a prosecution witness and another person has become the accused. The investigation of the case was initially conducted by the **Crl.MC.No.7131 OF 2019(B)** **6** local police. All those officers, who have conducted the investigation of the case initially, are witnesses of the prosecution. The knife and shirt were seized by the police on 27.08.2002 as per the mahazar prepared on that date. The Circle Inspector who has recovered the aforesaid objects and prepared the seizure mahazar is also a witness cited by the prosecution. In such circumstances, if the copy of the seizure mahazar is not furnished to the accused, it would amount to negation of the concept of fair trial. 12. Though learned Sessions Judge has noticed the decision of the Apex Court in **Sasikala** (supra), it appears that he has not properly absorbed the spirit of that decision. In **Sasikala** (supra), the Apex Court has held as follows: _“The question arising would no longer be one of compliance or non-compliance with the provisions of S.207 Cr.P.C and would travel beyond the confines of the strict language of the provisions of the Cr.P.C and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the Courts on a purposive interpretation of Art.21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the Court contending that some papers forwarded to the Court by the investigating agency have not been exhibited by the_ **Crl.MC.No.7131 OF 2019(B)** **7** _prosecution as the same favours the accused the Court must concede a right to in the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised.”_ 13. In the light of the decision of the Apex Court in **Sasikala** (supra), I have no hesitation to hold that the petitioner/accused is entitled to get a copy of the seizure mahazar dated 27.08.2002 so as to enable him to shape his defence and to conduct the case properly. 14. However, the production of the knife and the shirt in the court by the prosecution will not serve any useful purpose for the petitioner. He would be able to bring out the factum of seizure of those objects on cross-examination of the investigating officer who had seized those objects by relying upon the seizure mahazar. The actual production of those objects before the court is not needed for that purpose. If at all the petitioner requires production of the aforesaid objects before the court at the stage of the defence evidence, he would be at liberty to file proper application before the court below at that stage. 15. In the light of the discussion above, I find that the **Crl.MC.No.7131 OF 2019(B)** **8** petitioner is entitled to get a copy of the seizure mahazar dated 27.08.2002 prepared by the investigating officer for recovery of the knife and shirt. 16. Consequently, the petition is allowed in part. The State is directed to furnish the petitioner forthwith a copy of the seizure mahazar dated 27.08.2002 prepared by the investigating officer for the seizure of the knife and shirt. Annexure-A1 order passed by the learned Sessions Judge is modified accordingly. ## Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr/02/11/2019 **Crl.MC.No.7131 OF 2019(B)** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A1** - **THE CERTIFIED COPY OF THE ORDER DATED 28.09.2019 IN CRL.M.P.92/2019 IN SC 659/18 OF THE ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA** - **ANNEXURE A2 TRUE COPY OF THE FIR AND FIS IN CRIME 176/2000 OF THE KATTOOR POLICE STATION DATED 11.10.2000** - **ANNEXURE A3 TRUE COPY OF THE FINAL REPORT IN CRIME 176/2000 OF THE KATTOOR POLICE STATION DATED 31.3.2018** - **ANNEXURE A4 TRUE COPY OF CHEMICAL ANALYSIS REPORT OF TH KNIFE (PI 169/04) AND SHIRT (PI 516/03) IN CRIME 176/2000 DATED 12.12.2012** - **ANNEXURE A5 TRUE COPY OF FORWARDING NOTE OF KNIFE(PI 169/04) AN SHIRT(P1 516/03) IN CRIME 176/2000 DATED 21.11.2012** - **ANNEXURE A6 THE COPY OF THE PETITION NUMBERED AS CRL.MP 92/2019 DATED 23/9/2019 IN SC 659/18 OF THE ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA.** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** ## **LSN**