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2023 Supreme(Online)(KER) 6771
HIGH COURT OF KERALA
RAJA VIJAYARAGHAVAN, J
JOMON – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 3372/2023
OMAR SALIM, ASHISH ABY DAVID A.N., BIJU
A trial must ensure relevant evidence is reviewed comprehensively, but the lack of formal submission limits opportunities to recall evidence for review.
Headnote:
Evidence - Criminal Procedure - Section 293 Cr.P.C. - The court discussed the admissibility of evidence in criminal procedures, particularly focusing on the interpretation of Section 293 which allows forensic reports to be admitted without producing the source material, emphasizing the necessity of judicial evaluation of all evidence.
Fact of the Case:
The petitioner challenged a order rejecting the recall of the investigating officer and the playing of compact disks that allegedly would support the defense's case. The CDs contained evidence from a forensic report that was admitted but not yet played.
Finding of the Court:
The court found that the Sessions Judge's refusal was justified since the CD had not been marked as evidence, and the investigating officer was unaware of its contents. Additionally, the defense had not made sufficient use of opportunities provided for presenting evidence.
Issues: Whether the Sessions Judge erred in refusing to recall the investigating officer and play the CDs in court to assist the defense.
Ratio Decidendi: The court concluded that the trial's primary objective is discovering the truth through a full evaluation of evidence, but that retaking evidence without purpose was unwarranted since the material in question had not been formally admitted.
Final Decision: The petition is dismissed.
ORDER
This petition is filed challenging the order dated 13.04.2023 in C.M.P.No.450/2023 in S.C.No.328/2022 on the files of the Additional District Court and Sessions Court - III, Mavelikkara. By the aforesaid order, the learned Sessions Judge rejected the application filed by the petitioner to recall PW 40 - the investigating officer, and to play a compact disk which is produced along with the report submitted by the Forensic Science Lab as Ext. P93. The request of the petitioner to recall DW3 and play Exts.D15 and D17 CDs was also rejected.
2. Sri. Omar Salim, the learned counsel appearing for the petitioner, submitted that if the contents of the Compact Disk produced along with Exhibit P93 series as well as Exts. D15 and D17 are viewed by the Court, it would go a long way to establish the case of the defense. The above Compact Disks contain the videograph of the incident as it happened on the alleged date of occurrence. According to the learned counsel, as the documents have already been admitted in evidence, there is no justification on the part of the learned Sessions Judge in refusing to allow the application. He points out that since the accused is in custody, the defense would be seriously prejudiced if an opportunity as prayed for is not granted.
3. The learned Public Prosecutor has opposed the submissions.
According to the learned Public Prosecutor, Ext.P93 is the report of the Forensic Science Lab which was marked under Section 293 of the Cr.P.C. A compact disk of the contents of the electronic equipment, which is the subject matter of Ext.P93 was also forwarded along with. However, the CD which is sought to be played in the presence of the Investigating Officer has not been marked as evidence. It is further submitted that while PW 40 was in the box, a specific question was put by the learned counsel appearing for the petitioner as regards the identity of persons who were present in the building where the incident took place. It is borne out from the deposition of PW40 that he is unaware of the contents of the CD. According to the learned Public Prosecutor, in that view of the matter, no purpose would be served in recalling PW40 and in playing the CD in his presence. It is further submitted that in so far as DW3 is concerned, he was examined twice, and the defense has not utilized the opportunity. He would point out that, taking note of the fact that the petitioner has been in judicial custody, this Court had ordered a time-bound disposal. Based on instructions, it is submitted that evidence was closed as early as 17.01.2023, and the defense evidence was closed on 10.03.2023. It is further submitted that no purpose would be served in resummoning the investigating officer and the defense witness solely to play the compact disk in open court.
4. I have considered the submissions advanced. A copy of the application filed by the petitioner has not been produced along with this petition. The petitioner has also not produced a copy of the deposition of the witnesses to enable this Court to understand the grievance of the petitioner. What is stated in the application, a copy of which is handed across the bar, is that PW40 should be recalled, and the CD which came with Ext.P93 should be played in his presence. The other request is to recall DW3 and also for playing Exts.D15 and D17 CDs marked by the defense.
5. In so far as PW40 is concerned, as rightly submitted by the learned Public Prosecutor, while he was in the box, and when the contents of the CD were put to him, he had stated that he is not aware of the persons who are seen in the video. The said CD has also not been marked in evidence. In so far as DW3 is concerned, he is a witness cited by the defense itself. As it is borne out from the order passed by the learned court, ample opportunity was granted, and DW3 was also recalled twice.
6. From the submissions of the learned counsel, his grievance appears to be that the contents of the Compact Disk would go a long way in e
