The court upheld the trial court's refusal to recall a witness, emphasizing that the defense had sufficient opportunity to present its case and that compelling a witness to prepare evidence for the defense is impermissible.

ORDER

The petitioner is aggrieved by Annexure-A5 Order, which disallowed an application under Section 311 Cr.P.C . to recall PW8, a Village Officer. As a matter of fact, three witnesses were sought to be examined on the part of the defence, of which, two were allowed by the trial court by virtue of the impugned Annexure-A5 Order. Insofar as PW8/Village Officer is concerned, the application under Section 311 Cr.P.C . was refused.

2. Learned Counsel for the petitioner submits that the prosecution allegation is one of carnal intercourse on a thirteen year old minor, which took place in March, 2022 when the defacto complainant/minor, along with her friends were taking a bath at Parekadav Thodu. The allegation is that, the accused immersed the defacto complainant into the water and shoved his genitals to the mouth of the defacto complainant. According to the learned Counsel, in the subject ‘thodu’, there is water having a reasonable depth only at one portion, which fact is admitted by the victim, when she was examined as PW1. The petitioner would contend that Annexure-A6 scene plan prepared by PW8 is incomplete as regards the length, width and depth of the scene of occurrence. The depth and flow of water in the bathing ghat at Parekadav thodu is relevant to prove the innocence of the accused, the details of which are absent in Annexure-A6 scene plan. Thus, the petitioner wants PW8 to measure the length, width and depth of the pit on the eastern side of bathing ghat of Parekadav thodu. He also wants to ascertain whether ten persons can bath simultaneously having regard to the width of the thodu. According to the petitioner, the aspects which were subsequently required to be noticed were not within the knowledge of the accused/petitioner when PW8 was cross-examined. It is in such circumstances that an additional witness list was filed to examine three persons, of whom, the Village Officer was expected to prepare a scene plan depicting the above referred information.

3. This application was seriously opposed by the learned Senior Public Prosecutor. Referring to the impugned Annexure-A5 Order, it was pointed out that the refusal of Annexure-A3 witness list insofar as it pertains to the Village Officer/PW8 is concerned, is perfectly legal. It was pointed out that the entire prosecution evidence was adduced and the accused was questioned under Section 313 (1)(b) Cr.P.C .. Thereafter, seven witnesses were cited from the defence side, of which, five witnesses were examined as DW1 to DW5, through whom Exts.D1 to D10 were marked. It is thereafter the present additional witness list was filed seeking to examine three more witnesses, of which, the examination in respect of two witnesses were allowed by the trial court by virtue of Annexure-A5 impugned Order and the examination in respect of PW8/the Village Officer was refused. Learned Special Judge found that the scene of occurrence is stated in Ext.P5 scene Mahazar and that a sketch which is sought to be produced is not something in the custody of the Village Officer, but one to be prepared in accordance with the requirements of the petitioner/accused. Allowing an application as required by the petitioner/accused would amount to an investigation into the place of occurrence by the Village Officer concerned, which was not permissible in law. Learned Public Prosecutor would submit that there is no error of law, whatsoever, in the course adopted in Annexure-A5 Order.

4. Having heard the learned Counsel appearing for the respective parties, this Court finds little merit in the instant Crl.M.C. Primarily, this Court cannot endorse the submission made by the learned Counsel for the petitioner that the aspects which are now required to be ascertained were not in the notice of the petitioner/accused. PW8 was examined to prove Ext.P5 scene plan.