HARIHARAN Vs. STATE

JUDGEMENT

(1.) 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: <FRM>KIS28339.htm</FRM> 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 of the proviso to Sec.132 of the Indian Evidence Act, Section 319 Cr.P.C., cannot be resorted to placing a man on trial on his own evidence which is contrary to the traditions of justice in criminal courts. There is no other evidence as on date to show that PW10 is a co-conspirator or partner in crime, as the answers given by PW10 is protected under the proviso to Section 132 of the Indian Evidence Act and the same cannot be used as an item of evidence against him. These petitions have been filed only to protract the proceedings.