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2024 Supreme(Ker) 896
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
ARJUN BABU S/O BABUMECHERIL – Petitioner
Versus
STATE OF KERALA – Respondent
Crl. MC No. 7106 of 2024
Decided On : 23-08-2024
Advocate Appeared:
For the Petitioners: C.P. SAJI, ANISH ABRAHAM.
For the Respondent: MAYA M.N.
IMPORTANT POINT
The court established that recalling a witness must be necessary and justified, not merely to fill evidentiary gaps in the defense.
Headnote:
Recall - Criminal Procedure - Section 311, Section 33(5) of PoCSO Act - The court interpreted the provisions regarding the recall of witnesses, emphasizing that such actions must be justified and not merely to fill evidentiary gaps, influencing the dismissal of the petition.
Fact of the Case:
The petitioner, accused in a sexual assault case, sought to recall the victim to confront her with chat evidence after the prosecution's case was closed, claiming he could not present the evidence earlier.
Finding of the Court:
The court found that the petitioner had the opportunity to confront the victim during her examination and that recalling her would only serve to fill a gap in the defense, which is not permissible.
Issues: Whether the court should allow the recall of the victim for re-examination based on the accused's new evidence after the prosecution's case had concluded.
Ratio Decidendi: The court held that recalling a witness, especially a child, must be justified and not merely to address deficiencies in the defense's case, referencing relevant legal provisions.
Result: The petition to recall the victim was dismissed.
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. 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 contenti
