RADHANANDAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The sole accused is challenging his conviction and sentence for murder by the Additional Sessions Judge, Alleppey. After the prosecution evidence was over, he was called upon to enter on his defence and adduce evidence under S.233 of the Code of Criminal Procedure. On his application, summons was issued to a witness to produce a document and give evidence. The witness appeared with the document. At that time, Public Prosecutor objected to his examination and proof of the document on the ground that it will offend S.153 of the Evidence Act. The objection was upheld by a non speaking order. The case was heard and he was convicted without defence evidence being permitted. This was taken as a preliminary ground before the appeal was argued on merits.

(2.) Every accused is entitled to a fair trial, which includes opportunity for adducing his own evidence also. That is his right if he is not acquitted under S.232 on the ground that the judge considers that there is no evidence that he committed the offence. In such a situation, it is mandatory that he should be called upon to enter on his defence and permitted to adduce oral and documentary evidence of his choice. On his application, the court has the duty to issue process and secure witnesses, documents or things. The choice in this respect is solely on him. Calling the accused to enter on his defence is not an empty formality. Its omission will be fatal to the prosecution and the conviction will be bad. The application of the accused for issue of process for compelling the attendance of any witness or the production of any document or thing cannot be rejected by the court as unnecessary. The discretion of the court to reject such an application under S.233(3) is only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Subject to those restrictions, the accused is having the unfettered right to have any witness, document or thing summoned. Entering on defence and adducing evidence marks a special stage in and is an essential part of a criminal trial. If that chance is denied, it cannot be said to be fair trial. The restrictions on the grounds of vexation, delay or defeating the ends of justice are not available in this case.

(3.) Then the only question to be considered is whether the Sessions Judge was justified, under S.153 of the Evidence Act, in denying the opportunity for evidence. PW.1 is a relative of the man, for whose murder the appellant was tried and convicted. He is the first informant and an occurrence witness also. The occurrence was at 8.45 p.m. The prosecution case and the evidence of PW.1 is that he happened to witness the occurrence when he was returning home after attending a meeting of the temple committee, in which he is a member. The case of the appellant is that the meeting was continuing even at 8.45 and since PW.1 was attending that meeting, he had no occasion to witness the incident and he was giving false evidence. He was confronted with this fact and he said that he saw the incident. The witness sought to be examined is the Secretary of the committee and the document sought to be proved is the minutes of the meeting. The purpose is to prove that what PW.1 said in the box is wrong. The question whether the appellant could successfully prove that fact is not relevant. What is relevant is whether he is entitled to adduce the evidence.