K. Thilagavathy vs The Inspector of Police, Thirukokarnam

This Criminal Original petition has been filed by the petitioner/wife of the deceased, namely, one Karthikeyan who was murdered on

02.07.2009 allegedly by the accused, namely, Naagu @ Naagendran and the respondents 2 to 12.

The case has been registered against 13 accused for the offences under Sections 147, 148, 149, 323, 427, 506(ii) and 302 of I.P.C., and after

investigation it was committed in S.C.No.152 of 2011 on the file of the Additional District and Sessions Judge, Pudhukottai. Prosecution witnesses

listed are shown in the typed set. During the pendency of the trial, first accused Mr.Naagu @ Naagendran died.

Suman is the eyewitness to the murder and he was examined as P.W.1. Before he could give evidence, the accused, namely, A-3 Panneer, A-4

Moorthy and A-8 Murugesan @ Murugan barged into Suman''s house in Kandharvakottai and forcibly abducted Suman in a Tavare car and they

forcibly obtained Suman''s signatures in blank papers at knife point and also threatened with dare consequences stating that he must turn hostile.

Left with no other option, P.W.1 Suman turned hostile on 03.04.2014, while giving evidence. Moreover, his signature alone was marked as

Ex.P.1. P.W.2 Saravanan and P.W.3 Venkatesan also turned hostile witnesses due to the threat of the accused. Therefore, the petitioner/wife of

the deceased preferred a complaint before the Deputy Superintendent of Police, Pudhukottai, about the kidnapping of P.W.1 Suman and a case

was registered in Crime No.127 of 2014 against the said persons for the offences under Section 363 and 506(ii) I.P.C. Moreover, the aforesaid

Suman submitted a petition before the learned Additional District and Sessions Judge, Pudhukottai, narrating his kidnapping and other events and

requested the Court to scrap his evidence recorded on 03.04.2014, when he turned hostile and requested to re-examine him in chief.

The petitioner contended that the Inspector of Police, at Kandharvakottai, is colluding with the accused and illegally detained P.W.1 on

08.04.2014 and threatened him to state that the petitioner filed the kidnapping case in Crime No.127 of 2014 only at the instance of one

Annamalai and Sathanur Shiva. Further P.W.1 Suman also sent copies of letter, dated 08.04.2014 to the higher authorities including the

Superintendent of Police, Pudhukottai District. Further another representation was also given by the petitioner to the Superintendent of Police,

Pudhukottai, for giving adequate police protection.

As the learned District Judge was allegedly biased against the prosecution witnesses, he had not taken any action on the representation of

Suman, dated 08.04.2014. Hence, the petitioner filed Crl.O.P.(MD)No.7737 of 2014 to transfer the Sessions case to some other Court.

In the meanwhile, P.W.1 Suman filed a petition in Crl.O.P. (MD)No.8223 of 2014 before this Court to scrap his evidence deposed by him on

03.04.2014 in S.C.No.152 of 2011 and to treat the petition dated 08.04.2014, as a petition filed under Section 311 of Cr.P.C., to recall and re-

examine him. By a common order dated 03.07.2014, this Court disposed the above petitions directing the trial Court to suo motu recall P.W.1

and examine and also directed the respondent police to provide police protection to all the witnesses.

When the matter came up before the trial Court on 21.07.2014, a petition to recall and re-examine P.W.1 as per the direction of this Court was

presented and the same was refused to be received by the learned Judge. Without examining P.W.1, the learned Judge examined the petitioner as

P.W.9 on 23.07.2014. In spite of the orders passed by this Court on 03.07.2014, directing the trial Court to suo motu recall P.W.1, the learned

Judge refused to recall P.W.1, namely, Suman. Therefore, the present Transfer petition has been filed.

Even though the petition is a transfer petition, to give a finality to the issue of recall P.W.1 and to scrap P.W.1''s evidence, the parties advanced

argument regarding scraping of earlier P.W.1''s evidence and recalling P.W.1, this Court decides the said issue on merits.

Heard, Mr.C.Arul Vadivel @ Sekar, learned counsel for the petitioner and Mr.A.P.Balasubramaniam, learned Government Advocate(Crl.Side)

for the respondents 1, 13 to 15 and Mr.T.Vadivelan, learned counsel for the respondents 2 to 12.

Mr.C.Arul Vadivel @ Sekar, learned counsel for the petitioner would submit that the said recall petition has been filed only in the above

peculiar circumstances. As already stated that the petitioner has got every right to examine even a fresh evidence or P.W.1 is recalled. It is always

open to them discredit or impeach the evidence to be recorded by P.W.1. He also submitted that there is a direction from this court and

accordingly the eyewitness, namely, P.W.1 Suman, should be examined after scraping the evidence given by him already as it was deposed under

threat. However, Mr.T.Vadivelan, learned counsel for the respondents 2 to 12 would oppose the scrapping of the evidence already recorded and

recalling P.W.1 and the attempt made by the petitioner is to get over the admissions made by P.W.1, and to fill up Lacuna when he was examined

earlier. Mr.A.P.Balasubramaniam, learned Government Advocate would submit that the prosecution is ready to complete the trial at the earliest.

It is not for the first time, the petitioner makes the complaint regarding the threat of the accused against P.W.1, when he was examined as

witness. The petitioner also sent representations to the various authorities about the kidnapping of P.W.1 and under coercion he turned hostile. It is

the specific case that P.W.1 Suman was kidnapped by the accused Nos.3, 4 and 8 and a complaint was given in Crime No.127 of 2014 for the

offence under Section 363 and 506(ii) I.P.C, though the case had been closed as mistake of fact. The case of the prosecution is based on the

eyewitnesses, namely, P.W.1, P.W.2 and P.W.3. Hence, the petitioner filed a petition in Crl.O.P.(MD)No. 8223 of 2014 before this court for a

direction to trial Court to scrap the evidence deposed by P.W.1 on 03.04.2014 and to treat the petition dated 08.04.2014 as a petition filed under

Section 311 of Cr.P.C., to recall and examine him.

This Court by order dated 03.07.2014 disposed of the petition in Crl.O.P.(MD)No.7737 of 2014 filed by the petitioner to transfer the case

and Crl.O.P.(MD)No.8223 of 2014 filed by the petitioner to scrap the evidence of P.W.1 as it was recorded under threat, this Court passed the

following order:-

(ii) Since P .W.1 has 1 and examine and during the examination of this witness or another witnesses including the victim''s wife, the present trial

Court may order adequate victim''s witness protection, to the respondent police to provide such protection.

A perusal of the above order would make it very clear that this Court instead of waiting for a petition either from the petitioner herein, namely, the

defacto complainant or P.W.1, directed the trial Court to recall P.W.1 suo motu and also directed police protection to all the witnesses. The said

order makes it very clear, this Court was convinced that there was a threat to the witness and the petitioner turned hostile due to kidnapping and

threat and therefore, this Court directed to suo motu recall P.W.1. In this case, P.W.1 to P.W.3 already turned hostile and therefore, necessarily

P.W.1 has to be examined as per earlier order passed by this Court on 03.07.2014 in view of kidnapping of P.W.1, and deposing evidence as

hostile witness earlier. The earlier order of this Court would only go to show that this Court agreed with the submission made by the petitioner that

P.W.1 turned hostile under threat. Moreover, this Court''s order dated 03.07.2014 attained finality. Hence, the trial Court is bound by the same

and it could not violate this Court''s order. Therefore, as directed by this Court on 03.07.2014, the trial Court is directed to recall P.W.1 under

Section 311 of Crl.P.C., and to re-examine him by scraping the evidence given by P.W.1 before the trial Court already on 03.04.2014.

No prejudice is caused to the accused, if the earlier evidence is scraped as it is the right of the accused to cross examine P.W.1 based on his

new evidence which is going to be recorded once again. If the accused wants to retain the earlier evidence of P.W.1, which according to the

petitioner was obtained under threat, the objections of the accused to scrap would support the contention of the petitioner that P.W.1 was

threatened and coerced to give evidence earlier.

Though the petition has been filed under Section 311 of Cr.P.C., for transfer making allegations against the Judicial Officer, this Court moulds

the prayer and gives appropriate directions in the interest of justice. It is also stated that the Judicial Officer was already transferred and new officer

has taken charge and therefore, the question of transfer does not arise. With regard to relief sought for by the petitioner is concerned, the following

directions are issued:

P.W.1 is directed to be recalled and examined under Section 311 of Cr.P.C by the learned Additional District and Sessions Judge, Pudukottai.

The earlier evidence adduced by P.W.1 on 03.04.2014 is directed to be scrapped.

All the witnesses including are directed to be given protection by the police, as per the earlier order dated 03.07.2014 passed in Crl.O.P.

(MD)No.7737 of 2014 and Crl.O.P.(MD)No.8223 of 2014.

The learned Additional District and Sessions Judge, Pudhukottai, is directed to dispose of the matter on or before 30.04.2017 and co-operate

with them.

As it is stated by both the parties, the matter is adjourned on 10.02.2017 and on which date P.W.1 shall be examined afresh and the accused

are directed to co-operate with the trial Court to dispose of the case on or before 30.05.2017.

Though the petition is disposed of with the above directions, as far as the petitioner and the respondents 1 to 12 are concerned, the petition is

kept pending for passing appropriate directions with regard to witness protection. Post for passing further orders.