IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 Crl.Rev.Pet.No. 3798 of 2007() ------------------------------ AGAINST THE ORDER DATED 27/09/2007 IN CRMP 4562/2006 IN SC.131/2006 of ADDL.SESSIONS COURT, THODUPUZHA .................... REVN. PETITIONER: PETITIONER/ACCUSED NO.17 ------------------------------------------ ALEX @ SABU, S/O.ALEXANDER, KANHIRANGATTU HOUSE, MANKULAM VILLAGE, ANAKULAM, IDUKKI DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: COMPLAINANT ----------------------------------- STATE OF KERALA, DY.S.P., CBCID, IDUKKI, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 3798 of 2007 ========================== Dated this the 4th day of June, 2008. ORDER The petitioner, who is the 17th accused in S.C. No. 131 of 2006 on the file of the First Additional Sessions Judge, Thodupuzha for offences punishable under Sections 143, 147, 148, 447, 427, 324 and 302 r/w Section 149 IPC, challenges the order dated 27.09.2007 passed by the trial court rejecting his application for discharge. 2. The learned counsel appearing for the revision petitioner made the following submissions before me:- This is a case in which 29 persons including the petitioner have been charge sheeted by the Crime Branch Police for the brutal murder of one Sabu. The first informant is none other than the injured widow of the said Sabu. During the course of investigation, she had approached this Court with a petition alleging that the investigation was not satisfactory since the Investigating Officer had failed to include persons who were really involved in the occurrence and had falsely implicated CRL.R.P. NO. 3798/2007 : 2: innocent persons among the array of accused. This Court had directed the Investigating Officer to conduct a proper investigation. In the subsequent statement given by the first informant as well as the eye witnesses under Section 161 Cr.P.C and before the Magistrate under Section 164 Cr.P.C., the name of the petitioner is conspicuously absent. Except adding a few more persons in the array of the accused, the investigating agency did not delete any of the persons arrayed as accused earlier notwithstanding the complaint by the widow of the deceased to the effect that innocent persons had been included in the array of accused. The statements of CW9, the Vicar will clearly go to show that the petitioner was busy helping the church authorities for the celebration of the holly birth of Jesus Christ in the night of 24.12.1996. The occurrence took place at 12 midnight of that day at a time when the holy mass was being conducted in the church. If according to the Vicar, the petitioner was among those who were helping the church authorities for the celebration of Christmas, this is a strong alibi in favour of the petitioner. The facts of the case will clearly show that notwithstanding the CRL.R.P. NO. 3798/2007 : 3: directions of this Court, there was no proper investigation conducted by the police. This is a fit case where this Court should issue a direction to the investigating agency to conduct further investigation under Section 173(8) Cr.P.C and if a further investigation is conducted, that will reveal the innocence of the petitioner and other innocent persons. 3. I am afraid I cannot agree with the above submissions. It is true that the occurrence took place at 12 midnight on 24.12.1996 in which one Sabu was brutally murdered by hitting him with an iron rod on the head, exploding an acid bulb on his face and cutting him with a sword and beating him with sticks on various parts of the body. It is also be true that the motive alleged by the prosecution is the conduct of the deceased in helping the police as an informant to destroy the ganja cultivation done by one Atom Babu. It may also true that the said Atom Babu would have nurtured extreme animosity towards the deceased Sabu for revealing the details of the ganja cultivation and other illicit activities of the said person. But then, the name of the petitioner is specifically mentioned in the F.I. CRL.R.P. NO. 3798/2007 : 4: Statement given by the first informant, who is none other than the injured widow of the deceased Sabu. She is an important occurrence witness. Even specific over acts of beating with stick are attributed to A17, the petitioner herein along with accused Nos. 7 to 16 and 18 to 27. It may be true that in the 164 statement given by the first informant, the name of the petitioner does not figure. But then, the first informant has not stated before the Magistrate that the petitioner whose name has been specifically mentioned in her First Information Statement, was not involved in the occurrence. Having regard to the passage of time after which the statement under Section 164 Cr.P.C was taken, it is quite likely that she might have omitted to mention various names including that of the petitioner. From that alone, it cannot be said that this is a fit case for discharge of the petitioner. 4. No doubt, charge witness No. 9, the Vicar, has mentioned the name of the petitioner as one among the members of the 'Yuvadeepthi' who were busy helping him for the Christmas eve celebrations. But he has admitted in his initial CRL.R.P. NO. 3798/2007 : 5: statement as well as in the subsequent statement that he does not know whether any member of the 'Yuvadeepthi' including the petitioner had gone out of the church during the holy mass. If so, it is too early to conclude that there is absolutely no positive evidence in the materials produced by the prosecution to show that the petitioner was present at the scene of occurrence during the ill fated night. No doubt, these are all statements given by the witnesses either under Section 161 Cr.P.C or under Section 164 Cr.P.C. They can transform into legal evidence only when those witnesses tender substantive evidence before the court in the form of their testimonial statements before the court. Hence, I am not able to find fault with the trial Judge for not acceding to the request of the petitioner for discharge. 5. The charge sheet in this case was filed on 16.04.2005. The case was thereafter pending before the committal court for nearly one year and after committal, the case was registered as a sessions case in the year 2006. It is only after the dismissal of the discharge petition of the petitioner that he has voiced the grievance that the investigation has not been properly conducted. CRL.R.P. NO. 3798/2007 : 6: His request for further investigation at this stage cannot be entertained. No doubt, if during the course of trial, it is made to appear to the trial court that the case warrants further investigation on any particular aspect, this order will not preclude the trial judge from ordering further investigation. The result of the foregoing decision is that I see no ground to interfere with the order passed by the trial Judge. This Crl.R.P. is accordingly dismissed. V. RAMKUMAR, JUDGE. rv CRL.R.P. NO. 3798/2007 : 7: