'Complainant's No-Objection To Deletion Of Names Of Accused During Committal Stage Will Not Preclude Court From Invocation 319CrPC On His Evidence In Trial': AP HC

The AP High Court on Thursday held that a mere order passed by a committal Court accepting the deletion of names in the charge-sheet on the basis of the no-objection allegedly signified by the de facto complainant, would not come in the way of the trial Court in adding, under Section 319, Cr.P.C, the said names also as accused, in view of the categorical evidence given by the said complainant, being the eyewitness to the offence, during the course of trial.

The Court also ofound no merit in the contention that the de facto complainant 'will not be a reliable and a trustworthy evidence on account of the prevaricating statements given at various stages and the said evidence cannot be made basis for forming an opinion by the trial Court that these accused also committed the said offence', to invoke section 319.

Facts of the case

A man was murdered and his son, claiming to be an eye-witness to the offence, lodged a report with the Police stating that about eleven persons, including the 10 revision petitioners before the High Court, attacked the deceased with deadly weapons and committed the killing.

In the re-examination by the Investigating Officer, it is alleged that certain other eye-witnesses have eliminated the role of the revision petitioners in committing the said offence. Hence, The revision petitioners were not charge-sheeted.

After the charge-sheet was filed in the committal Court before the concerned Magistrate, the record reveals that notice was given to the de facto complainant, who is P.W.1, regarding deletion of names of the revision petitioners who were named in the FIR. It appeared that the de facto complainant has filed a Memo in the committal Court stating that he has no objection for deletion of the names of the said accused. Therefore, the Magistrate has committed the case for trial to the Court of Sessions only against accused 1 to 6 as the offence under Section 302 of IPC is exclusively triable by Court of Sessions.

The de facto complainant, who is the son of the deceased, was examined as P.W.1 during the course of trial before the trial Court. He has given a detailed account in his evidence as to how the revision petitioners also attacked the deceased with lethal weapons by giving specific overt acts against each of these revision petitioners in attacking the deceased and killing him. Therefore, he stuck to his guns as per the contents of FIR lodged by him with the Police.

The de facto complainant now disputed the fact that he has filed any such memo in the Court stating that he has no objection for deletion of the said names, contending that the Police has taken his signatures on blank papers and might have fabricated it as the memo.

Therefore, the Additional Sessions Judge held in the deposition that it is a fit case to initiate proceedings under Section 319 of Cr.P.C.

Aggrieved thereby, the criminal revision case assailing the legality and validity of the said order.

The High Court in the judgment considers whether the said Memo, even if true, would operate as a bar for invoking Section 319 of Cr.P.C by the trial Court or not.

Observations of the Court

Having regard to the historical background in incorporating Section 319 of Cr.P.C, coupled with the observations made by the Constitution Bench of the Apex Court in Hardeep Singh v. state of Punjab (2014), the High Court reiterated that "the whole idea behind incorporating it is that not to allow a person who deserves to be tried to go scot-free by being not arraigned in the trial inspite of possibility of his complicity in perpetrating the crime emanating from the evidence both oral and documentary adduced during the course of enquiry or trial of the case by the prosecution".

"As per the ratio laid down by the Supreme Court (in Kishore Prasad v. State of Bihar; 1996), the proceedings relating to committal of the case under Section 209 of Cr.P.C cannot be construed as an enquiry for the purpose of Section 319 of Cr.P.C. Therefore, even if any order accepting the deletion of names of the other accused mentioned in the FIR from the charge-sheet is passed, albeit on the alleged memo said to have been filed by the de facto complainant, it does not preclude the trial Court in any manner from considering whether the persons who are named in the evidence given before it during the course of trial are also to be added as accused or not", reflected the judge.

"When such is the law that an accused who was discharged previously and an accused against whom proceedings are previously quashed and a person against whom cognisance was not taken previously can also be added as an accused under Section 319 of Cr.P.C notwithstanding the said orders passed earlier, it is really beyond the comprehension of this Court as to how (it would not be so in the present case)", the bench further reflected.

As to the contracting statements of the de facto complainants, the bench reiterated that the fundamental tenet of Law of Evidence is that the statements given by the witnesses before the Police under Section 161 of Cr.P.C either at the first instance or in re-examination during the course of investigation is not an evidence and it has no evidentiary value. They can be used only to contradict the witnesses in so far as the evidence given by them in the Court is concerned, to find out the veracity of the testimony of the witnesses given in the course of trial and to find out whether the same is reliable and trustworthy, and the Court has to record a finding to that effect.. It is only the evidence given by the witness in the Court during the course of trial which is the substantive piece of evidence to adjudicate whether the accused are guilty of the offence or not.

"At the stage of considering the case under Section 319 of Cr.P.C, after it appears to the Court from the evidence adduced before it that other persons also committed the said offence, all that the Court has to see is whether the said evidence is sufficient to call the said accused for trial, leaving the aspect of appreciation of the said evidence to ascertain its veracity and trustworthiness to be decided in the final adjudication of the case...It is the objective satisfaction of the Court that is required ultimately to exercise the power under Section 319 of Cr.P.C against the other persons to add them as accused", the judge observed, relying on the decisions of the Supreme Court.

"A perusal of the evidence of P.W.1 given in the trial Court clearly shows that he has clearly and unequivocally and emphatically stated that these revision petitioners have also attacked the deceased with lethal weapons and caused injuries to him and killed him. He has given a vivid account regarding complicity of the revision petitioners in his evidence by giving individual overt acts of each of these ten revision petitioners regarding the manner in which they have attacked the deceased and killed him", appreciated the Court.

"The said evidence, if remains unrebutted, certainly will lead to conviction against the persons sought to be added as accused in this case. One should not ignore the fact that the said evidence given by P.W.1 in the Court during trial was given on oath and it is a substantive piece of evidence. If the said evidence ultimately remains unchallenged and if it is not impeached in any way, it would certainly be a valid evidence under law to hold that the revision petitioners are guilty of commission of the said offence", it further noted.

Accordingly, it arrived at the conclusion that more than a prima facie case and a strong case is made out against the revision petitioners who are sought to be added as accused in this case. Finally, the court stated that it is for the revision petitioners after they are added as accused to impeach the said evidence of P.W.1 after subjecting him to cross-examination. 

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