The court ruled that reopening evidence is unwarranted where the witness's admission of communication diminishes the relevance of contradicting messages.

O R D E R

Annexure-A3 common order passed by the Fast Track Special Court, Chavakkad in Crl.M.P Nos.70/2024 and 99/2024 in S.C No.480/2022 on the files of the said Court, is under challenge in this petition filed under section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 by the accused in the said case.

2. The petitioner/accused faces criminal prosecution for the commission of offences under Sections 354A (II), 376(2)(N), 384, 450 and 506 I.P.C, and Sections 4 (1) r/w 3(a), 6(1) r/w 5(l), 8 r/w 7, 10 r/w 9(l), 12 r/w 11(iv) and 11(v) of the Protection of Children from Sexual Offences Act , 2012. The prosecution case is that the accused, who befriended a minor girl aged 16 years under the pretext of love, had resorted to aggravated penetrative sexual assault upon her, after criminally trespassing during night time, into the bedroom of the house where she has been residing. It is stated that the victim girl and the petitioner were having communications through social media platforms.

3. At a time when the entire evidence were over and the case was posted for final hearing, the petitioner filed Crl.M.P No.70/2024 for re-opening the evidence, and Crl.M.P No.99/2024 to send the mobile phone of the petitioner once more to the Forensic Science Laboratory for retrieving the instagram messages exchanged by the petitioner and the victim girl. According to the petitioner, the victim girl, while she was examined as PW2, denied the suggestion during cross-examination that she had sent messages to the petitioner asking him to bring sweets, cake and cigarettes, and also sent a message in whatsapp saying that the petitioner is the only one in her life and that she did not need anyone else. For contradicting the denial of the aforesaid suggestion made during cross-examination, the petitioner wanted the retrieval of the instagram and whatsapp messages, for which his mobile phone was sought to be sent to the Forensic Science Laboratory once more. The learned Special Judge dismissed the aforesaid applications with the observation that the attempt of the petitioner to bring-forth evidence pertaining to the consent of the victim, cannot be allowed since consensual relationship or emotional attachment between the petitioner and the survivor are totally irrelevant and immaterial as the child was aged only 16 years at the time of commission of the crime. It has been observed by the learned Special Judge in the impugned order that even if the argument advanced by the petitioner about the consensual relationship between the victim child and the petitioner is accepted, it would in no way dilute the gravity of the offence alleged.

4. Heard the learned counsel for the petitioner, the learned counsel for the second respondent, and the learned Public Prosecutor representing the State of Kerala.

5. It is argued by the learned counsel for the petitioner that the Trial Court was totally misconceived about the purpose for which the petitioner sought the analysis of his mobile phone at the Forensic Science Laboratory. According to the learned defence counsel, the instagram and whatsapp messages between the petitioner and the survivor were sought to be retrieved from the mobile phone of the petitioner, not for establishing the consensual relationship between the petitioner and the survivor, but for contradicting the statements given by the survivor during her evidence before the Trial Court and thus to impeach the creditworthiness of that witness. It is argued that the statements made by PW1 denying her active role in sending messages to the petitioner through social media platforms could be shown as totally false if the messages are retrieved from the mobile phone of the petitioner as requested by him. The learne