IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 Crl.MC.No. 2782 of 2006() ------------------------- SC.138/2003 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI .................... PETITIONER(S): ACCUSED. ----------------------- 1. CHANDRABABU EDALATH, S/O.BALAKRISHNAN NAIR, AGED 40 YEARS, KARUNALAYAM, CHEMBRAKATTOOR P.O., AREACODE, MALAPPURAM. 2. SREEDEVI AMMA, W/O.BALAKRISHNAN NAIR, KARUNALAYAM, CHEMBRAKATTOOR P.O., AREACODE, MALAPPURAM. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA (DEPUTY SUPERINTENDENT OF POLICE, MALAPPURAM, CRIME NO.60/2001 OF AREACODE POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. P.P.SRI.C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------- Crl.M.C.No.2782 of 2006 ----------------------------------- Dated this the 17th day of February, 2010 ORDER Petition filed to quash Annexure-IV order. 2. The petitioners were charge sheeted for offences under Section 304-B read with 34 IPC. This case originated from the alleged commission of suicide of one Sunitha who was the wife of first accused. Second accused is the mother of first accused. The trial commenced before the learned Additional Sessions Judge and witnesses were also examined as Pws.1 to 13. Questioning of the accused under Section 313 Cr.P.C. is also over. Petitioners are aggrieved by the order passed by the learned Additional Sessions Judge, in the course of examination of PW13. The said order, Annexure-IV, is incorporated in the deposition of PW.13, the investigating officer. The said order is as follows:- “The AGP pointed out that he wants to mark the omission on the ground that Kesavadas went to Gulf and therefore under Section 32 of the Evidence Act, omission can be marked. Counsel for the accused submitted and objected on the ground that Crl.M.C.No.2782 of 2006 2 this witness already examined as PW9 and without declaring the witness Kesavadas as hostile no omission can be marked through this witness. I gone through the 161 statement of witness and deposition of PW9. It is seen that witness has disclosed a new case and that witness is not obtained after recalling. Since he is now in Gulf, I feel that without unreasonable delay and expenses, he cannot be procured. Hence subject to objection I am allowing the prosecution to mark the omission. Subject to further arguments in detail at the time of arguments.” 3. According to learned counsel for petitioner the entire deposition of PW9 (the cross examination) was marked as Exts. P15 and P16 series, as omission in the case diary, while PW13, the investigating officer, was examined and this is illegal. It is submitted that PW9 was examined in full and he had supported the prosecution. Certain answers given by PW9 in cross examination which are not convenient to the prosecution are sought to be brought out as omission in the case diary Crl.M.C.No.2782 of 2006 3 statement. Defence counsel raised objection at the very outset in getting those portions marked, but the court has taken the omission as relevant and put those portions to the accused while he was questioned under Section 313 Cr.P.C. Hence,Annexure-IV order may be quashed, it is submitted. 4. Learned Public Prosecutor argued that petitioners can still put forward his arguments before the trial court, if there is any illegality in marking Exts.P15 and P16 series. But there is scope for any interference in an order passed, which is incorporated in the deposition of PW.13. On hearing both sides and on going through the depositions of PW.9 and PW.13 I find that the learned Sessions Judge has recorded in the order as follows:- “Hence subject to objection I am allowing the prosecution to mark the omission, subject to further arguments in detail at the time of arguments”. 5. The above observation of the learned Additional Sessions Judge itself makes clear that he is open to the contentions, if any, to be advanced by petitioners. If there is any, illegality or impropriety in relying upon the omissions, Exts.P15 and P16 Crl.M.C.No.2782 of 2006 4 series learned Additional Sessions Judge is still at liberty to consider the same and proceed with the matter, on the basis of further arguments. I am satisfied that there is no reason to interfere with Annexure-IV order at this stage, especially since learned Additional Sessions Judge has made it clear that the omissions are allowed to be brought out subject to objection and detailed arguments. The petitioner is at liberty to advance all the contentions on the question whether Exts.P15 and P16 series are relevant as per law etc. and the learned Additional Sessions Judge shall take into consideration all the contentions raised while disposing of the case. This petition is disposed of accordingly. K.Hema, Judge cms