The court upheld the dismissal of petitions to reopen evidence, emphasizing timely justice in POCSO cases and the irrelevance of the requested evidence.

O R D E R

This Crl.M.C is at the instance of the sole accused in S.C.No.261/2020 on the files of the Special Court for the trial of Protection of Children from Sexual Offences Act (`POCSO Act' for short) Cases, Thiruvananthapuram, and he impugns the common order dated 11.10.2024 in Crl.M.P.Nos.2413/2024 and 2414/2024, whereby the petitions filed by the accused to reopen the evidence and to send Ext.D2 pen drive and Ext.D3 mobile phone for cyber forensic examination was disallowed by the Special Court.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the impugned order.

3. In the instant case prosecution alleges commission of offences punishable under Sections 376 (2)(j)(k)(l)(n), 376(c) of the Indian Penal Code (` IPC ’ for short) and Sections 4 r/w3, 6 r/w 5(k)(l)(p), 8 r/w 7, 10 r/w 9(k)(l)(p), 12 r/w 11(iii)(iv) of POCSO Act.

4. Now prosecution evidence was completed. Defence evidence also closed after examination of DW1 to DW4 and marking of Exts.D1 to D4 on the side of the petitioner/accused. After closing the defence evidence, the present petitions have been filed. The learned Special Judge addressed the same by a lengthy order and finally dismissed the same.

5. While assailing the common order it is specifically argued by the learned counsel for the petitioner that during trial of these cases, O.P(Crl) No.116/2023 was filed before this Court with prayer to send the mobile phone to the laboratory. But the said O.P was dismissed as per Annexure 3 judgment permitting the accused to produce all the evidence before the Special Judge during trial. Even though the mobile phones of the victim and the accused were seized during the investigation, the cyber report did not reveal any such fact. According to the learned counsel for the petitioner, there were messages and chats sent by the victim to the accused and in order to prove the same, the accused himself got examined under Section 315 of Cr.P.C and he produced his mobile phone and pen drive marked as Ext.D2 (pen drive) and Ext.D3 (mobile phone) to get it done cyber forensic examination to prove the said fact. According to the learned counsel for the petitioner, the accused has no other option to prove the same. Therefore, dismissing the petitions filed by the accused as per Annexure-A4 common order is illegal and the same is to be interfered for the purpose of granting the reliefs prayed for by the petitioner as part of the defence evidence.

6. The prosecution side opposed the plea specifically contending that Exts. D2 and D3 or the contents thereof are not relevant to decide the case. The prosecution side also argued that the Investigating Officer seized the mobile phone of the accused as well as the victim during investigation and as per Ext. P36, the data was copied to the pen drive and sent for cyber forensic examination, but no data derived therefrom. It is also submitted by the prosecution side that at the time of examining the accused as DW4, Exts.D2(a) to D2(g) were also marked on the side of the accused and those messages as well as chats were of 12.08.2019 after the release of the petitioner on bail. The prosecution side also submitted that Ext. D2 series were not brought to the attention of the victim, who was examined as PW1 and her parents, PW5 and PW6, which should have been used to contradict them, being previous statements.

7. The learned Special Judge addressed the genesis of the case where the accused/petitioner started working as Physiotherapist at KIMS Hospital and set up his own institution, TIMS. The minor victim, who is differently-abled with 74% permanent disability, began to attend the institution from May, 2011 for physiotherapy and for remedial therapy and speech therapy from 2015 onwards. The accused provided treatment to the victim at her house and later she visited TIMS for treatment. During 2016, the parents noticed that the victim had been using mobile phone excessively and it was informed to one D