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2004 DIGILAW 397 (KER)

Balachandran Pillai v. State Of Kerala

2004-08-18

K.A.ABDUL GAFOOR

body2004
Judgment :- Accused 1 to 4 and 6 to 10 in S.C.No.259/95 on the file of the Additional Sessions Judge-I, Kollam are the appellants. The first accused is faced with conviction for the offence punishable under Sections 304 Part-I, 148, 448 and 427 of the Indian Penal code. The other accused are faced with conviction for the offences punishable under Sections 326, 448 and 427 of the Indian Penal Code. Altogether there were 13 accused. The rest were acquitted. 2. The prosecution case was that all the accused formed themselves into an unlawful assembly at about 7.30 P.M. on 20.3.1993 in a public road near the shop of one Thomas, the deceased in this case, committed rioting and inflicted injuries on PWs.1 to 4 and the deceased. First accused threw an acid bulb on PW.1 and the said Thomas sustained burn injuries out of that. Accused 1, 2 and 3 had trespassed into the shop of PW.3 and accused 13 committed an assault on him causing injury on left arm, back and shoulder. The 10th accused had assaulted PW.2 causing injury on his head, flank, elbow and knees. He had also trespassed into the shop of the deceased. Accused 4 to 6 trespassed into the shop of PW.4 and the 4th accused committed an assault on PW.4. 3. The prosecution attempted to prove the incident on the strength of PWs.1 to 15 and Exts. P1 to P32. 4. The injured persons were taken to the nearest hospital at Kottarakkara. PW.10 examined them and issued Exts.P4 to P7 wound certificates. Thomas, the deceased in this case, was referred to the Medical College Hospital., Thiruvananthapuram. The details regarding his treatment are not available. But he succumbed to the injuries after about 20 days on 9.4.1993. Ext.P10 is the post mortem certificate issued by PW.11 who conducted the autopsy. Ext.P1 First information statement was recorded from PW.1, one among the injured by PW.13, Sub Inspector. PW.13 registered the FIR and arrayed accused persons, apart from others who could be identified by sight. PW.14 conducted the investigation and filed reports before the court disclosing the identification of the accused persons. Later, it was transferred to C.B.C.I.D. and PW.15 conducted investigation and laid charges. Appreciating the evidence on record, the appellants were convicted as aforesaid. 5. PW.13 registered the FIR and arrayed accused persons, apart from others who could be identified by sight. PW.14 conducted the investigation and filed reports before the court disclosing the identification of the accused persons. Later, it was transferred to C.B.C.I.D. and PW.15 conducted investigation and laid charges. Appreciating the evidence on record, the appellants were convicted as aforesaid. 5. At the threshold, it is submitted by the counsel for the appellants that going by the evidence given by PW.14 he had questioned all the witnesses and recorded their statements before he filed the reports. According to him, he had sent all the records to PW-15, the successor to him, in the C.B.C.I.D. PW.15 also initially stated that all the statements of the witnesses obtained were produced before the court. He had admitted that he had also recorded some statements during his investigation. But he had to concede that all the witnesses had been questioned by PW.14 who recorded their statements. But, at the committal stage, only the statements of the witnesses under Section 161(3) Cr.P.C. recorded by PW.15 alone were furnished to the accused. It was when PW.14 was cross-examined, it came to light that he had also recorded statements of the very same witnesses under Section 161(3) Cr.P.C. But the fact remained that the said statements had not been furnished to the accused, thereby prejudicing the accused to formulate their defence strategy. It is a protection in terms of Section 207 of the Code of Criminal Procedure that all the statements recorded under Section 161(3) of the said Code shall be furnished to the accused persons. That mandatory provision has been overlooked in this case, prejudicing the accused from moulding their defence case. 6. It is submitted by the Public Prosecutor that whatever records available and produced before the court had been furnished to the accused. If at all they could not get any statement of any of the witnesses; while the trial was going, it was incumbent on the counsel for the accused to point out to the court and obtain those statements and the court would have granted that prayer, so that the accused could modulate their defence and if necessary, the court would have recalled the witnesses. In this regard, the decision of the Supreme Court in Narayan Rao v. State of Andhra Pradesh (AIR 1957 SC 737) is relied on. In this regard, the decision of the Supreme Court in Narayan Rao v. State of Andhra Pradesh (AIR 1957 SC 737) is relied on. Therefore, even if such an eventuality arises, the only way out is to set aside the conviction and remand the matter back to the trial court for fresh trial, after furnishing the copies of those statements to the accused persons. In this case, the accused had not availed of the opportunity to obtain those statements immediately after PW.14 had stated that he also had recorded the statements of the very same witnesses. 7. Of course, the prosecution is bound to give the statements of the witnesses, whom they propose to rely on, to the accused. In this case, all the witnesses have been examined and from all such witnesses, as spoken to by PWs.14 and 15, statements have been recorded by both of them. In such circumstances, going by the provisions in Section 207 Cr.P.C., it is imperative that the statements, recorded under Section 161(3) Cr.P.C., of persons whom the prosecution proposes to examine as witnesses, to be furnished to the accused persons, unless in terms of the proviso to Section 207 the Magistrate directs that any portion need be furnished. Examining this aspect and brushing aside the contentions raised by the Public Prosecutor, this court in State of Kerala v. Raghavan (1974 Crl.L.J.1373) held as follows: “Moreover, if this argument of the State Prosecutor is to be accepted, it would imply that the prosecution can, at its sweet will and pleasure pick and choose the statements of witnesses in respect of which the copies are to be, or are not to be, furnished to the accused to suit its convenience, thus eliminating all chances of the witnesses being confronted with their previous statements inconsistent with or contradictory to the case which the prosecution seeks to establish, which could never be the intention of the legislature.” 8. It is only at the time of examination of PW.14, this aspect has come to light. In such circumstances, it was incumbent on the prosecution to ask the court to stop the trial and to furnish the records and proceed further when the investigating officer himself has divulged that material defect. The prosecution did not adopt that course of action. It is only at the time of examination of PW.14, this aspect has come to light. In such circumstances, it was incumbent on the prosecution to ask the court to stop the trial and to furnish the records and proceed further when the investigating officer himself has divulged that material defect. The prosecution did not adopt that course of action. In such a situation, it cannot be taken that there shall be a fresh trial, as contended by the Public Prosecutor. 9. Relying on the said decision, a Division Bench of this Court in Murali v. State of Kerala (2003 (3) KLT 226) (to which myself was also a party) held as follows: “As held by this Court in the decision (cited supra) reported in (1974 Crl.L.J. 1373) the prosecution is bound to produce the entire statements obtained from the witnesses under S.161 Cr.P.C. whether the statement is in favour of the accused or in favour of the prosecution because the role of the police is to bring the real truth before the Court. Necessarily, as held in that decision, non-furnishing of some of the statements or some part of the statements of the same witnesses will vitiate the trial and the accused will be denied of a fair trial. Denial of fair trial would necessarily prejudice the accused to have a proper defence. Therefore, it cannot be accepted that nonproduction of the original of Ext.D1 or the statement under S.161 Cr.P.C. obtained from PW.4 on 13.7.1996 do not prejudice the accused/appellants. Therefore, on that reason itself, because of the denial of a fair opportunity, the appeals have to be allowed reversing the judgment of the trial court, finding the appellants/accused not guilty of the offences with which they are charged, and acquitting them of all the charges leveled against them.” No order of the Magistrate, if at all it is applicable, issued in terms of the proviso to Section 207 of the Code of Criminal Procedure, 1973, enabling the prosecution to furnish such of the copies of the statements as directed by the Magistrate, is also pointed out by the Public Prosecutor. Necessarily, the non-furnishing of some of the statements or some part of the statements of the same witnesses, who had already been examined by the prosecution, as recorded by PW.14, prejudiced the accused to formulate their defence strategy. Necessarily, the non-furnishing of some of the statements or some part of the statements of the same witnesses, who had already been examined by the prosecution, as recorded by PW.14, prejudiced the accused to formulate their defence strategy. This prejudice cuts at the root of the fair trial. When there is no fair trial conviction cannot be stated to be justified. 10. In such circumstances, I need not go into the factual inconsistencies and intricacies disclosed in the examination of the witnesses. 11. Necessarily, the conviction shall have to be interfered with, I, therefore, set aside the conviction and sentence and find the appellants not guilty. Consequently, the sentence is vacated. The bail bonds executed by them shall stand cancelled. Appeal is allowed.