O R D E R

Dated this the 17th day of October, 2022 Annexures A4 and A5 orders passed by the Fast Track Special Court, Perumbavoor (for short 'the court below') are under challenge in this Crl.M.C.

2. The petitioner is the accused No.5 in SC No.728/2020 pending before the court below. He faces trial for the offences punishable under Sections 354, 354A(1)(i) & (ii), 354D(i) & (ii) of IPC and Section 7 read with Section 8 of the POCSO Act.

3. The prosecution case against the petitioner in short is that he criminally intimidated the victim aged 17 years by threatening her about her revelation that she was subjected to sexual abuse by others and he demanded her to concede to his sexual interest as well and thereby she reached the campus of Kalady University on a day in the last week of April, 2018 at about 4.00 p.m and at his instance and ignoring her resistance, he kissed her and fondled her breast and further demanded sexual intercourse with him. It is further alleged that he stalked her repeatedly, personally and over phone.

4. On the side of the prosecution, 21 witnesses were examined and 22 documents were marked. MO1 and MO2 were identified. MO1 is a pen drive and MO2 is a Nokia phone. According to the prosecution, MO1 contains the telephonic conversation between the victim and the petitioner. It has come out in the evidence of PW10 that he downloaded the said voice clip from the email of SHO of Kalady police station which was received from Child Line, Kochi and transferred the same to MO1. MO2 is the mobile phone belonging to the accused. When the case was posted for defence evidence, the petitioner filed two petitions. CMP No. 158/2022 has been filed to hear the voice clip in MO1 pen drive before the court. CMP No.165/2022 was filed to send MO1 pen drive to FSL for analysis. The court below after hearing both sides dismissed both the petitions vide Annexures A4 and A5 orders. Those orders are under challenge in this Crl.M.C.

5. The records would show that the prosecution case was framed based on a call record allegedly traced out from his mobile phone which has been identified as MO2. It is alleged that the said call record contains conversation between the victim and the petitioner. According to the petitioner, he did not make any such conversation with the victim. So, the petitioner wanted to verify authenticity of the voice clip through scientific examination to ascertain whether the male sound in the voice clip is matching with his sound. It was in these circumstances that the petitioner filed petitions at the court below. The court below dismissed the petitions holding that MO1 pen drive was received in evidence as a material object and the prosecution did not tender into evidence the contents of the pen drive. For the simple reason that the prosecution did not make any attempt to prove the contents of the pen drive, it cannot be said that the defence cannot prove the contents in the pen drive during defence evidence. The right of the accused to adduce defence evidence is a valuable right. If the defence wants to adduce evidence in a particular manner, the prosecution or the court below cannot say that the defence cannot adduce evidence in that manner. As stated already, the entire prosecution case is built upon the alleged telephonic conversation between the victim and the accused. Hence, the accused has every right to prove that the male voice in the said alleged conversion is not that of his.

For these reasons, I am of the view that the court below was not correct in dismissing both the petitions filed by the petitioner. Accordingly, Annexures A4 and A5 are set aside. CMP Nos. 158/2022 and 165/2022 stand allowed. Crl.M.C is disposed of accordingly.