The Court can invoke Section 311 Cr.P.C. to recall witnesses and obtain proper proof of relevant facts for a just decision, and the age shown in the matriculation certificate takes precedence over the birth certificate.

ORDER :

1. The challenge in this Criminal M.C is to the common order dated 12.04.2023 in C.M.P Nos.184/2023 and 185/2023 on the file of the Additional District and Sessions Court, for the trial of cases relating to Atrocities and Sexual Violence against Women and Children, Ernakulam.

2. The petitioner faces charges under Sections 370(4), 342, 354A-(1)(i) read with Sections 354-A(2), 376(2)(n), 376(2)(f), 313, 506(i) of the Indian Penal Code and Sections 5(l), 5(p), 5(j)(ii) read with Sections 6, 9(l), 9(p) and Sections 10, 11(iii) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012. The Court below is proceeding with the trial. PWs 1 to 22 were examined on the side of the prosecution and Exts.P1 to 28 were marked. On the side of the defence, DW1 was examined and Exts.D1 to D11 were marked.

3. The prosecution thereafter filed CMP No. 184/2023, a petition under Section 91 Cr.P.C, to summon the matriculation certificate in respect of PW1, the victim and C.M.P No. 185/2023, a petition under Section 311 Cr.PC, to recall PW1. The petitions were opposed by the petitioner/accused. The Trial Court allowed the applications.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

5. The learned counsel for the petitioner submitted that the attempt of the prosecution is to fill up the lacuna in the prosecution case and that the document sought to be proved is not required for a just decision.

6. Per contra, the learned Public Prosecutor submitted that as the matriculation certificate is a document in proof of age of a child under Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the age shown in the certificate would have precedence over the birth certificate issued by a local body. Therefore, even though the birth certificate was marked in evidence, proving the matriculation certificate is highly required for a just decision. The learned Public Prosecutor further submitted that the prosecution has not attempted to fill up the lacuna as contended by the petitioner/accused. The prosecution is only attempting to set right an omission in leading evidence.

7. PW1 is the victim. The charge against the petitioner is that on 25.07.2019, he sexually assaulted the victim and on 26.07.2019 raped her. The further case of the prosecution is that PW1 was repeatedly raped on several other dates till she attained majority on 11.01.2020. The date of birth of the victim is 11.01.2002. On the side of the prosecution, the birth certificate was proved as Ext.P13 through PW16. The mother of the victim also gave evidence to the effect that the date of birth of the victim is 11.01.2002. The prosecution has no case that the date of birth entered in the matriculation certificate differs from the one recorded in the birth certificate and the oral evidence adduced by the mother of the victim.

8. The aid of Section 311 Cr.P.C. should be invoked with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It is trite that due care should be taken by the Court while exercising power under the section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or to give an unfair advantage to the rival side and further, the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. The Court has very wide power to examine any witness it likes for a just decision in the case. The wide discretionary power upon the Court in this respect is to be exercised judicially and not arbitrarily. The Co