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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.ASHOK KUMAR
Hariharan & Others - Appellant
Versus
State by Deputy Superintendent of Police CB CID - Respondents
Crl.R.C.NO.1795&1796 OF 2003& Crl.M.P.No.11660&11661 of 2003.
Decided On : 16 December 2003
P.W.10 Venugopal - Criminal Conspiracy - 120B IPC, 365 IPC, 387 IPC, 419, 420 and 387 r/w 109 IPC, 302 IPC, 347 and 364 IPC, 201 IPC - The court discussed the application of Section 319 of Cr.P.C. to add P.W.10 Venugopal as an accused in the case, the protection of witnesses under the proviso to Section 132 of the Indian Evidence Act, and the caution necessary in evaluating accomplice evidence.
Fact of the Case:
The petitioners sought to add P.W.10 Venugopal as an accused in the case, contending that his actions indicated an agreement to participate in the conspiracy. The trial court dismissed the petitions, stating that P.W.10's evidence was protected by the proviso to Sec.132 of the Indian Evidence Act.
Finding of the Court:
The court analyzed P.W.10's actions and the legal provisions related to adding a person as an accused under Section 319 of Cr.P.C. It concluded that P.W.10's incriminating evidence was protected under the proviso to Section 132 of the Indian Evidence Act and should be viewed with caution, similar to accomplice evidence.
Issues: The key issue was whether P.W.10 should be added as an accused under Section 319 of Cr.P.C. and the protection of witnesses under the proviso to Section 132 of the Indian Evidence Act.
Ratio Decidendi: The court held that P.W.10's incriminating evidence was protected under the proviso to Section 132 of the Indian Evidence Act and cautioned that if he was added as an accused, the case might lack evidence against the other accused. The court emphasized the need for caution in evaluating P.W.10's evidence, similar to the evidence of an approver.
Final Decision: The court dismissed the revisions, affirming that P.W.10's incriminating evidence was protected under the proviso to Section 132 of the Indian Evidence Act and should be viewed with caution, and that adding P.W.10 as an accused might lead to a lack of evidence against the other accused.
Criminal Revision Case No.1795 of 2003 has been filed by one Hariharan who is A-2 in the Sessions Case No.87 of 2003 on the file of the Additional District and Sessions Judge (Fast Track Court No.1), Chennai and Accused Nos.11, 16 and 17 in the above S.C.No.87/2003 viz., one Sampath, Gunasekaran @ Guna and Naraimudi Ganesan @ Ganesan have filed Criminal Revision Case No.1796 of 2003.
2. The above four revision petitioners and 14 others are facing trial before the Additional District and Sessions Judge (Fast Track Court No.1) Chennai in S.C.No.87 of 2003. The charges framed against the said accused persons in the above case are as follows:
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Charge No. and against whom Offences
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1.A1 to A18 120B IPC
2.A4,A7,A10,A11,A14,A15, A16 and A17 365 IPC
A1,A12,A3,A5,A6,A8,A9,A13 and A19 365 r/w 109 IPC
3.A1 to A11, A14 to A18 387 IPC
4.A-12 419, 420 and 387 r/w 109 IPC
5.A3,A4,A6 to A8, A10,A11, A14 to A18 302 IPC
6.A3 to A11, A13 to A18 347 and 364 IPC
A1,A2 & A12 347 r/w 109 &364 r/w 109 IPC
7.A3,A5 to A8, A10,A11 &A13 to A18 201 IPC
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The trial of the case started and witnesses P.W.1 to P.W.9 have been examined. P.W.10 Venugopal was examined by the prosecution in chief. According to the petitioners, a plain reading of the chief examination of P.W.10 Venugopal clearly established that he participated in the alleged crime from the beginning to the end and thereafter he absconded for nearly four months and subsequently he appeared on 1.5.2001 before the respondent who in turn recorded his statement under Section-161 Cr.P.C. As per his evidence in Court, he was fully aware of the object of the conspiracy and other allied offences committed by himself and other persons. His evidence further reveals that he procured the premises for the commission of the crime, provided his household articles in the premises for commission of the crime, gave his car on hire to the accused persons, financed to the alleged accused persons, witnessed the deceased who was chained in that premises, witnessed the body of the deceased, booked rooms in his name in the hotels for stay of the accused persons and paid the hotel bills which will categorically establish that PW10 Venugopal is a "particepes criminis" (a partner in crime). The respondent is fully aware that PW10 Venugopal is one of the co-accused in the alleged crime but for the reasons best known to them, he was not arrayed as an accused in the case. The respondent relied upon the said witness's self-incriminating statement recorded under sections 161 and 164 Cr.P.C., and cited him as witness in the charge sheet. If the respondent wanted to examine the said person as a witness, the respondent ought to have given a requisition to the Chief Metropolitan Magistrate, Chennai to record his confession under Section-164 Cr.P.C., and take him as an approver as contemplated under sections 306 and 308 Cr.P.C., But the respondent himself has acted as a Court and tendered pardon to the said person Venugopal and cited him as a prosecution witness to prove the case against the petitioners herein and others. In such circumstances, the petitioners filed petitions under Section-319 of Cr.P.C., before the learned Judge to implead witness P.W.10 Venugopal as accused in this case.
3. The respondent filed a counter wherein the respondent contended as follows: Whatever PW-10 has done in this case, he has done it for commission or to oblige A9 to get some big post in ADMK , that there are no materials as of now to hold that PW10 is one of the co-conspirators or actively participated with any mensrea. According to the respondent since P.W.10 is only a witness, there is no need to follow the procedure under Sections 305 to 308 Cr.P.C., Because o
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