Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 1ST DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 CRL.MC NO. 3372 OF 2023 AGAINST THE ORDER IN CMP NO.450/2023 IN SC 328/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MAVELIKKARA PETITIONER/ACCUSED: JOMON AGED 26 YEARS S/O JOY, HOUSE NO. 8 SNEHAJALAKAM COLONY, PUTHUPALLY VILLAGE, DEVIKULANGARA PANCHAYATH, ALAPPUZHA DISTRICT (UNDER JUDICIAL CUSTODY AT SUB JAIL MAVELIKARA, ALAPPUZHA- 690101), PIN - 690527. BY ADVS. OMAR SALIM ASHISH ABY DAVID A.N.BIJU
RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031. SRI.VIPIN NARAYAN, SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. No.3372 of 2023 2
ORDER
This petition is filed challenging the order dated 13.04.2023 in
C.M.P.No.450/2023 in S.C.No.328/2022 on the files of the Additional District Court and Sessions Court - III, Mavelikkara. By the aforesaid order, the learned Sessions Judge rejected the application filed by the petitioner to recall PW 40 - the investigating officer, and to play a compact disk which is produced along with the report submitted by the Forensic Science Lab as Ext. P93. The request of the petitioner to recall DW3 and play Exts.D15 and D17 CDs was also rejected.
2. Sri. Omar Salim, the learned counsel appearing for the
petitioner, submitted that if the contents of the Compact Disk produced along with Exhibit P93 series as well as Exts. D15 and D17 are viewed by the Court, it would go a long way to establish the case of the defense. The above Compact Disks contain the videograph of the incident as it happened on the alleged date of occurrence. According to the learned counsel, as the documents have already been admitted in evidence, there is no justification on the part of the learned Sessions Judge in refusing to allow the application. He points out that since the accused is in custody, the defense would be seriously prejudiced if an opportunity as prayed for is not granted.
Crl.M.C. No.3372 of 2023 3
3. The learned Public Prosecutor has opposed the submissions.
According to the learned Public Prosecutor, Ext.P93 is the report of the Forensic Science Lab which was marked under Section 293 of the Cr.P.C. A compact disk of the contents of the electronic equipment, which is the subject matter of Ext.P93 was also forwarded along with. However, the CD which is sought to be played in the presence of the Investigating Officer has not been marked as evidence. It is further submitted that while PW 40 was in the box, a specific question was put by the learned counsel appearing for the petitioner as regards the identity of persons who were present in the building where the incident took place. It is borne out from the deposition of PW40 that he is unaware of the contents of the CD. According to the learned Public Prosecutor, in that view of the matter, no purpose would be served in recalling PW40 and in playing the CD in his presence. It is further submitted that in so far as DW3 is concerned, he was examined twice, and the defense has not utilized the opportunity. He would point out that, taking note of the fact that the petitioner has been in judicial custody, this Court had ordered a time-bound disposal. Based on instructions, it is submitted that evidence was closed as early as 17.01.2023, and the defense evidence was closed on 10.03.2023. It is further submitted that no purpose would be served in resummoning the investigating officer and the defense witness
Crl.M.C. No.3372 of 2023 4 solely to play the compact disk in open court.
4. I have considered the submissions advanced. A copy of the
application filed by the petitioner has not been produced along with this petition. The petitioner has also not produced a copy of the deposition of the witnesses to enable this Court to understand the grievance of the petitioner. What is stated in the application, a copy of which is handed across the bar, is that PW40 should be recalled, and the CD which came with Ext.P93 should be played in his presence. The other request is to recall DW3 and also for playing Exts.D15 and D17 CDs marked by the defense.
5. In so far as PW40 is concerned, as rightly submitted by the
learned Public Prosecutor, while he was in the box, and when the contents of the CD were put to him, he had stated that he is not aware of the persons who are seen in the video. The said CD has also not been marked in evidence. In so far as DW3 is concerned, he is a witness cited by the defense itself. As it is borne out from the order passed by the learned court, ample opportunity was granted, and DW3 was also recalled twice.
6. From the submissions of the learned counsel, his grievance
appears to be that the contents of the Compact Disk would go a long way in establishing the case of the defense. As rightly submitted by the learned public prosecutor, the CD was forwarded from the Forensic Science lab along Crl.M.C. No.3372 of 2023 5 with the Ext.P93 report. In Ram Chander Vs State of Haryana1 the Apex Court had occassion to observe as under while explaining the true role of a judge trying a criminal case. "Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice.
7. In Zahira Habibulla H. Sheikh v. State of Gujarat,2 it was
observed that a criminal trial is a judicial examination of the issues in the case, and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. The proof of charge, which has to be beyond reasonable doubt, must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated
(1981 AIR SC 1036)
(2004) 4 SCC 158 Crl.M.C. No.3372 of 2023 6 scrutiny.
8. I am of the view that the apprehension of the petitioner that
the learned Sessions Judge would ignore relevant materials produced either by the prosecution or the defense and would decide the matter without adverting to the same is clearly misconceived. As held by the Apex Court, the proof of charge has to be beyond a reasonable doubt, and the same shall depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny. I am certain that the Sessions Judge shall bear in mind the observations of the Apex Court while deciding the case.
This petition will stand dismissed. Sd/- RAJA VIJAYARAGHAVAN V JUDGE Sru Crl.M.C. No.3372 of 2023 7 APPENDIX OF CRL.MC 3372/2023 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF ORDER IN C.M.P.450/2023 IN SC.NO.328/2022 PENDING BEFORE ADDL DISTRICT & SESSIONS COURT - III, MAVELIKARA DATED 13-04-2023.