NIKHILDAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The order dtd. 18/11/2023 of the Additional Sessions Court, Irinjalakuda, in CMP No.283/2023 in S.C.No.823/2021, disallowing the request of the accused Nos.2 and 5 in the said case to summon the Judicial First Class Magistrate concerned, who recorded the statement of PW3 under Sec. 164 of the Code of Criminal Procedure, 1973(in short, 'Cr.PC'), is under challenge in this petition filed under Sec. 482 Cr.PC.

(2.) The aforesaid case relates to the murder of a lady, who was the aunt of PW3. PW3, the eyewitness to that incident, was aged only 15 years at the time of incident. At the time of investigation, his statement was recorded by the Judicial Magistrate concerned, under Sec. 164 Cr.PC. During the course of trial before the Sessions Court, PW3 gave evidence about the act of accused Nos.1 to 3 mounting physical assault upon the deceased by slashing her with a dagger, stabbing with knife and exploding hand grenade. He was cross-examined at length by the learned counsel for the accused. However, no contradictions were marked. At the time of defence evidence, the accused sought to examine the Magistrate who recorded the statement of PW3 under Sec. 164 Cr.PC. The above request was rejected by the learned Additional Sessions Judge, mainly for the reason that, in respect of the previous statements given by the above witness to the learned Magistrate, no contradictions were marked at the time of cross-examination of PW3. Another reason cited by the learned Additional Sessions Judge was that the improvements made during cross-examination of the witness cannot be portrayed as material omissions, and hence the examination of the learned Magistrate was not required for proving omissions amounting to contradictions. Aggrieved by the above rejection of the request of the accused for the examination of the Judicial First Class Magistrate, Kodungallur, as a defence witness, the petitioners/accused Nos.2 and 5 are before this Court with this petition.

(3.) Heard the learned counsel for the petitioners, Adv. Mr John S. Ralph, the learned Amicus Curiae and the learned Public Prosecutor representing the State of Kerala.