Witness must be allowed to be confronted with audio-recorded statements relevant for cross-examination, emphasizing procedure for contradictions.

O R D E R

The accused in S.C No.101/2021 on the files of the Fast Track Special Court, Aluva has filed this petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023, aggrieved by the order of the said Court rejecting his request to recall PW2, and to issue summons to the additional defence witness.

2. The petitioner is undergoing trial in the said case for the commission of offences of rape and penetrative sexual assault upon a minor girl, who was his step daughter. The main defence taken by the petitioner is that a false case has been foisted against him due to the enmity nurtured by the mother and grandmother of the survivor. It is contended that, from the month of March, 2020 onwards, PW2, the grandmother of the survivor, had contacted his present wife over telephone and threatened her that unless the petitioner agrees for the demand of Rs.20,00,000/-, they would implicate him in a criminal case.

3. When PW2 was asked during cross-examination about the above defence version, she denied the allegations in the above regard. Thereupon, the learned counsel appearing for the petitioner, before the trial court, attempted to play a recorded conversation in the mobile phone for confronting PW2 about the previous statements, which she was said to have given over telephone. But, according to the petitioner, the learned Special Judge did not permit the above course of procedure, for the reason that the above witness had already denied the specific questions put to her with regard to the above contentions, and that such a course could be adopted only after proving the genuineness of the conversation, and that it is not tampered or edited. It is further contended that PW2, upon hearing her voice, had stated that there was telephonic conversation between them and that she was not sure whether it was made by her or DW1. It is, for the aforesaid reason, that the petitioner seeks to recall PW2 for further cross-examination, and to summon the mother of the survivor to put questions to her about the alleged demand for money said to have been made for avoiding criminal prosecution against the petitioner. The petitioner is said to have produced the above mobile phone before the Trial Court for the purpose of using the same at the time of further cross-examination of PW2. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. It is observed by the learned Special Judge in paragraph No.6 of the impugned order that, at no point of time had the defence made any attempt to play any recorded conversation from the mobile phone of DW1 (the present wife of accused). It is further stated in paragraph No.7 of the impugned order that subsequent to the closure of prosecution evidence, the defence had examined the wife of the accused as DW1 and produced the mobile phone which was being used by her. In the same paragraph, the learned Special Judge had stated that transcripts of the calls are also produced by the defence and that during the examination of PW2, she had disclosed the mobile phone number which was being used by her at that point of time. DW1 is also stated to have disclosed the mobile phone number which was being used by her. In the said paragraph, it is further stated that the calls which were recorded in the mobile phone were played in Court.

6. The reason for rejecting the request for recalling PW2 for further cross-examination is stated in paragraph No.8 of the impugned order. According to the learned Special Judge, when the text of the alleged threatening calls have been suggested as questions during cross-examination, and thus brought on record, there is no reason for callin