IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 CRL.A.No. 926 of 2007() ----------------------- SC.195/2004 of ADDL. SESSIONS COURT, ALAPPUZHA .................... APPELLANT(S): ACCUSED NOS. 1& 2: -------------------------------- 1. AJAYAKUMAR @ AJI, S/O.SIVARAMAN NAIR, KAITHAVALAPPIL PUTEHN VEEDU, DISTRICT COURT WARD, ALAPPUZHA. 2. GURUKUMAR @ GURU, S/O.VIJAYAN, KIZHAKKEPLAKKAL VEEDU, AVALOOKKUNNU P.O., ALAPPUZHA. The name and address of the second appellant is rectified as Raja, S/o. Jamal, Nelliparambil, Kalarickal Veedu, Arattuvazhy Ward, Alappuzha as per order dated 20-6-2007 in Crl.M.A. No.6586/2007 in Crl.A. No.926/2007. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED RESPONDENT(S): COMPLAINANT: --------------------------- STATE , REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A. No. 926 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 20th day of October, 2011 JUDGMENT Ramkumar, J. In this appeal filed under section 374(2) Cr.P.C. the appellants who are A1 and A2 in S.C. No.195 of 2004 on the file of the Addl. Sessions Court, Alappuzha challenge the conviction entered and sentence passed against them for offences punishable under sections 302, 436, 449, 427 and section 120B IPC. PROSECUTION CASE 2. The case of the prosecution can be summarized as follows:- PW2 (Roy Morera) was the proprietor of Startec Cable TV net work since 1993. It was providing cable T.V. connection to about 2500 consumers at Alappuzha. Umesh who was one of the deceased in this case was the field staff of PW2. Binoy, the other deceased, was his office staff. CRA 926/2007 2 The first accused (Ajayakumar @ Aji) was running another cable T.V. net work by name Veenus Cable T.V. net work in partnership with A9 (Elsy Varkey). The distance between the Startec Cable T.V. net work and Veenus Cable T.V. net work was only half a kilo metre. There was business rivalry between the above two cable T.V. operators. Deceased Umesh and deceased Binoy used to cut off cable T.V. line of Veenus Cable T.V. net work, resulting in heavy loss to Veenus Cable T.V. net work. On account of that A1 to A9 were having enmity towards PW2 and his employees namely, the deceased persons. A1 to A9 therefore hatched a criminal conspiracy with the object of setting fire to Startec Cable T.V. net work, housed in the second floor of S.A.S. building at Thondankulangara in Mullakkal Village of Ambalapuzha Taluk, and thereby cause heavy loss to PW2 and also to commit the murder CRA 926/2007 3 of Umesh and Binoy through arson. The venue for the conspiracy was the house of A9 (Elsy Varkey) on 29-4-2000 and the house of A3 (Banarji @ Banar) on 30-4-2000. Pursuant to the above conspiracy, on 1-5-2000 at about 3.30 a.m. A1 to A8 armed with deadly weapons like MO34 sword, MO35 dagger, MO 36 axe and a can filled with petrol reached near S.A.S. building in a Maruthi Gipsy bearing registration No.TN 21/Z 2286. A1 and A2 trespassed into the second floor of the building where the Startec Cable T.V. net work was functioning and also into the adjacent studio room. After pouring petrol over the net work and system, they set fire to it. Binoy and Umesh who were sleeping in the studio were burned to death. The above fire destroyed the entire studio, resulting in a loss of Rs.25 lakhs to PW2. A2 who had sustained burn injury in the occurrence was arrested by PW79 while making arrangement for CRA 926/2007 4 his treatment. A9 had also harbored A1 to A8 with the intention of screening them from punishment. The accused have thereby committed offences punishable under sections 143, 147, 148, 449, 427, 436, 302, 120B and 212 read with section 149 IPC. THE TRIAL 3. On the accused persons pleading not guilty to the charge framed against A1 to A8 for the aforementioned offences and against A9 for the offence punishable under section 120B IPC, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 82 witnesses as PWs.1 to 82 and got marked 129 documents as Exts.P1 to P129 and 36 material objects as MOs.1 to 36. 4. After the close of the prosecution evidence, the accused were questioned under section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They CRA 926/2007 5 denied those circumstances and maintained their innocence. 5. Since this was not a case of “no evidence” for the prosecution, the trial court did not record an order of acquittal under section 232 Cr.P.C. The accused persons were therefore called upon to enter on their defence and to adduce any evidence, which they might have in support thereof. They did not adduce any defence evidence except getting marked Exts.D1 and D2 which are the case diary contradictions of PWs.36 and 24 respectively. 6. The learned Sessions Judge, after trial, as per judgment dated 19-12-2006 acquitted A3 to A9 for all the offences but convicted the appellants (A1 and A2) for offences punishable under sections 302, 436, 449, 427 and 120B IPC. For their conviction under section 302 IPC each of the appellants was sentenced to undergo imprisonment for life and to pay fine of Rs.2 lakhs and in default to pay the fine to suffer rigorous imprisonment for three years. The fine amount was directed to be paid as compensation to the CRA 926/2007 6 relatives of the deceased. For their conviction under section 436 IPC each of the appellants was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lakh and on default to pay the fine to suffer rigorous imprisonment for one year. The fine amount was directed to be paid as compensation to PW2. For their conviction under section 449 IPC each of the appellants was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.50,000/- and on default to pay the fine to suffer rigorous imprisonment for two years. For their conviction under section 449 IPC each of the appellants was sentenced to undergo rigorous imprisonment for two years. For their conviction under section 120B IPC each of the appellants was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.50,000/- and on default to pay the fine to suffer rigorous imprisonment for two years. The substantive sentence of imprisonment was directed to run concurrently. It is the said judgment which is assailed in this appeal. CRA 926/2007 7 THIS APPEAL 7. We heard Adv. Sri.B.Raman Pillai, the learned counsel appearing for the appellants, and Adv. Gikku Jacob, the learned Public Prosecutor who defended the State. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellants are sustainable or not. THE POINT 9. Even though several grounds were put forward by the learned counsel for the appellants in support of the appeal, one of the main grounds urged by him before us is that the appellants were not furnished with copies of statements recorded under section 161(3) Cr.P.C. by PW78, the then Dy.S.P., Alappuzha, who conducted the investigation of the case from 1-5-2000 to 16-6-2000. This was an objection raised even before the trial court and the trial court rejected the same on the ground that those statements were not relied on by the prosecution. It is CRA 926/2007 8 evident from the testimony of PW79, the then Dy.S.P. CBCID, Alappuzha, who conducted the investigation after PW78 that he had taken further statements from CWs.1 to 62. There is also no dispute that the statements of CWs.45, 46, 49, 50 and 51 were recorded by PW80 who was the Dy.S.P. who succeeded PW79. Hence, the only prosecution witnesses (falling under CWs.1 to 62) who were questioned by PW78 were PWs.1 to 34, 36, 38 to 44, 57 to 62, 67, 68, 71 and 72. Out of these witnesses, the trial court relied on PWs.1 to 5, 11, 13 to 16, 19 to 22, 24 to 26, 32, 33, 34, 35, 36, 39, 40, 42, 50, 64, 67 to 71 and 76 to 82. But, 161 statement recorded by PW78 in respect of any of those witnesses were not furnished to the appellants. As mentioned earlier, the ground put forward to justify the non-supply of those statements by the prosecution and accepted by the trial court in paragraph 47 of the impugned judgment was that the 161 statement of those witnesses were not relied on by the prosecution and that there was no prejudice caused to the appellants/accused 1 and 2 on CRA 926/2007 9 account of that. 10. We are not persuaded to agree with the above stand taken by the prosecution as well as the reason given by the trial court for accepting the explanation offered by the prosecution. The appellants were facing a charge for grave offences of murder, arson, etc. The prosecution had a duty to supply the statements recorded by each and every Investigating Officer whether those documents were relied on by the prosecution or not. 11. As observed by Justice K.Bhaskaran in State of Kerala V. Raghavan @ Maniyan (1974 KLT 148) the prosecution does not have any discretion to rely or not to rely on a particular statement recorded under section 161 (3) Cr.P.C., as those statements do not constitute substantive evidence. The question of the prosecution relying on those statements will arise only after obtaining permission under section 162 Cr.P.C. to confront the witnesses with those statements. If the argument that the accused is not entitled to get copies of statements, on which CRA 926/2007 10 the prosecution does not seek to rely, is accepted, it will 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 the convenience of the prosecution. Thereby the prosecution will be eliminating all chances available to the defence to confront the witnesses with their previous statements inconsistent with or contradictory to the case which the prosecution seeks to establish. That could never have been the intention of the legislature. While enacting sub-section (5) of section 173 Cr.P.C. in the case of documents, clause (a) of the said sub section gives the discretion to the prosecution to produce before the Magistrate all documents or relevant extracts thereof on which the prosecution proposes to rely. But under clause (b) thereof the prosecution is bound to produce the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. Thus, under clause (b) the prosecution does CRA 926/2007 11 not have the discretion to withhold statements of witnesses on which they do not proposes to rely, if those witnesses are being examined as prosecution witnesses. In other words, the prosecution is bound to produce the case diary statements of all the witnesses who are examined during the trial (See also Joseph V. State of Kerala (2010 (2) KLT 918). 12. One of the important purpose behind an officer conducting an investigation recording statement of persons acquainted with the facts and circumstances of the case is to enable the accused during trial to confront those persons (other than the accused) for the purpose of impeaching their credibility. The right under sections 145 and 155 of the Evidence Act is not illusory right but is a valuable right enabling the accused to assist the court in evaluating the testimony of witnesses. 13. In the case of the above witnesses whom the trial court has relied on to enter the conviction against the appellants, the appellants have been denied by the charging CRA 926/2007 12 officer (PW81) of the statements recorded by PW78 under section 161(3) Cr.P.C. Thus failure to furnish the statement of those witnesses is a major default on the part of the charging officer and that by itself is prejudice to the appellants. If any of those witnesses have been examined by the prosecution, then the statement of those witnesses are necessarily to be furnished to the accused and failure to do so will certainly cause prejudice to the accused in his defence. 14. We are therefore of the view that the trial of the case so far as it relates to the appellants was vitiated by non-supply of the statements of the witnesses recorded by PW78 and relied on by the trial court. But we are not inclined to follow the decision reported in Murali V. State of Kerala (2003(3) KLT 226) to go to the extent of holding that non-supply of statements should invariably result in acquittal of the accused in every case. It will depend upon the facts and circumstances of each case. 15. We are therefore of the view that the appellants CRA 926/2007 13 should be given an opportunity to confront the witnesses (relied on by the trial court and who had been interrogated by PW78 earlier) with their statements recorded by PW78, after furnishing copy thereof to them sufficiently in advance. 16. The conviction entered and sentence passed against the appellants/accused 1 and 2 are dislodged and the impugned judgment is set aside. The matter is remitted to the trial court for fresh disposal, after giving the appellants an opportunity to confront the witnesses mentioned above with their previous statements recorded by PW78 and after furnishing copies of the same to the appellants sufficiently in advance. The 161 statements of those witnesses recorded by PW78 shall be furnished to the appellants/accused 1 and 2 within one month of the date of receipt of a copy of this judgment before the trial court. There need not be any de novo trial so far as the above mentioned witnesses are concerned. It will be sufficient if they are recalled and cross-examined with reference to CRA 926/2007 14 their previous statements recorded by PW78. We make it clear that this order will not re-open the acquittal so far as accused Nos.3 to 9 are concerned. The appellants shall be released from custody forthwith unless their continued detention is found necessary in connection with any other case. The trial court shall give sufficient priority to this case having regard to the fact that this was an occurrence of the year 2000 and the Sessions Case was of the year 2004. The appellants shall appear before the trial court on 28-11-2011. They shall apply for fresh bail before the trial court as and when they appear before the trial court. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE mn.