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HIGH COURT OF KERALA
K.HARIPAL, J
THE STATE OF KERALA – Appellant
Versus
RASHEED – Respondent
Crl.MC 5713 2020
Quash - Criminal Procedure - Cr.P.C. Section 311, 90(1) - The court allowed applications under Section 482 of the Cr.P.C. to recall witnesses for the essential marking of documents related to ownership and possession in proving criminal charges, reaffirming the necessity of evidence for just decision-making.
Fact of the Case:
The respondent faced allegations under the Arms Act for possessing a country-made gun found in an apartment bought in his wife's name. Applications were filed to recall witnesses to mark evidence related to the ownership of the apartment, which the initial court dismissed as an attempt to fill a prosecution lacuna.
Finding of the Court:
The court found that recalling the witnesses was essential for establishing the ownership and possession crucial to the case. The dismissals of the applications were deemed erroneous, as they hindered a just decision, negating claims of filling lacunae.
Issues: The key issues included whether recalling the witnesses to mark essential documents was warranted for a just decision and whether doing so constituted an improper attempt to fill a prosecution gap.
Ratio Decidendi: The court determined that the critical question was about the possession of the gun, requiring proof of ownership of the property from which it was seized, hence validating the necessity to recall witnesses.
Final Decision: Both petitions were allowed, and orders dismissing the applications to recall witnesses were quashed.
ORDER
These are petitions filed under Section 482 of the Code of Criminal Procedure moved by the State. Crl.M.C. No. 5713/2020 is filed seeking to quash the order dated 09.11.2020 in Crl.M.P. Nos. 4695/2020 in C.C. No. 1427/2018 of the Judicial First Class Magistrate – II, Thrissur whereby the court declined an application filed under Section 311 of the Cr.P.C. for recalling a witness, PW5. Similarly, Crl. M.C. No. 5716/2020 is challenging the correctness of the order passed by the Judicial First Class Magistrate Court – II, Thrissur in Crl. M.P. No. 4968/2020 in the same case, C.C. No. 1427/2018, whereby the court dismissed an application filed under Section 311 of the Cr.P.C for recalling PW3 and mark the arrest memo in Crime No. 553/2016.
2. The facts can be stated first. The respondent faces allegations under Sections 25 (1)(a) of the Arms Act , 1959 alleging that he was found in possession of a country made gun, four bullets etc., in an apartment in the ownership of his wife. In order to prove the sale deed executed in favour of the wife of the respondent, the vendor of the apartment was examined as PW5.
He deposed that he had sold the apartment to the wife of the respondent in 2016; even though a copy of the sale deed was reportedly handed over to the Investigating Officer, that was not among the case records and it could not be marked through PW5. Thus, the Assistant Public Prosecutor moved an application under Section 311 of the Cr.P.C. for recalling the witness and also to issue summons under Section 90 (1) of the Cr.P.C. to produce a certified copy of the sale deed. That application was strongly opposed by the respondent/accused and by the impugned order dated 09.11.2020, the learned Magistrate dismissed the application. According to the learned Magistrate, it is an attempt to fill up the lacuna created by the prosecution which is bad.
3. I heard the learned Senior Public Prosecutor representing the petitioner and also the learned counsel for the respondent. According to the learned Senior Public Prosecutor, the gun was seized by the Investigating Officer, while the respondent was taken into custody in connection with Crime No. 553/2016 of Thrissur West police station. The respondent was arrested for the case on 23.03.2016 and was taken into custody on 28.03.2016. During the course of interrogation, he confessed having obtained a country made gun which was reportedly concealed in the kitchen of Flat No. 603, which was purchased by him in the name of his wife Shyama from PW5. But when PW5 was examined for the case, the certified copy of the sale deed was not available. According to the learned Public Prosecutor it is a very material piece of evidence. Unless it is marked, the prosecution would not be able to say that the apartment was in his own possession. According to learned Public Prosecutor, it was the respondent who purchased the property in the name of his wife and the gun and bullets were recovered under Section 27 of the Evidence Act on the basis of the information supplied by the appellant while he was interrogated in custody and therefore, marking of such a document is absolutely essential and it has to be marked through the vendor itself.
4. The respondent has opposed the M.C. According to the learned counsel, such a sale deed is a fabricated document.
No such document was seized during investigation, no reference has been made about such a document in the charge sheet. Even though, PW5 had handed over a certified copy of the document to the Investigating Officer that does not form part of the prosecution records. The statement of PW5 stands discredited in cross examination. He did not have any idea about the location of the said apartment, he could not even name the building, he does not know the road leading to the apartment etc. Therefore, it is clearly an attempt to fill up the lacuna.
5. The respondent is a life convict. He is the accused in Crime No. 553/2016 of Thrissur West police station whereund
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