XXXXX vs State Of Kerala

A. Badharudeen, J

In Crl.M.C No.3816 of 2024, the sole accused in S.C.No.842/2023 on the files of the Special Court for trial of Protection of Children from Sexual Offences (POCSO), Manjeri, assails order in Crl.M.P.No.62/2024 dated 15.04.2024.

In Crl.M.C No.3810 of 2024, the sole accused in S.C.No.850/2023 on the files of the Special Court for trial of Protection of Children from Sexual Offences (POCSO), Manjeri, assails order in Crl.M.P.No.56/2024 dated 15.04.2024.

In Crl.M.C No.3807 of 2024, the sole accused in S.C.No.851/2023 on the files of the Special Court for trial of Protection of Children from Sexual Offences (POCSO), Manjeri, assails order in Crl.M.P.No.63/2024 dated 15.04.2024.

In Crl.M.C No.3798 of 2024, the sole accused in S.C.No.841/2023 on the files of the Special Court for trial of Protection of Children from Sexual Offences (POCSO), Manjeri, assails order in Crl.M.P.No.51/2024 dated 15.04.2024.

Heard the learned counsel for the petitioners in all these cases and the learned Public Prosecutor in detail. Perused the relevant documents.

In all these cases after examination of PW1 and PW2, the respective petitioner filed petition under Section 311 of the Code of Criminal Procedure (`Cr.P.C’ for short) with prayer to recall and re-examine PW1 and PW2. The sole ground raised to recall and re-examine PW1 and PW2 is that some material questions omitted to be asked to the witnesses during the time of initial cross examination. The prosecution side opposed all the petitions on the ground that PW1 and PW2 were cross examined at length at the initial time when the petitioners were given opportunity to cross examine and the attempt to put omitted questions is nothing but to fill up the lacuna in evidence, which is not permissible under law.

While assailing the orders impugned, the learned counsel for the respective petitioner would submit that at the time when PW1 and PW2 were examined, the learned counsel for the petitioners could not cross examine them in detail and accordingly some omissions occurred in the cross examination. Therefore, in the interest of justice, one more opportunity may be given to the petitioners to cross examine PW1 and PW2. It is also submitted that in these cases sexual molestation of a minor girl, aged 12 years, was alleged against her own father and 3 other members of the family, without any materials. Therefore, the omissions may be allowed to put to PW1 and PW2 after recalling them.

The learned Public Prosecutor strongly opposed interference in the orders impugned on the submission that one among the witnesses sought to be recalled is the victim, for which restriction under Section 33(5) of the POCSO Act would apply and PW2 is none other than the mother of PW1. According to the learned Public Prosecutor, in order to supply omissions, recalling or reexamination is totally prohibited and, therefore, the trial court rightly dismissed all the above petitions and the same would not require any interference.

As regards to consideration of the matters in a petition filed under Section 311 of Cr.P.C is well settled. In a recent decision of the Apex Court reported in [2024 LiveLaw (SC) 615] Madhab Chandra Pradhan and Others v. State of Odisha (Special Leave Petition (Crl.) No.10082/2024) also, the Apex Court deprecated the practice of recalling of child witness repeatedly in view of the mandate under Section 33(5) of the POCSO Act. In fact, a witness already examined in chief and crossed at length need not be recalled and re-examined with a view to erase his earlier evidence, by the subsequent version in view of recalling.

Here it is discernible that PW1 the minor victim, aged 12 years, and PW2, her mother, were examined at length. The sole reason urged to recall them as stated by the learned counsel for the respective petitioners is omission to cross examine them by asking certain relevant questions. In fact, recalling of a witness is not permissible to supply omissions and the same is akin to filling up the lacuna in evidence. Therefore, the trial court rightly dismissed the applications and there are no justified reasons to interfere with the impugned orders. In cases involving POCSO Act offences, recalling of child witness is subject to the mandate of Section 33(5) of the POCSO Act and the same imposes restriction in doing the said exercise, apart from the normal rule under Section 311 of Cr.P.C.

Therefore, all the orders impugned are upheld. Consequently, these Criminal Miscellaneous Petitions must fail and are dismissed accordingly.

Registry is directed to forward a copy of this order to the jurisdictional court for information and further steps.