IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 1^ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 CRL.MC NO. 3908 OF 2017 CRIME NO.263/2011 OF ERAVIPURAM POLICE STATION, Kollam AGAINST THE ORDER 30.03.2017 IN SC NO.476 OF 2012 OF ADDITIONAL ASSISTANT SESSIONS COURT, KOLLAM PETITIONER/ADDITIONAL 4TH ACCUSED:

SAJAI KUMAR A G @ MANAKKAD SAJI, AGED 49, S/O.GOPALAKRISHNAN, KARTHIKA, MANAKKADU, VADAKKEVILA P.O., KOLLAM-691010.

BY ADV SRI.B.SURESH KUMAR RESPONDENTS/STATE & DEFACTO COMPLAINANT:

1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE INSPECTOR OF POLICE, PARAVUR (SUB INSPECTOR OF POLICE, ERAVIPURAM POLICE STATION), KOLLAM-691011.

2 RAJESH KUMAR S/O.HARIDASAN, THUNDUVILA VEEDU, NALANDA NAGAR 221, AYATHIL P.O., KOLLAM-691017.

BY ADV SRI.M.KIRANLAL OTHER PRESENT:

SRI.SANGEETHARAJ.N.R, PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

P. V. KUNHIKRISHNAN, J.

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Crl.M.C.No.3908 of 2017 ------------------------------------------- Dated this the 1^st day of August, 2024

ORDER

The petitioner is aggrieved by Annexure-A10 order passed by the Additional Assistant Sessions Judge, Kollam in Crl.M.P.No.216/2016 in S.C.No.476/2012.

2. S.C.No.476/2012 pending before the Additional Assistant Sessions Judge, Kollam is charge sheeted by the Sub Inspector of Police, Eravipuram Police Station against three persons namely, Shibu, Sudevan and Baiju for the offences punishable under sections 341, 323, 324 and 308 r/w 34 of the Indian Penal Code.

3. The prosecution case is that, on 09.03.2011 at

10.30p.m., the accused persons with the intention to commit culpable homicide of Charge Witness No.1 reached near Kochu Koonampayikulam Sarpakavu and the 1^st accused forcefully hit on the stomach of the Charge Witness no.1 causing him to fell down. While so, the 2^nd and 3^rd accused kicked him and when Charge Witness no.1 tried to escape, the 2^nd and 3^rd accused wrongfully restrained him and the 1^st accused stabbed the Charge Witness No.1 with a knife to commit culpable homicide. Hence it is alleged that the accused committed the offences.

4. According to the petitioner, due to rivalry between the two factions, the defacto complaint stated in the First Information Statement of the above case that the petitioner also wrongfully restrained the victim along with the 2^nd and 3^rd respondent to facilitate the 1^st accused to stab Charge Witness No.1. The petitioner was originally arrayed as the 2^nd accused in the case. After investigation, the police filed a report as evident by Annexure-A1 excluding the petitioner from the array of accused. After completing the investigation, the Sub Inspector of Police filed a final report. Annexure-A2 is the final report. Based on the final report, the original accused appeared before the trial court and the trial started. Charge Witness No.1 was examined as PW1 on 07.10.2016. Charge Witness No.2 and 3 were also examined as PWs.2 and 3 on 13.12.2016 is the submission. CWs 4 to 6 were examined as PWs.4 to 6 on 20.12.2016. Annexures-A3 to A8 are depositions of PWs.1 to 6.

It is submitted that, PWs3 to 6 did not support the prosecution case. After examination of the defacto complainant, the defacto complainant filed a petition under Section 319 Cr.P.C. stating that the petitioner herein was wrongfully excluded and he came to know about the same only on 01.12.2016 when he received summons to give evidence in this case. Annexure-A9 is the petition filed by the defacto complainant under Section 319 Cr.P.C. The court below allowed Annexure-A9 and arrayed the petitioner as additional 4^th accused and issued summons. Anneuxure-A10 is the order. Aggrieved by the same, this Crl.M.C. is filed.

5. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

6. This Court perused Anneuxures-A9 and A10. The

2^nd respondent, who