DENNY VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) THE newly added 3rd accused in C.C. No. 922/2010 on the file of the Judicial First Class Magistrate Court, Kayamkulam, has filed this revision, challenging the order implicating as accused as per the order in C.M.P. No. 3546/2013.

(2.) THE case was registered on the basis of the statement given by the injured/defacto -complainant/against three accused persons including the revision petitioner, alleging offence under Section 447, 323 and 294(b) read with Section 34 of the Indian Penal Code. After investigation final report was filed, confining to two accused alone, deleting the present revision petitioner from the array of accused. Two accused persons against whom final report was filed and after framing charge trial against them was proceeded with. P.Ws. 1 to 7 were examined and during the course of trial, the involvement of present petitioner was also brought out and when the de facto -complainant came to know that, the present revision petitioner has been deleted from the party array, he filed C.M.P. No. 3546/2013 for impleading the present revision petitioner also as additional accused, invoking the power under Section 319 of the Code of Criminal Procedure and after considering the allegations and the evidence, learned magistrate allowed the application and the present revision petitioner was arrayed as 3rd accused and summons was issued to him. On receipt of the summons, the petitioner challenged that order by filing this revision.

(3.) THE counsel for the revision petitioner submitted that, court below had not applied its mind properly. In fact, the evidence of prosecution witnesses has not been discussed by the court below, before coming to the conclusion that, there is evidence sufficient for the purpose of implicating the present revision petitioner as additional accused, invoking the power under Section 319 of the Code of Criminal Procedure. Further, the present revision petitioner was shown as 3rd accused in the first information report and on the basis of the additional statements given by the witnesses including the de facto -complainant and other injured, his name was deleted on the ground that, he was not present at the time when the alleged incident happened and that report was accepted by the court and so court below is not justified in changing that view, on the basis of the evidence now available and the evidence is also not consistent and not sufficient for conviction. He had relied on the decisions reported in Biju Gopalan and Another v. State of Kerala and Others (2009 KHC 421) and Ram Singh and Others v. Ram Niwas and Another [ : (2009) (14 S.C.C. 25)] and Sarabjit Singh and Another v. State of Punjab and Another ( : AIR 2009 (S.C.) 2792) in support of his case.