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TMI Blog2015 (3) TMI 1417X X X X Extracts X X X X X X X X Extracts X X X X ..... le suddenly emerged and brutally attacked Vijayan @ Vijayakumar and he succumbed to the injuries instantaneously. 3. A case in Crime No. 618 of 2008 came to be registered with respect to the said incident at Abiramapuram Police Station, Chennai. A final report came to be filed against seven accused persons of whom the Appellant herein is one (A-5). All the seven accused are facing trial in Sessions Case No. 73 of 2009 on the file of the Principal Sessions Judge, Chennai. From the judgment Judgment dated 13.11.2014 passed by the High Court of Madras in Crl. R.C. No. 425 of 2014 under appeal, it appears: The trial Court has framed charges Under Sections 147, 148, 302 & 120-B Indian Penal Code. As many as 71 witnesses were cited in the final report. During trial, already 65 witnesses have been examined on the side of the prosecution and all such witnesses have been cross examined by the counsel appearing for the respective accused, except PW64. PW64 is one Shri L. Venkatesh, the 2nd Respondent in this revision petition. After the chief examination of PW64 (the 2nd Respondent herein) was over, the Petitioner herein filed a petition in Crl. M.P. No. 4188 of 2014 Under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d informed PW64 that the third accused along with three other named persons had murdered Vijayan and collected an amount of Rs. 4 lakhs from the second accused. The third accused further threatened PW64 that he would be "finished" if he revealed the information to anybody. 5. By the impugned judgment, the High Court dismissed the criminal revision. The operative portion of the judgment reads as follows: 63. In view of all the above discussions, I hold that the evidence of the 2nd Respondent, as a prosecution witness before the trial court, and the incriminating answers given by him amount to compelled testimony falling within the sweep of Section 132 of the Evidence Act and thus, he is protected by the proviso to Section 132 of the Evidence Act. In such view of the matter, solely on the basis of his evidence as PW64 before the trial court, he cannot be prosecuted either by summoning him as an additional accused in the present case or in a separate trial. 64. At the same time, for the offence of conspiracy allegedly committed by A2 and A3 and the 2nd Respondent herein, there can be a prosecution for offence Under Section 120(B) r/w 302 of Indian Penal Code. But, such prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against other persons appearing to be guilty of offence.--(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. The Section authorizes the Court making any inquiry into or conducting the trial of an offence to "proceed" against any person (other than the accused facing trial) subject to two conditions (i) that from the "evidence" it appears to the Court that such a person "has committed any offence", and (2) that such a person "could be tried together with the accused." 9. We shall first consider the question as to when could a person appearing to have committed an offence "be tried together with the accused" already facing trial? 10. Section 223. What persons may be charged jointly.- The following persons may be charged and tried together, namely: (a) persons accused of the same offence committed in the course same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted any offence. Both the evidence and the statement Under Section 164 Code of Criminal Procedure of PW64 prima facie indicate a conspiracy to kill Vijayan to which conspiracy PW64 was a party at least at the initial stage. According to PW64, he developed cold feet after the initial stage and withdrew from the conspiracy and did not participate in the actual killing of Vijayan. Whether his assertions in this regard are true and, if true, would legally absolve him of guilt are questions with which we are not concerned for the purpose of this case. We only take note of the evidence on record as it exists to indicate that as of today there is no evidence to prosecute PW64 for any offence other than the one punishable Under Section 120B of Indian Penal Code. 12. It is the settled legal position that an offence of conspiracy 120A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done,-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . R. are often quoted in the decisions of this Court. The passage in Russell on Crimes referred to by Jagannatha Shetty, J. in Kehar Singh case (SCC at p. 731, para 271) is quite apposite: The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough. This passage brings out the legal position succinctly. 15. Therefore, if law permits the use of the content of either the evidence given at trial or the statement made Under Section 164 Code of Criminal Procedure by PW64, he could be tried for an offence punishable Under Section 120B Indian Penal Code. Because, on his own admission, PW64 agreed to kill Vijayan for a price and accepted money from A2 towards the part payment of such price and also drafted A3 into the conspiracy. 16. If it is legally possible to try PW64 for such an offence, the further question would be whether he could be tried along with the other accused facing trial for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o are as follows. Two of the Respondents therein along with two others were tried for various offences under the Indian Penal Code. Both the Respondents were convicted for offences Under Section 120B and 409 of the Indian Penal Code. (i) The High Court set aside the convictions on various grounds; one of them being that the joint trial of two or more persons in respect of different offences committed by each of them is illegal. According to the Andhra Pradesh High Court, Section 239 Section 220(1) and 223(d) employ the clause "the same transaction". It may be mentioned here that while Section 220(1) of the Code of Criminal Procedure, 1973 deals with the joint trial of more than one offence committed by the same person, Section 223 deals with the joint trial of different offences committed by different persons under certain circumstances. (of the Old Code of Criminal Procedure corresponding to Section 223 of the Code of Criminal Procedure, 1973) did not permit such a procedure. (ii) Examining the correctness of the conclusion recorded by the Andhra Pradesh High Court, this Court held: .....The question is whether for the purposes of Section 239(d) it is necessary to asce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Procedure opined that the meaning of the clause should depend upon the facts of each case. However, this Court indicated that where there is a proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it is possible to infer that they form part of the same transaction. This Court also cautioned that every one of the above-mentioned elements need not co-exist for a transaction to be regarded as the "same transaction". (iv) This Court approved a decision of Allahabad High Court in T.B. Mukerji v. The State AIR 1954 All 501 insofar as it dealt with the general principles of the joint and separate trials and held as follows: No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would, where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several persons separately. This would lead to unnecessary multiplicity of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had deliberately suppressed the case against the real culprits and filed a chargesheet against Guria. As a consequence, two sessions cases were registered and tried separately. Guria was acquitted and his acquittal became final. Whereas, Balbir and Rajinder were convicted by the Sessions Court. Their conviction was confirmed by the High Court. It was argued before this Court by the convicts that such separate trials were uncalled for and both the cases must have been consolidated and tried jointly invoking Section 223(a) of the Code of Criminal Procedure This Court rejected the submission: 16. .....for both versions here are diametrically divergent without anything in common except that the murdered person was the same. In such cases the most appropriate procedure to be followed by a Sessions Judge should be the same as followed in the present case i.e. the two trials were separately conducted one after the other by the same court before the same Judge and judgments in both cases were separately pronounced on the same day. No doubt the Sessions Judge should take care that he would confine his judgment in one case only to the evidence adduced in that particular case. Both Guria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question whether the other requirements of Section 319 are satisfied warranting the summoning of PW64 Under Section 319 of Code of Criminal Procedure is still required to be examined. 28. The second requirement Under Section 319 Code of Criminal Procedure for a court to summon a person is that it must appear from the evidence that such a person has committed an offence. It is not necessary for us to analyse the full amplitude of the expression "evidence" occurring Under Section 319, but it is axiomatic that the deposition made by a witness during the course of the trial of a sessions case is certainly evidence within the meaning of that expression as defined Under Section 3 of the Evidence Act. 29. Having regard to the content of the deposition of PW64 at the trial of Sessions Case No. 73 of 2009, whether his deposition can be treated as evidence within the meaning of that expression occurring in Section 319 of the Code of Criminal Procedure in order to summon him as an accused to be tried along with the Appellant herein and other accused already facing trial? 30. It was argued before the High Court as well as this Court that in view of the proviso to Section 132 132. Witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various High Courts which either followed or are in tune with Gopal Doss (supra) in support of his submission. 33. The scope of Section 132 of the Evidence Act fell for the consideration of Madras High Court as early as in 1881 in the case of Gopal Doss. 34. A Bench of five Judges heard the matter. The facts are as follows. (i) A suit for summary recovery of an amount of Rs. 1000/- was filed against Gopal Doss and his son Vallaba Doss. It was a suit Under Order XXXIX of Code of Civil Procedure 1859, corresponding to Order XXXVII of the Code of Civil Procedure 1908 based on a promissory note allegedly signed by Gopal Doss and his son. Both the father and son sought leave of the Court to defend the suit, which was granted. Gopal Doss denied his signature on the suit promissory note whereas his son "swore that he wrote both signatures on the promissory note according to the instructions of the Plaintiff" for a monetary consideration. The suit was decreed against the son. Subsequently, Gopal Doss prosecuted his son and the Plaintiff for forgery and other charges. The Plaintiff was acquitted and Vallaba Doss was convicted. The question was-whether (a) the affidavit filed by Vall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d gave him an indemnity by prohibiting his answer from being used in evidence against him and thus secured the benefit of his answer to the cause of justice, and the benefit of the rule, that no one shall be compelled to criminate himself, to the witness when a criminal proceeding is instituted against him. The conclusion I come to is that Section 132 abolishes the law of privilege and creates an obligation in a witness to answer every question material to the issue, whether the answer criminate him or not, and gives him a right, as correlated to that duty, to claim that the answer shall not be admitted in evidence against him in a criminal prosecution." (per Muttusami Ayyar, J.) [Emphasis supplied] 37. Logic of Justice Ayyar for coming to such a conclusion was: It seems to me incongruous that the Legislature should have directed the Judge never to excuse a witness from answering a criminative question relevant to the matter in issue, and at the same time commanded the witness to ask the Judge to excuse him from answering such a question. ...Under the law of privilege, it is necessary to set it up because it is only an excuse which the Judge may or may not recognize as good, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last obligation vitiated the trial and the action was discriminatory. In the alternative, even if the trial was not vitiated as a whole, Ethyl Wong's testimony must be excluded from consideration and the appeal reheard on facts here or in the High Court". 41. Dealing with the question whether Ethyl Wong should have been prosecuted along with other accused, this Court opined: The prosecution was not bound to prosecute her, if they thought that her evidence was necessary to break a smugglers' ring. Ethyl Wong was protected by Section 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself. She was a competent witness.... 42. Dealing with the immunity conferred Under Section 132, this Court held thus: Now there can be no doubt that Ethyl Wong was a competent witness. Under Section 118 of the Indian Evidence Act all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section. Under Section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (amon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion, are clearly in tune with the dissenting opinion expressed by Ayyar, J. in Gopal Doss's case. This Court opined that the proviso to Section 132 of the Evidence Act is a necessary corollary to the principle enshrined Under Article 20(3) of the Constitution of India which confers a fundamental right that "no person accused of any offence shall be compelled to be a witness against himself." Though such a fundamental right is available only to a person who is an accused of an offence, the proviso to Section 132 of the Evidence Act creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself. Without such an immunity, a witness who is giving evidence before a Court to enable the Court to reach a just conclusion (and thus assisting the process of law) would be in a worse position than an accused in a criminal case. 44. The sweep of Article 20 fell for consideration of this Court in Nandini Satpathy v. P.L. Dani and Anr. (1978) 2 SCC 424. Justice V.R. Krishna Iyer spoke for the bench. (i) It was a case where a crime under the Prevention of Corruption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are seen in (i) Section 161 Code of Criminal Procedure, 1898. Sub-section (1) authorised a police officer investigating a case to examine any person "supposed to be acquainted with the facts and circumstances of the case". Sub-section (2) exempted such person from answering the questions "which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture". Section 161 of the Code of Criminal Procedure, 1973 corresponds to Section 161 of the Code of Criminal Procedure, 1898. Sub-sections (2) of both the old and new Code are substantially identical Section 161(2) of Code of Criminal Procedure 1973.-Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Section 161(2) of Code of Criminal Procedure 1898.-Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (ii) Another facet of the rule against self-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswer" given by a person while deposing as a "witness" before a Court. 48. In the light of our above discussion, we are of the opinion the High Court rightly refused to summon PW64 as an accused to be tried alongwith the Appellant and others. 49. Before we part with this case, we must also place on record that during the argument and in the written submission filed on behalf of the Appellant, a point is sought to be made that PW64 could not have been examined as a witness without securing pardon Under Section 306 Code of Criminal Procedure. 50. In the application filed Under Section 319 Code of Criminal Procedure before the trial Court in this regard, it is stated as follows: The Petitioner submits that if the prosecution wants him to be a witness, he should have been made as an Approver and tender of pardon proceedings should have been taken up. 51. It is not very clear from the judgment under appeal as to what exactly was the submission made in support of the above mentioned plea, but the High Court recorded at para 20: ...If it is so held, then the 2nd Respondent is liable to be tried along with the other accused in the present case, undoubtedly, the examination of the 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: 133. ...An accused person cannot assert any right to a joint trial with his co-accused. Normally it is the right of the prosecution to decide whom it prosecutes. It can decline to array a person as a co-accused and, instead, examine him as a witness for the prosecution. What weight is to be attached to that evidence, as it may smack of the testimony of a guilty partner, in crime, is a different matter. Prosecution can enter nolle prosequi against any accused-person. It can seek to withdraw a charge against an accused person. These propositions are too well settled to require any further elaboration. Suffice it to say that the matter is concluded by the pronouncement of this Court in Laxmipat Choraria v. State of Maharashtra 1968 CriLJ 1124 where Hidayathullah J referred to the argument that the accomplice, a certain Ethyl Wong in that case, had also to be arrayed as an accused and repelled it, observing: Mr. Jethmalani's argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks Section 132 (proviso). ...The prosecution was not bound to prosecute her, if they thought that her evidence was necessary to break a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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