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2023 Supreme(Online)(KER) 17209
HIGH COURT OF KERALA
K. Babu, J
... – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 6149 2023
K.P.SUJESH KUMAR
A fair trial allows for correcting oversights in evidence, ensuring all relevant material is presented for justice.
Headnote:
Criminal Law - Sessions Case - IPC Sections 363, 376; POCSO Act Sections 3(a), 4 - The court upheld the lower court's decision to allow the prosecution to further summon witnesses under Section 311 Cr.P.C., emphasizing the right to a fair trial and the correction of errors in evidence.
Fact of the Case:
The petitioner faces charges for the abduction and sexual assault of a victim, with trial proceedings ongoing. The prosecution sought to summon witnesses to correct omissions in evidence regarding the victim's age and medical certification.
Finding of the Court:
The court found the prosecution's request valid as it aimed to address errors made during the trial, reinforcing the principle of a fair trial over concerns of filling a perceived lacuna.
Issues: Whether the lower court erred in allowing the prosecution's application to summon additional witnesses post-evidence submission and argumentation.
Ratio Decidendi: The court held that correcting oversights during trials is essential to ensure justice, distinguishing between a 'lacuna' and an error due to oversight, aligning with precedents that support the opportunity for rectification.
Final Decision: The Crl.M.C. lacks merit and is dismissed.
ORDER
The challenge in this Crl.M.C. is against the order dated
19.07.2023 (Annexure A4) passed by the Fast Track Special Judge, Kattakada in C.M.P. No.74/2023 in S.C.No.759/2014 on the file of the Fast Track Special Court, Kattakada. The petitioner is the accused in the Sessions Case. He faces charges under Sections 363 and 376 of IPC and Sections 3 (a) read with Section 4 of Protection of Children from Sexual Offences Act , 2012.
2. The Court below is proceeding with the trial in the matter.
After completing the evidence, the matter was posted for hearing arguments under Section 232 of Cr.P.C. On 19.07.2023, the learned Special Prosecutor filed C.M.P.No.74/2023 under Section 311 Cr.P.C seeking to issue summons to the Head Master of the school where the victim first attended, the Doctor who issued Ext.P4 medical certificate and the investigating officer. The Court allowed the application as per the impugned order.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that the Head Master of the Govt.H.S.S., Malayinkeezhu was examined as PW9 and the admission register relating to the victim was marked as Ext.P2 and the Doctor who issued Ext.P4 was also examined. Now, after hearing the arguments of the defence, in order to fill up the lacuna in the prosecution case the learned Public Prosecutor submitted CMP No.74/2023. The learned counsel submitted that sufficient opportunity was given to the prosecution to lead evidence to establish the age of the victim and the medical evidence in support of the prosecution case.
5. The learned Public Prosecutor, per contra, contended that the attempt of the prosecution is only to rectify certain errors and omissions in leading the relevant evidence. The learned Public Prosecutor submitted that the fact that, the school where the victim first attended was Govt. Machel LPS, came to the notice of the learned Public Prosecutor, who conducted the case, later. It is also submitted that as the name of the victim was not mentioned in Ext.P4 medical certificate, further examination of the doctor is also required.
6. The reasoning applied by the Court below in allowing the application under Section 311 of Cr.P.C. is contained in Paragraph 5 of the impugned order, which is extracted below:
“In this case, at the time of final hearing of the case, the defence side had contended that Ext.P14- attested copy of admission register extract of the victim, marked in this case through PW19- Headmistress, GGHSS, Malayinkeezhu, was not the one issued from the school she had first attended. Hence the prosecution intends to examine the Head Master of Machel LPS, which was the school first attended by the victim. It was alleged by the defence side that in Ext.P4-medical certificate, the name of the victim was not stated. Hence the prosecution intends to examine the CMO or the doctor concerned who had put his/her signature in the reference, from Department of Obstetrics and Gynaecology, which bears O.P.No. and name of the victim, on 05.09.2013. The document is available in the prosecution records already produced. It was alleged by the prosecution that the accused had pledged the gold ornaments of the victim. It was challenged by the defence side at the time of hearing. Though the register of one S.D. Finance, perekkonam was seized by the police for the purpose and a mahazar was prepared and though the said mahazar was available in the case records, the same was not marked in this case. Hence the prosecution intends to re-call PW18 for marking the said document.”
7. The vehement contentions of the learned counsel for the petitioner is that the attempt of the prosecution is to fill up the lacuna. Going by the material placed before this Court I am of the view that the prosecution has sought for correcting certain errors and omissions occurred while leading evidence. While dealing with similar fact situation , this court in Manu Dev Vs. State
