ANIL MON THOMAS Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) Criminal M.C. 3265 of 2011 is the petition filed by the witnesses under S. 482 Cr.P.C. to quash Annexure - 3 order dated 31.8.2011 passed by the III Additional Sessions Judge, Ernakulam. Criminal M.C.3449/2011 is the petition filed by the second accused in that sessions case who also seeks quashment of Annexure - 3 order dated 31.8.2011. The petitioner in Criminal M.C.3265/II was examined before the Court below in the aforesaid sessions case as PW12. The charge sheet in that case was laid alleging that the accused murdered a boy after subjecting him to carnal intercourse against the order of nature. The accused therein was arrested on 10.2.2010. His bail application was dismissed by the Trial Court as well as by this Court on several occasions. An observation was made by the Trial Court in Criminal M.P. 23.9.2010 that if the trial was not completed before 10.2.2011 the accused could apply for bail again. But in the meanwhile, the bail application filed by him was already dismissed by this court on 15.10.2010 observing that the accused is not entitled to get bail considering the nature of the allegation, conduct of the parties, nature of injuries sustained, sentiments of the near relatives of the victim and such other facts. However, in view of the observation made by the trial court in Criminal M.P.2390/11 the accused filed application for bail. It was allowed on 1.3.2011.

(2.) It was observed by the court below that the petitioner was examined on 12.1.2011 as PW12. He narrated the entire incident, the true facts, before the court in spite of the efforts made by the interested parties to persuade him to speak otherwise. It is also observed by the learned Sessions Judge that PW 12 was throughly cross-examined by the defence counsel on 12.1.11. It could be discerned that as the evidence given by PW12 was against the accused, every effort was made by the accused subsequently also to win over that prosecution witness. PW 13 was another witness who could be won over by the accused. PW 13 also filed an application as Criminal M.P. No.3160/11 before the trial court to recall her in order to retract the evidence given by her on oath before the court. An affidavit was also prepared for that purpose. It could be noticed by the learned Sessions Judge that a complaint was also filed by her (PW13) before the Central Police Station on 24.1.11 alleging that the investigating officer had coerced and threatened her to give evidence before the court.

(3.) PW31, the Investigating Officer was examined in chief on 21.1.2011. He was not cross-examined on that date but sought adjournment for cross-examination. On 28.1.11, an application was filed by PW 13 to allow her to be recalled. She remained absent. Her application to recall herself for further examination was not allowed. Another application was filed on behalf of the accused to recall PW13 as Criminal M.P. 3160/11 under S. 311 of Cr.P.C. Both petitions were dismissed by the learned Sessions Judge as per common order dated 10.2.2011. After the prosecution evidence was closed, a list of the witnesses was filed by the accused on 17.2.2011 to examine them as defence witness. Out of them the first witness was PW 12 who had already been examined, cross-examined and re-examined in full. Realising that the petition will not be allowed that witness list was subsequently withdrawn by the accused but another witness list was filed by the defence on 07.03.2011 in which PW 13 was shown as the first defence witness and PW 12 was shown as the 4th witness. That defence list was also subsequently withdrawn by the learned counsel for the accused.