IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.Rev.Pet.No. 2685 of 2008() ------------------------------ SC.329/2005 of ADDL.ASSISTANT SESSIONS COURT, THALASSERY .................... REVN. PETITIONER: ------------------ O.V. NITHIN MOHAN @ BOBBY, S/O. MOHANAN, MULLAMKUNNU DEVI SADAN, THIRUVANGADU AMSOM, KAVUMBHAGOM. BY ADV. SRI.S.RAJEEV RESPONDENTS: RESPONDENT ----------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 73 OF 2001 OF THALASSERY POLICE STATION) BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ----------------------------------- CRL.R.P.NO.2685 OF 2008 ------------------------------------ Dated this the 21st day of August, 2008. O R D E R The revision petitioner, who is the accused in S.C.No.329/2005 on the file of the Additional Assistant Sessions Judge, Thalalssery, for offences punishable under Section 3 read with Section 25(1)(A) of the Arms Act, 1959 and Section 5 of the Explosive Substances Act, 1908, challenges the order dated 5.8.2008 passed by the trial court allowing Crl.M.P.No.121/2008 filed by the Public Prosecutor in charge of the case. As per the said petition filed under Section 311 of Cr.P.C, the Public Prosecutor sought to issue summons to one K. Sreedharan, Retired Revenue Officer, Thalassery, and to the Secretary of the Thalassery Municipality and to one Parayi Renjith, who was charge witness No.10, already examined as PW3. 2. The case of the prosecution is that at about 6.20 p.m on 5.2.2001 the police party conducted a search of the residential house bearing Registration No.IV/205 occupied by the revision petitioner/accused and came across materials for manufacturing country bombs and the accused thereby committed the CRL.R.P.NO.2685/08 . 2 aforementioned offences. 3. After the prosecution evidence, the accused was examined under Section 313 (1) of Cr.P.C. At that stage, the Public Prosecutor in charge of the case filed the above petition with a request to issue summons to the aforementioned three witnesses. The prosecution had already marked Ext.P10 certificate issued by K. Sreedharan, Revenue Officer, Thalassery Municipality, now retired. As per the said certificate dated 19.3.2003, the owner of building No.II/467 of the Thalassery Municipality was Smt.Komath Thacholi Devi. It was from this house, of which the petitioner is alleged to be the owner and occupier, that the prosecution would contend that explosive substances were recovered on 5.2.2001. The purpose of examining K. Sreedharan, who is the officer issued Ext.P10 certificate, was to prove the same. The purpose of examining the Secretary of Thalassery Municipality was to prove that building number of the said building bearing No.II/467 during the previous quinquennial period from to 1995 was IV/205. The purpose of re-summoning PW3 (CW10) was to prove an omission by the said witness that Komath Thacholi Devi referred to in Ext.P10 certificate is none other than the grandmother of the revision petitioner/accused. CRL.R.P.NO.2685/08 . 3 4. The learned counsel appearing for the revision petitioner took strong exception to the further examination of Parayi Renjith, PW3 for the aforesaid purpose. His argument is that there was no mention about Komath Thacholi Devi being the grand mother of the accused in any of the prosecution records and the Prosecutor has no case that the earlier statement by any prosecution witness to that effect was omitted to be introduced during the trial of the case for which purpose the said witness was being re-summoned. If the prayer to further examine PW3 was granted it is argued that that would amount to filling up lacuna in the prosecution evidence and it would result in failure of justice so far as the accused is concerned who is put to extreme prejudice. 3. I cannot agree with the above submission. The argument that unless there is material in the prosecution records in support of a particular fact asserted by the prosecution, it is not permissible for the prosecution to introduce that fact through the prosecution witness cannot be accepted as the correct statement of law. A witness for the prosecution cannot be pinned down to his previous statement under Section 161 of Cr.P.C. In other words, it is not the law that a prosecution witness should confine himself only to the statement under Section 161 of Cr.P.C and he cannot travel beyond CRL.R.P.NO.2685/08 . 4 the said statement. No doubt if a prosecution witness introduces a new aspect on a material fact, which does not find in the previous statement of that witness to the investigating agency during the stage of investigation, then depending on the facts and circumstances of the case, it may or it may not amount to an improvement or embellishment or contradiction. If it amount to contradiction, very well the defence can certainly take advantage of the same for impeaching the credit of the witness and nothing more. Hence by attempting to prove that Komath Thacholi Devi referred to in Ext.P10 is the grandmother of the revision petitioner/accused, who according to the prosecution was residing in the said house from where the explosive substances were seized, the prosecution is not attempting to fill up the lacuna in the prosecution evidence. With regard to the prayer for examining K. Sreedharan and Secretary to the Thalalssery Municipality there is no serious objection to the same since K. Sreedharan is the officer who issued Ext.P10 certificate. The attempt of the prosecution to formally prove the said document through the said witness is quite reasonable. Examination of the Secretary, Thalassery Municipality to prove the former registration number of the building in question also cannot be taken exception to. CRL.R.P.NO.2685/08 . 5 The result of the foregoing discussion is that the order passed by the magistrate permitting the prosecution to examine the three witnesses for the purposes referred to above cannot be faulted. This revision is accordingly dismissed. V. RAMKUMAR, JUDGE. cl