Allowed

K.G. Kishorkumar @ Kishorkumar v. State of Kerala

Kerala HC10 Nov 2021Crl.MC/2784/2018

Case brief

AI extract

What is this about?

In a criminal miscellaneous case, the High Court allowed the petition by accused persons filing a challenge against the Sessions Court order denying permission to examine additional defence witnesses, setting aside the impugned order and directing the summoning of the witnesses.

What did the court decide?

Allowed the petition, set aside the order dated 20.04.2018, and directed the Sessions Court to issue summons to the witnesses listed in the defence witness list.

K.G. Kishorkumar @ Kishorkumar Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2021)

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Crl.M.C.No.2784/2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 10^TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA,

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1943

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CRL.MC NO. 2784 OF 2018

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AGAINST THE ORDER/JUDGMENT IN SC 307/2008 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, KASARAGOD / II

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ADDITIONAL MACT, KASARAGODE, KASARGOD

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PETITIONER/ACCUSED NO.1 TO 4:

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1 K.G.KISHORKUMAR @ KISHORKUMAR, AGED 34 YEARS,

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S/O.BEEDI MADHAVAN, AGED 34 YEARS, R/AT QUARTERS OF USMAN, ADUKKATHABHAIL VILLAGE

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2 SANTHOSH NAIK @ BAJE SANTHU, AGED 31 YEARS, S/O.BABU NAIK, GUDDE TEMPLE HOUSE, KUDLU

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3 K.SIVAPRASAD @ SIVAN, AGED 35 YEARS,

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S/O.MALINKAN, AGED 35 YEARS, THALIPPADUPPU, ADUKKATHBALL VILLAGE.

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Crl.M.C.No.2784/2018

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4 AJITHKUMAR K @ AJJU, AGED 30 YEARS, S/O.RAGHAVAN, AGED 30 YEARS, R/AT NEAR AYYAPPA BHAJANA MANDHIR, AYYAPPA NAGAR, KUDLU VILLAGE.

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BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.ALEX ABRAHAM SRI.T.K.SANDEEP

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RESPONDENT/COMPLAINANT & STATE:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

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PP-SRI.ARAVIND MATHEW.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.M.C.No.2784/2018

O R D E R

Petitioners are accused Nos.1 to 4 in S.C.No.307 of 2008 on the file of the Court of Additional Sessions Judge-II, Kasaragod, which arises from Crime No.307 of 2008 of Kasaragod Police Station. The allegation against the petitioners is that on 18.04.2008, due to prior enmity they have committed murder of one C.A.Mohammad at Gudde-Temple Road in Kasaragod District using dangerous weapons. This Crl M.C is filed by the petitioners challenging Annexure-III order passed by the Session Court, in Crl.M.P 1228/2018 filed by them in the said case, wherein the prayer sought for by the petitioner to examine defence witness, was rejected.

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The grievance of the petitioners is as follows: After prosecution evidence and recording of statement under section 313 of Cr.p.C, petitioners filed the above Crl.M.P, along with Annexure-I witness list showing five witnesses and sought permission to examine them in support of the defence case. In response to the same, prosecution submitted Annexure-II objection pointing out that the additional witnesses sought to

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Crl.M.C.No.2784/2018 4

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be examined are not relevant witnesses to the case and and they pleaded to reject the prayer made by the petitioners. After hearing both sides, learned Sessions Judge dismissed the said application, vide Annexure-III dated 20.04.2018.

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The first objection put forward by the prosecution is with regard to the examination of the first witness who is the Secretary of the Mogral Puthur Grama Panchayath. According to the petitioners, the aforesaid witness was sought to be examined for summoning the Tax Assessment Register of the Panchayath to bring out the fact that there is no house by name “Ismail Quarters”, which is the residence of PW2, who deposed that, the place of occurrence is at 60 Meters away from the said house and it is visible therefrom. According to the petitioners, relevance of the said witnesses is to show that PW2, the occurrence witness, was not the resident of the place of occurrence and that he is a planted witness. Similarly Sl.No.5 in Annexure I witness list, an Ex Panchayath member was also cited to prove the said aspect.

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The other dispute is relating to witness Nos.2 to 4 in Annexure-A1 witness list. As per Ext P2 and P3 recovery

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Crl.M.C.No.2784/2018 5

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mahazers, the weapons were recovered under section 27 of the Evidence Act, from a temple named “Deva Gudde Temple”. As per PW12 investigating officer, the said temple is only 250-300 meters away from the place of occurrence, whereas, according the petitioners, the said temple is situated at a distance of around 5 -6 Kms therefrom. According to the petitioners, the temple situated at a distance of 250-300 meters from the place of occurrence is named “Gudde Temple”, which is a different temple. However, during the cross examination PW12 stated that both the said temples are one and the same. The petitioners wanted to examine the said witnesses to show that the existence of the temple named “Deve Gudde Temple” at a distance of 5-6 kms. This Crl.M.C is filed in the above circumstances.

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Heard both sides.

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On going through Annexure-III order passed by the Sessions Court, it can be seen that the learned Sessions Judge has prejudged the lack of relevancy of the witness, even before they were examined. Section 233 (3) of Cr.P.C contemplates a right upon the accused person to examine witnesses in support

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Crl.M.C.No.2784/2018 6

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of his case. The said opportunity can be denied only if the learned judge considers, for the reasons to be recorded that, the application submitted is for the purpose of vexation or delay or for defeating the ends of justice. I have carefully scrutinized the reasons recorded in Annexure-III and also the grounds of the petitioners for examining the aforesaid witnesses. In this case, on going through the reasons highlighted by the petitioners, it can be safely concluded that the evidence sought to be adduced by the defence is to establish their case. I do not find any reason to deny the permission to the defence for the same, as in my view, the examination of the said witnesses cannot be held to be for vexation or delay or for defeating the ends of justice. The prosecution also could not point out any prejudice being caused to them if the aforesaid witnesses were examined. In such circumstances, it is only appropriate to grant an opportunity to the defence to examine all the witnesses cited by them. However, evidentiary value and acceptability of the evidence of the said witnesses are matters which can be considered by the Sessions Court at the time of final hearing.

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Crl.M.C.No.2784/2018

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Accordingly, this Crl.M.C is allowed by setting aside Annexure-III order passed by the Additional Sessions Court-II, Kasaragod in Crl.M.P.No.1228 of 2018 in S.C.No.937 of 2012, and allowing the prayer of the petitioners to examine the witnesses cited in Annexure-I, witness list. The Sessions Court is directed to issue summons to the witnesses named therein.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

DG/11.11.21

Crl.M.C.No.2784/2018

APPENDIX OF CRL.MC 2784/2018

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PETITIONER ANNEXURE

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ANNEXURE I	A TRUE COPY OF THE PETITION/DEFENCE WITNESS LIST NUMBERED AS CRL.MP.NO. 1228/2018 FILED BEFORE THE COURT OF ADDITIONAL SESSIONS JUDGE II, KASARGOD DATED 12.0.2018
ANNEXURE II	A TRUE COPY OF THE OBJECTION FILED BY THE SPECIAL PUBLIC PROSECUTOR AGAINST ANNEXURE I PETITION BEFORE THE COURT OF ADDITIONAL SESSIONS JUDGE II, KASARGOD DATED 19.04.2018
ANNEXURE III	A TRUE COPY OF THE ORDER IN CRL.MP.NO. 1228/2018 PASSED BY COURT OF ADDITIONAL SESSIONS JUDGE II, KASARGOD DATED 20.4.2018
ANNEXURE IV	A TRUE COPY OF THE PROCEEDINGS SHEET IN SC.NO. 307/2008 ON THE FILES OF COURT OF ADDITIONAL SESSIONS JUDGE II, KASARGOD

K.G. Kishorkumar @ Kishorkumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

K.G. Kishorkumar @ Kishorkumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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