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HIGH COURT OF KERALA
B.SUDHEENDRA KUMAR, J
P GANGADHARAN – Appellant
Versus
STATE OF KERALA – Respondent
CRIMINAL REVISION PETITION 2057/2006
IPC - Criminal Conviction - IPC Sections 341, 323, CrPC Section 319, Section 138 - Court emphasized that a fresh trial is mandatory when new accused are added, and examination-in-chief must precede cross-examination; the failure to do so warranted the acquittal of the fifth petitioner while upholding the conviction of the others.
Fact of the Case:
The accused were charged under IPC sections 341 and 323 for wrongfully restraining and assaulting the victim. After several procedural developments, including the addition of a fifth accused, the trial court convicted and sentenced them, which was upheld on appeal, prompting this revision petition.
Finding of the Court:
The court ruled that due process was violated because the fifth accused was not afforded a proper de novo trial and that critical preliminary examination of witnesses did not occur post-impleading, leading to the conclusion that their convictions could not stand.
Issues: Whether the trial courts properly conducted proceedings after the addition of the fifth accused and if the preceding testimonies were admissible against him.
Ratio Decidendi: The court held that under Section 319 of the CrPC, the addition of a new accused mandates a fresh trial with re-examination of witnesses to ensure fairness, which was not adhered to in this case.
Final Decision: Partial allowance of the revision petition; conviction of the five accused modified, acquittal of the fifth accused.
ORDER
The revision petitioners are accused in C.C. No.195 of
1995 on the files of the Court of the Judicial Magistrate of First Class-I, Hosdurg. The courts below convicted the revision petitioners under sections 341 and 323 read with section 34 IPC and sentenced them to simple imprisonment for three months each under section 323 read with section 34 IPC and simple imprisonment for 15 days each under section 341 read with section 34 IPC with a direction that the sentence shall run concurrently. Aggrieved by the said conviction and sentence, this revision petition has been filed.
2. Heard both sides.
3. The prosecution allegation is that on 05.08.1994 at about 10.00 p.m., the accused Nos. 1 to 4, in furtherance of their common object, wrongfully restrained PW2 at Kunnummel junction and thereafter, the 2nd accused inflicted injuries on the face of PW2 with a granite stone. Accused Nos.1,3 and 4 beat PW2 with hands. They also kicked him, causing injuries on him.
4. After complying with the legal formalities, charge for the offence under Sections 341 and 323 read with Section 34 IPC was framed against accused Nos. 1 to 4. They pleaded not guilty and claimed to be tried. In the trial, PW1 to PW6 were examined and Exts.P1 to P4 were marked for the prosecution. Ext.D1 was marked for the defence during the cross-examination of PW2. Thereafter, the case stood posted to 04.10.2001 for the examination of revision petitioner Nos.1 to 4 under section 313 of the Code. On that day, the revision petitioner Nos. 1 to 4 were examined under Sec.313 of the Code by the court below. Thereafter, the court below impleaded the 5th revision petitioner as the accused in the case on 28.11.2001 invoking Sec.319 of the Code, on the basis of the evidence given by PW2 and PW3.
5. The 5th revision petitioner appeared before the trial court in response to the summons issued from the court. The trial court framed the charge for the offence under Sections 341 and 323 read with Section 34 IPC against the 5th revision petitioner on 18.11.2002. The 5th revision petitioner pleaded not guilty to the charge and claimed to be tried. Thereafter, PW1 to PW3, PW5 and PW6 were recalled to enable the 5th revision petitioner to cross- examine them. PW4 was not recalled stating that there was no request for the same from the 5th revision petitioner. After completing the cross-examination, the 5th revision petitioner was examined under Sec.313 of the Code. After complying with the legal formalities, the Court posted the case for hearing. After hearing both sides, the court passed the judgment convicting and sentencing the revision petitioners as stated above. Against the said conviction and sentence, appeal was filed. The appeal was dismissed as per the judgment in Criminal Appeal No.201 of 2004 dated 25.04.2006 confirming the conviction and sentence passed by the trial court.
6. It has been submitted by the learned counsel for the revision petitioners that after impleading the 5th revision petitioner as the 5th accused in the case, no de novo trial was conducted as mandated under the provisions of section 319 of the Code. It has been further submitted by the learned counsel for the revision petitioners that the 5th revision petitioner was granted opportunity only to cross- examine the witnesses whose evidence was recorded prior to the arraying of the 5th revision petitioner as the accused in the case. In the said circumstances, the conviction and sentence passed by the courts below cannot be sustained, submitted by the learned counsel for the revision petitioners. The records would show that the trial court did not record the examination-in-chief of PW1 to PW3, PW5 and PW6 after impleading the 5th revision petitioner as the accused in the case. After the impleading of the 5th revision petitioner as accused, PW1 to PW3, PW5 and PW6 were recalled and the 5th revision petitioner was permitted to cross-examine them. In this context, it is relevant to understand section 319 of the C
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