Can a Witness be recalled by invoking Sec.311 CrPC to fill up lacunas in Cross-Examination? HC replies, Read Order

  

Is failure to mark omissions from a witness' previous statements during their cross-examination in POCSO Cases enough reason to recall them? Kerala High Court disagrees.

Single-Judge Bench of Justice M.R. Anitha ruled that it is not always a valid ground, unless case gets affected in an unjustifiable manner.

She however, clearly ramarked that her ruling shouldn't be taken as a precedent.

"I also make it clear that I do not want to make it as a precedent that the materials omissions need not be marked during the cross-examination of witnesses."

Finding the contentions made for recalling the witness in the present case to be weightless and not affecting the result of the case, she observed that there is no 'justifiable' reason. She also remarked:

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"there is no doubt that the court can recall a witness if it is found that the evidence sought to be let in is necessary for a just decision of the case or that it is necessary for finding out the truth or obtaining proper proof of the facts."

 Brief Facts of the Case

The petitioner herein was an accused charged with Section 376(2)(f) of IPC (rape) and Section 3 r/w Sections 4, 5  r/w. Section 6 of POCSO Act.

According to the petitioner, all prosecution witnesses except for the Investigating Officer were examined. However, he alleged that during the examination of the first two prosecution witnesses, he failed to instruct his Counsel on some of the questions to be put to those witnesses which he deems as neccessary to prove him innocent.

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It was further asserted that there are material contradictions in the deposition of the victim and the mother from statements under the 161 and 164 CrPC. So is pleaded that the Counsel omitted to call the attention of witnesses to that contradictions.

Accordingly, he moved a plea under Section 311 of CrPC to recall the victim and her mother before the Special Court.

It was the conention of the accused that it is a settled position of law that material omissions amount to contradiction and that the relevant portion has to be put to the witnesses and the witnesses have to be given an opportunity to explain the inconsistency.

It was further argued that during the examination of PWs 1 and 2, several material omissions were brought out but weren't marked and therefore it was highly necessary to recall the witnesses.

The Counsel cited slew of cases to build his contention including SC judgements in Tahsildar Singh & ANR Vs. The State of Uttar Pradesh, 1959 Latest Caselaw 63 SC, State of Maharashtra Vs. Bharat Chaganlal Raghani & Ors, 2001 Latest Caselaw 318 SC, V.K. Mishra & ANR. Vs. State of Uttarakhand & ANR, 2015 Latest Caselaw 480 SC, Karan Singh & Ors Vs. State of Madhya Pradesh, 2003 Latest Caselaw 477 SC, 

High Court Observations

The Court examined them and found non suiting and having similar circumstances as the present one and thus rejected the Counsel for Petitioner's contentions.

It observed that Section 33(5) of the POCSO Act provides that Special Court shall ensure that the child is not called repeatedly to testify in the court.

"Since Section 31 of the Act starts with a non obstante clause, no doubt, application of the provisions of the Code, would be subject to Section 33(5) of the Act, which guard the special court from repeatedly calling the child to testify in the court."

 So there is a bar for recalling the victim in the case repeatedly for testifying before the court., the Court noted.

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It was further observed that the fact that the omissions were not marked during cross-examination is not at all a sufficient reason for recalling the witnesses.

The Court pointed to the deposition of the mother wherein she revealed that almost all the omissions brought out during cross-examination.

The Court thus noted that the contention about failure to mark omissions and thereby seek to recall the witnesses was perhaps a subsequent development at the instance of the accused:

"...the specific allegation of the accused while filing Section 311 petition was that he omitted to give instruction to the advocate regarding some questions to be put to PW1 and PW2. He has no case about the failure to mark omissions during the cross-examination of the witnesses at the time of filing Section 311 petition."

 The Court relied on SC Judgement in Rajaram Prasad Yadav Vs. State of Bihar & ANR., 2013 Latest Caselaw 485 SC wherein  it was established that a court can recall a witness if it is found that the evidence sought to be let in is necessary for a just decision of the case or that it is necessary for finding out the truth or obtaining proper proof of the facts.

The Court remarked that the omissions have already been explained by the witnesses and there is substantial compliance with the procedures under Section 145 of the Indian Evidence Act.

Read Order Here:

 

 

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(With input from news agency language)

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