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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. JAYACHANDRAN, J
Blesson P.B, S/o Cheriyan P.J. - Appellant
Versus
State Of Kerala - Respondent
CRL.MC NO.2006, 2216, 2232, 2233 OF 2025
Decided On : 10-03-2025
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 348 - Bharatiya Sakshya Adhiniyam, 2023 - Section 149 - Protection of Children from Sexual Offences Act, 2012 - Sections 4, 6, 8, 12, 15 - Recall of witness to confront with subsequent statement - The court addressed whether a witness can be recalled to test her veracity against a subsequent statement. The applications for recalling the witness were dismissed, emphasizing that the Evidence Act does not permit the use of subsequent statements for impeachment of credibility. The court upheld the principle that only previous statements can be used for such purposes, citing prior judgments. (Paras 1 , 11 , 14 )
(B) Evidence Act, 1872 - Sections 138, 145, 146, 155 - Cross-examination rights - The court reaffirmed that the right to cross-examine is fundamental and can be exercised to test a witness's credibility, but must adhere to statutory provisions regarding the use of statements. (Paras 4 , 10 )
Facts of the case:
The petitioners, accused in separate sessions cases, sought to recall the victim for cross-examination based on her subsequent statements in unrelated cases where she turned hostile. The applications were denied on privacy grounds and legal precedent.
Findings of Court:
The court found no merit in recalling the witness as the Evidence Act does not allow for the use of subsequent statements for impeachment.
Issues: The primary issue was whether a witness could be recalled to confront her with a subsequent statement to impeach her credibility.
Ratio Decidendi: The court concluded that only previous statements can be used for contradiction or impeachment under the Evidence Act, and that the right to confront a witness does not extend to subsequent statements made after cross-examination.
Result: All four Criminal Miscellaneous Cases dismissed.
ORDER :
Whether a witness/victim can be re-called under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023('B.N.S.S', for short), read with Section 149 of the Bharatiya Sakshya Adhiniyam, 2023 ('B.S.A', for short), to confront her with a 'subsequent' statement, so as to test her veracity, is the question which surfaces for consideration in the first two Crl.M.Cs. The other two Crl.M.Cs challenge the Orders dismissing the petitioners' application (Annexure-A5) seeking certified copies of the deposition of PW1/victim, as also, her statements under Section 161 Cr.P.C in two other Sessions Cases, which, according to the petitioners, are connected with the Sessions Case in question.
2. The factual matrix:
Petitioners in Crl.M.C No.2006/2025 and 2216/2025 are the respective accused person in S.C Nos.366/2024 and463/2024, both of the Fast Track Special Court, Adoor. In S.C No.366/2024 (Crl.M.C No.2006/2025), the offences alleged are under Sections 450, 376(1), 376(2)(n), 354 and 354 A of the Penal Code; and Sections 4(1) read with Section 3(a), Section 6 read with Section 5(1), Section 8 read with Section 7, Section 10 read with Section 9(1), Section 12 read with Section 11(iii), 11(v) and 11(vi) and Section 15 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act', for short) and further under Section 67 B(b) and 67 B(e) of the Information Technology Act. Similarly, the offences in S.C No.463/2024 (Crl.M.C No.2216 of 2025) are under Sections 451 and 354 A of the Penal Code; and Section 8 read with Section 7 and Section 12 read with Section 11(iv) of the POCSO Act. In S.C No.366/2024, the defacto complainant/victim was examined as PW1 on 07.01.2025; whereas she was examined in S.C No.463/2024, as PW1 on 03.01.2025. In both cases, the witness was examined, at length, in cross as well and discharged. Thereafter, the same defacto complainant/victim was examined as a witness in S.C No.331/2024 and S.C No.162/2024 on 10.01.2025 and 18.01.2025 respectively, in which cases the accused persons were different. In those cases (S.C Nos.331/2024 and 162/2024), the defacto complainant/PW1 turned hostile to the prosecution and deposed that she had no acquaintance with the accused persons therein, with the result, the respective accused persons were acquitted by separate judgments of the same Fast Track Special Court, Adoor. The petitioners herein (accused persons in S.C Nos.366/2024 and 463/2024) filed applications seeking issuance of certified copy of the deposition of the victim/PW1, as also, the statement under Section 161, Cr.P.C of the victim, in S.C Nos.331/2024 and 162/2024. The applications were rejected on the premise that the petitioner is a stranger and that issuance of copies would offend the privacy of the victim guaranteed under Article 21 of the Constitution. Those Orders are under challenge in the present Crl.M.C Nos.2232/2025 and 2233/2025. The petitioners herein also filed Criminal Miscellaneous Petitions in the subject Sessions Case Nos.366/2024 and 463/2024 seeking to recall PW1 to impeach her credibility and to bring materials before the trial court, pertaining to the reliability of PW1, as a witness. The respective applications filed in the two Sessions Cases were dismissed, vide Orders produced at Annexure-A8 in both the Crl.M.Cs, relying upon the judgments of the Hon'ble Supreme Court in Mishrilal and Others v. State of M.P and Others [2005 (10) SCC 701] and Hanuman Ram v. State of Rajasthan and Others [2008 (15) SCC 652] and also harping on Section 33(5) of the POCSO Act. Annexure-A8 Orders in both the Crl.M.Cs are under challenge.
3. Heard Sri.Manu Ramachandran, learned counsel for the petitioners; Sri.C.N.Prabhakaran, learned Senior Public Prosecutor, Sri.Sanal P.Raj, learned Public Prosecutor and Sri.E.C.Bineesh, learned Public Prosecutor. Having regard to the significance of the issue as to whether the accused has got a right to impeach the credibility of a witness by relying on a 'subsequent'
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