The court upheld that provisions under Section 311 Cr.P.C. must align with protections under the POCSO Act, barring repeated victim testimony.

ORDER

Dated : 19th November, 2021

1. This Crl.M.C. has been filed against the order dated

06.03.2021 in CMP No.17/2021 in S.C.No.347/2019 of the Fast Track Special Judge, Kozhikode.

2. Petitioner is the sole accused in S.C.No.347/2019 which has been registered for the offences punishable u/s.376(2)(f)(i) of IPC and Section 3 (a) r/w. Section 4 , Section 5 (i), 5(m) and 5(n) r/w. Section 6 of POCSO Act, 2012 .

3. According to the learned counsel for the petitioner, prosecution witnesses except the investigating officer have already been examined. CMP No.17/2021 has been filed by the accused under Section 311 Cr.P.C. for recalling PWs 1 and 2 victim and her mother. By by the impugned order the learned Special Court dismissed the petition. Aggrieved by the same, he came up before this court.

4. Notice was issued to the respondent and leanred Public Prosecutor appeared for the respondent – State.

5. Heard both sides.

6. Copy of the impugned order has been produced as Annexure A1. It would go to show that Section 311 petition has been filed by the petitioner alleging that during examination of PWs 1 and 2 accused failed to give instruction to his advocate regarding some of the questions to be put to those witnesses. Those questions are necessary to prove his innocence. In Crl.M.C. filed before this Court also it has been alleged by the petitioner that after the examination of PWs 1 and 2 it is understood that certain questions to be put to PWs 1 and 2 which are necessary and essential for the proper conduct of the case. Hence the petition was filed for recalling PWs 1 and 2. It is also contended that there are material contradictions in the deposition of the victim and the mother from the 161 statement as well as Section 164 Cr.P.C. statement. But the counsel omitted to call the attention of witnesses to those previous statements for contradicting the witnesses. That is the main point which was argued in this proceedings by the learned counsel.

7. The learned Public Prosecutor vehemently objects in considering the petition and also contended about the bar u/s.33(5) of the POCSO Act in repeatedly calling the victim in a POCSO case.

8. In order to substantiate the contention that material omission would amount to contradiction and it is necessary as per Section 145 of the Evidence Act to impeach the credit of the witnesses the former inconsistent part of the statement to be brought to the attention of the witnesses as per Section 155 (3) of the Indian Evidence Act etc, the learned counsel brought to my attentionTahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 KHC 577]; State of Maharashtra v. Bharat Chaganlal Raghani & Ors. [ 2001 (9) SCC 1 : AIR 2002 SC 409 : 2001 KHC 1392]; Mishra V.K. & Anr. v. State of Uttarakhand & Anr. [ AIR 2015 SC 3043 : 2015 (9) SCC 588 : 2015 CriLJ 4021]; Karan Singh & Ors. v. State of M.P. [2003 (12) SCC 587 : 2003 KHC 1862]; To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. [ 2017 (2) KLT 809 : 2017 (1) KLD 609] and also Kochappan alias Thomayil v. State [1959 KLJ 716 : 1959 KLT 606 : ILR 1959 1959 Ker. 718: 1959 KHC 138].

9. In Tahsildar Singh's case, learned counsel highlighted paragraph Nos.18, 26, 27 etc. wherein there is discussion regarding statement made by witnesses before police officer. Highlighted portion of paragraph No.26 reads thus.

“(3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement;”

10. In paragraph No.51 it has been found that relevant and material omissions amount to vital contradictions, which can be established by cross examination and confronting the witness with his previous statement.

11. In Bharat Chaganlal Raghani's case, the learned counsel highlighted paragraph No.51, which reads thus:

“In the light of the statement of