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2017 DIGILAW 273 (MAD)

K. Thilagavathy v. Inspector of Police

2017-01-30

N.KIRUBAKARAN

body2017
ORDER : N. Kirubakaran, J. 1. This Criminal Original petition has been filed by the petitioner/wife of the deceased, namely, one Karthikeyan who was murdered on 02.07.2009 allegedly by the accused, namely, Naagu @ Naagendran and the respondents 2 to 12. 2. The case has been registered against 13 accused for the offences under Sections 147, 148, 149, 323, 427, 506(ii) and 302 of I.P.C. and after investigation it was committed in S.C. No. 152 of 2011 on the file of the Additional District and Sessions Judge, Pudhukottai. Prosecution witnesses listed are shown in the typed set. During the pendency of the trial, first accused Mr. Naagu @ Naagendran died. 3. Suman is the eyewitness to the murder and he was examined as PW-1. Before he could give evidence, the accused, namely, A-3 Panneer, A-4 Moorthy and A-8 Murugesan @ Murugan barged into Suman's house in Kandharvakottai and forcibly abducted Suman in a Tavare car and they forcibly obtained Suman's signatures in blank papers at knife point and also threatened with dare consequences stating that he must turn hostile. Left with no other option, PW-1 Suman turned hostile on 03.04.2014, while giving evidence. Moreover, his signature alone was marked as Ex.P.1. PW-2 Saravanan and PW-3 Venkatesan also turned hostile witnesses due to the threat of the accused. Therefore, the petitioner/wife of the deceased preferred a complaint before the Deputy Superintendent of Police, Pudhukottai, about the kidnapping of PW-1 Suman and a case was registered in Crime No. 127 of 2014 against the said persons for the offences under Section 363 and 506(ii) I.P.C. Moreover, the aforesaid Suman submitted a petition before the learned Additional District and Sessions Judge, Pudhukottai, narrating his kidnapping and other events and requested the Court to scrap his evidence recorded on 03.04.2014, when he turned hostile and requested to re-examine him in chief. 4. The petitioner contended that the Inspector of Police, at Kandharvakottai, is colluding with the accused and illegally detained PW-1 on 08.04.2014 and threatened him to state that the petitioner filed the kidnapping case in Crime No. 127 of 2014 only at the instance of one Annamalai and Sathanur Shiva. Further PW-1 Suman also sent copies of letter, dated 08.04.2014 to the higher authorities including the Superintendent of Police, Pudhukottai District. Further another representation was also given by the petitioner to the Superintendent of Police, Pudhukottai, for giving adequate police protection. 5. Further PW-1 Suman also sent copies of letter, dated 08.04.2014 to the higher authorities including the Superintendent of Police, Pudhukottai District. Further another representation was also given by the petitioner to the Superintendent of Police, Pudhukottai, for giving adequate police protection. 5. As the learned District Judge was allegedly biased against the prosecution witnesses, he had not taken any action on the representation of Suman, dated 08.04.2014. Hence, the petitioner filed Crl. O.P. (MD) No. 7737 of 2014 to transfer the Sessions case to some other Court. 6. In the meanwhile, PW-1 Suman filed a petition in Crl. O.P. (MD) No. 8223 of 2014 before this Court to scrap his evidence deposed by him on 03.04.2014 in S.C. No. 152 of 2011 and to treat the petition dated 08.04.2014, as a petition filed under Section 311 of Cr.P.C. to recall and re-examine him. By a common order dated 03.07.2014, this Court disposed the above petitions directing the trial Court to suo motu recall PW-1 and examine and also directed the respondent police to provide police protection to all the witnesses. 7. When the matter came up before the trial Court on 21.07.2014, a petition to recall and re-examine PW-1 as per the direction of this Court was presented and the same was refused to be received by the learned Judge. Without examining PW-1, the learned Judge examined the petitioner as PW-9 on 23.07.2014. In spite of the orders passed by this Court on 03.07.2014, directing the trial Court to suo motu recall PW-1, the learned Judge refused to recall PW-1, namely, Suman. Therefore, the present Transfer petition has been filed. 8. Even though the petition is a transfer petition, to give a finality to the issue of recall PW-1 and to scrap PW-1's evidence, the parties advanced argument regarding scraping of earlier PW-1's evidence and recalling PW-1, this Court decides the said issue on merits. 9. Heard, Mr. C. Arul Vadivel @ Sekar, learned counsel for the petitioner and Mr. A.P. Balasubramaniam, learned Government Advocate (Crl. Side) for the respondents 1, 13 to 15 and Mr. T. Vadivelan, learned counsel for the respondents 2 to 12. 10. Mr. C. Arul Vadivel @ Sekar, learned counsel for the petitioner would submit that the said recall petition has been filed only in the above peculiar circumstances. A.P. Balasubramaniam, learned Government Advocate (Crl. Side) for the respondents 1, 13 to 15 and Mr. T. Vadivelan, learned counsel for the respondents 2 to 12. 10. Mr. C. Arul Vadivel @ Sekar, learned counsel for the petitioner would submit that the said recall petition has been filed only in the above peculiar circumstances. As already stated that the petitioner has got every right to examine even a fresh evidence or PW-1 is recalled. It is always open to them discredit or impeach the evidence to be recorded by PW-1. He also submitted that there is a direction from this court and accordingly the eyewitness, namely, PW-1 Suman, should be examined after scraping the evidence given by him already as it was deposed under threat. However, Mr. T. Vadivelan, learned counsel for the respondents 2 to 12 would oppose the scrapping of the evidence already recorded and recalling PW-1 and the attempt made by the petitioner is to get over the admissions made by PW-1 and to fill up Lacuna when he was examined earlier. Mr. A.P. Balasubramaniam, learned Government Advocate would submit that the prosecution is ready to complete the trial at the earliest. 11. It is not for the first time, the petitioner makes the complaint regarding the threat of the accused against PW-1, when he was examined as witness. The petitioner also sent representations to the various authorities about the kidnapping of PW-1 and under coercion he turned hostile. It is the specific case that PW-1 Suman was kidnapped by the accused Nos.3, 4 and 8 and a complaint was given in Crime No. 127 of 2014 for the offence under Section 363 and 506(ii) I.P.C. though the case had been closed as mistake of fact. The case of the prosecution is based on the eyewitnesses, namely, PW-1, PW-2 and PW-3. Hence, the petitioner filed a petition in Crl. O.P. (MD) No. 8223 of 2014 before this court for a direction to trial Court to scrap the evidence deposed by PW-1 on 03.04.2014 and to treat the petition dated 08.04.2014 as a petition filed under Section 311 of Cr.P.C. to recall and examine him. 12. This Court by order dated 03.07.2014 disposed of the petition in Crl. O.P. (MD)No. 7737 of 2014 filed by the petitioner to transfer the case and Crl. 12. This Court by order dated 03.07.2014 disposed of the petition in Crl. O.P. (MD)No. 7737 of 2014 filed by the petitioner to transfer the case and Crl. O.P. (MD) No. 8223 of 2014 filed by the petitioner to scrap the evidence of PW-1 as it was recorded under threat, this Court passed the following order:- "(ii) Since PW-1 has and examine and during the examination of this witness or another witnesses including the victim's wife, the present trial Court may order adequate victim's witness protection, to the respondent police to provide such protection." A perusal of the above order would make it very clear that this Court instead of waiting for a petition either from the petitioner herein, namely, the defacto complainant or PW-1, directed the trial Court to recall PW-1 suo motu and also directed police protection to all the witnesses. The said order makes it very clear, this Court was convinced that there was a threat to the witness and the petitioner turned hostile due to kidnapping and threat and therefore, this Court directed to suo motu recall PW-1. In this case, PW-1 to PW-3 already turned hostile and therefore, necessarily PW-1 has to be examined as per earlier order passed by this Court on 03.07.2014 in view of kidnapping of PW-1, and deposing evidence as hostile witness earlier. The earlier order of this Court would only go to show that this Court agreed with the submission made by the petitioner that PW-1 turned hostile under threat. Moreover, this Court's order dated 03.07.2014 attained finality. Hence, the trial Court is bound by the same and it could not violate this Court's order. Therefore, as directed by this Court on 03.07.2014, the trial Court is directed to recall PW-1 under Section 311 of Crl.P.C. and to re-examine him by scraping the evidence given by PW-1 before the trial Court already on 03.04.2014. 13. No prejudice is caused to the accused, if the earlier evidence is scraped as it is the right of the accused to cross examine PW-1 based on his new evidence which is going to be recorded once again. If the accused wants to retain the earlier evidence of PW-1, which according to the petitioner was obtained under threat, the objections of the accused to scrap would support the contention of the petitioner that PW-1 was threatened and coerced to give evidence earlier. 14. If the accused wants to retain the earlier evidence of PW-1, which according to the petitioner was obtained under threat, the objections of the accused to scrap would support the contention of the petitioner that PW-1 was threatened and coerced to give evidence earlier. 14. Though the petition has been filed under Section 311 of Cr.P.C. for transfer making allegations against the Judicial Officer, this Court moulds the prayer and gives appropriate directions in the interest of justice. It is also stated that the Judicial Officer was already transferred and new officer has taken charge and therefore, the question of transfer does not arise. With regard to relief sought for by the petitioner is concerned, the following directions are issued: 1. PW-1 is directed to be recalled and examined under Section 311 of Cr.P.C. by the learned Additional District and Sessions Judge, Pudukottai. 2. The earlier evidence adduced by PW-1 on 03.04.2014 is directed to be scrapped. 3. All the witnesses including are directed to be given protection by the police, as per the earlier order dated 03.07.2014 passed in Crl. O.P. (MD) No. 7737 of 2014 and Crl. O.P. (MD) No. 8223 of 2014. 4. The learned Additional District and Sessions Judge, Pudhukottai, is directed to dispose of the matter on or before 30.04.2017 and co-operate with them. 15. As it is stated by both the parties, the matter is adjourned on 10.02.2017 and on which date PW-1 shall be examined afresh and the accused are directed to co-operate with the trial Court to dispose of the case on or before 30.05.2017. 16. Though the petition is disposed of with the above directions, as far as the petitioner and the respondents 1 to 12 are concerned, the petition is kept pending for passing appropriate directions with regard to witness protection. Post for passing further orders.