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2024 DIGILAW 1064 (KER)

ARJUN BABU S/O BABUMECHERIL v. STATE OF KERALA

2024-08-23

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the petitioner, who is the sole accused in Crime No. 1037/2021 of Ramapuram police station, Kottayam, now pending as S.C.No. 638/2021 on the files of the Fast Track Special Court, Erattupetta and the prayer herein is as under: To set aside Annexure A6 order in Crl.M.P.No. 221/2024 in S.C.No. 638/2021 of the Fast Track Special Court Erattupetta and allow Annexure A4 petition for recalling the PW1 for the end of justice. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant records. 3. The petitioner herein challenges Annexure A6 order, whereby, the learned Special Judge, Erattupetta dismissed Crl.M.P.No. 221/2024 in S.C.No. 638/2021, dated 19.8.2024. 4. In this matter, the prosecution alleges commission of offences punishable under Sections 450, 354A(1) (i)(ii), 354A(2), 376(2)(a)(ii) and 376(3) of the Indian Penal Code, Section 4(2) r/w Section 3(a), Section 6 r/w Section 5(l), Section 12 r/w Section 11(i)(ii), Sections 7, 8 and Section 9(l) r/w Section 10 of the Protection of Children from Sexual Offences Act, 2012 and Section 67B(b) of the Information Technology Act, 2000, by the accused. The prosecution case is that, the accused who made acquaintance with the victim, a minor girl, aged 15 years, through Instagram, started sex chatting and video calls with the victim and used to send his nude photographs, through Whatsapp and Instagram. Thereafter, in between 10.30 p.m. to 11.pm. on 05/06/2021, he trespassed into her residential house and committed penetrated sexual assault on her. It is further alleged that, the accused used to visit the victim’s home every alternative days and committed penetrated sexual assault till 15/07/2021. This is the base, on which, the prosecution alleges commission of the above offences. 5. In this matter, the trial started and prosecution evidence was completed. When the accused was given opportunity to adduce defence evidence, he produced Ext.D2 chats between PW1 the victim and himself. The present petition has been filed to recall PW1, so as to confront the same with PW1. In paragraph No. 5 of Annexure A4 (copy of Crl.M.P.No. 221/2024), reasons for recalling have been stated as under: “5. When the accused was given opportunity to adduce defence evidence, he produced Ext.D2 chats between PW1 the victim and himself. The present petition has been filed to recall PW1, so as to confront the same with PW1. In paragraph No. 5 of Annexure A4 (copy of Crl.M.P.No. 221/2024), reasons for recalling have been stated as under: “5. Since there was no provision for producing document by the accused during the stage of prosecution evidence, the accused could not produce the printout of the chat and ask questions confronting her with the chat made by her with the accused. Now the accused has produced the print out of the chat before the court with the certificate of the person whose took printout of the same. In order to prove the chat made between the accused and the PW1 inviting her attentions to chat it is highly necessary to recall the PW1 and to examine her based on the chat produced by the accused.” 6. A detailed objection was filed by the learned Special Public Prosecutor and the main contention raised in paragraph No. 4 reads as under: “4. Though the facts enumerated in the petition are already known to the petitioner/accused these facts were not asked during the cross examination and nothing had prevented the petitioner/accused regarding the same. Though petitioner/accused is trying to fill up their lacuna in the case and the said petition cannot be entertained to fill up such lacuna. There is no such necessity for allowing the petition based on the evidence which is already before the court. Various decisions citing the bar or recalling the survivor for filling up the lacuna caused in the defense case. Moreover it is crystal clear from the evidence submitted by the petitioner/accused that the offence had been committed by the petitioner/accused himself and there is no scope of recall the survivor for filling of lacuna which is happened in the defence case which they had omitted to fill up by the extensive cross examination.” 7. On appreciation of the rival contentions, the learned Special Judge addressed the grievance of the petitioner and found that the petition is not liable to be allowed, holding that the petitioner could very well confront the document to PW1 at the time of her examination. On appreciation of the rival contentions, the learned Special Judge addressed the grievance of the petitioner and found that the petition is not liable to be allowed, holding that the petitioner could very well confront the document to PW1 at the time of her examination. Further, relying on a decision of this Court in Jerin Joy v. State of Kerala reported in [2024 KLT Online 1541], where this Court held that recalling of child witness can be resorted only such recalling is absolutely necessary, the petition was dismissed. In a recent decision of the Apex Court in Madhab Chandra Pradhan & Ors. v. State of Odisha, 2024 Live Law (SC) 615, the Apex Court also categorically held that, though Section 33(5) of the PoCSO Act would not act as an absolute bar to recall the victim for re-examination, each case must be looked at in the context of its individual facts and circumstances. In Paragraph No. 5, it was held as under: “5. We have heard learned counsel for the petitioners, who would submit that Section 33 (5) does not operate as an absolute bar for recalling the child as a witness for re-examination. Learned counsel for the petitioners would argue that Section 33 (5) would also not come in the way of the Special Court’s powers under Section 311 of the Cr.P.C to recall or re-examine any person who has already been examined. It would be apposite to reproduce Section 311 of the Cr.P.C before adverting to the facts of the present case. Section 311 of the Cr.P.C reads as under: “311. Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case...” We are of the considered opinion that although Section 33 (5) would not act as an absolute bar to recall the victim for re-examination as a witness, each case must be looked at in the context of its individual facts and circumstances. Thus, the question which falls for our consideration in the present case is whether in the exercise of its powers under Section 311 of the Cr.P.C, the Special Court ought to have recalled the child/victim for re-examination as witness, keeping in mind the mandate under Section 33 (5) of the Act. 8. Going by the prayer in the petition, the attempt of the petitioner is to recall PW1, so as to confront Ext.D2 series chats in between them, solely on the ground that the accused has no right to produce or confront a document during prosecution evidence. Thus, the question poses is whether during cross-examination of the prosecution witness, an accused can use documents or statements pertain to the witnesses, to confront the same? No doubt, the right of cross-examination is a salutary right of the adverse party to shake the version of a witness by impeaching his credibility, during such exercise, the accused can very well confront a document or a statement to the prosecution witness without producing the same earlier, on getting permission of the court to do the same. 9. In fact, the chats which were available at the hands of the petitioner should have used at the time of cross-examination of PW1 and after closing the prosecution evidence and completion of the evidence of PW1, such a procedure is nothing, but filling up the lacuna in evidence and the same is not permissible. In PoCSo offences, Section 33(5) also has significance, while repeatedly recalling child witness. Therefore, Annexure A6 order, whereby, the learned Special Judge dismissed such a prayer, is only to be justified. 10. Accordingly, this petition lacks merits and the same is dismissed.