Kerala High Court
Sasibhanu vs State Of Kerala on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
CRL.MC NO. 4707 OF 2021
CRL.M.P.196/2021 AND 201/2021 IN CC.439/2019 OF FAST TRACK SPECIAL
COURT, PATHANAMTHITTA
PETITIONER
SASIBHANU
AGED 58 YEARS
SHINU BHAVANAM, NEAR VAYANASHALA, MALLASSERY P.O.,
PRAMADOM VILLAGE, PATHANAMTHITTA,PIN-689 646
BY ADVS.
GEORGE ABRAHAM PACHAYIL
MIDHUN DAS
RESPONDENT
STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
PATHANAMTHITTA ,PIN-689 645, (THORUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA)
PP SANGEETHARAJ N.R.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
25.11.2021, THE COURT ON 30.11.2021 DELIVERED THE FOLLOWING:
Crl.MC.4707/21
2
ORDER
Dated : 30th November, 2021
1. This petition has been filed against the common order
in Crl.M.P.196/2021 and 201/2021 in S.C.439/2019
(Annexure-A7 and A8) on the file of Fast Track Special
Judge, Pathanamthitta, which has been charged under
Section 354 IPC r/w Sections 8 and 7 of Protection of
Children From Sexual Offence Act, 2012.
2. Crl.M.P.196/2021 has been filed to recall DW2 for
production of documents and Crl.M.P.201/2021 has been
filed for recalling DW2 under Section 311 Cr.P.C. By
the impugned order, the learned Special Judge dismissed
both the petitions.
3. In Annexure-A7 petition the allegation of the
petitioner/accused is that at the time of examination,
DW2 deposed that he has got the sketch and photos with
him and production of those documents before the court
is necessary. Hence petitioner sought for examination
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of DW2 again under Section 311.
4. In Annexure-A8, it is contended by him that the police
has implicated him in this case without producing
necessary documents. The scene mahazar prepared is
false and in accordance with that, the Village Officer
prepared the scene plan. DW2 is the owner of the
property and during the examination. DW2 deposed that
he has got the sketch and photos of the property. Hence
it is necessary to produce the sketch and photos in the
possession of DW2 in this case for a just decision of
this case. Hence he has sought for a direction to DW2
to produce the rough sketch and photos before the
Court. The learned Public Prosecutor raised serious
objections in allowing the petitions and after hearing
both sides, the impugned order was passed.
5. The learned counsel placed reliance on Nitya
Dharmananda and Ors. v. Gopal Sheelum Reddy and Ors.
(Crl.A.2114/2017 and Crl.A.2115/2017 arising out of
Special Leave Petition (Crl) 1176/2017 dated 7.12.2017;
Rajaram Prasad Yadav v. State of Bihar and Ors.
Crl.MC.4707/21
(MANU/SC/0663/2013); Natasha Singh v. CBI (State)
(MANU/SC/1483/2013 - judgment in Crl.A.709/2013 arising
out of SLP 3271/2013 dated 8.5.2013; Hanuman Ram v.
The State of Rajasthan and Ors (MANU/SC/8107/2008) and
also Iddar and Ors. v. Aabid and Ors.
(MANU/SC/7857/2007).
6. In Nitya Dharmananda's case the scope of invocation of
power under Section 91 of Cr.P.C. was discussed.
7. In Rajaram Prasad Yadav's case paragraph 23 was
highlighted by the learned counsel which reads as
follows :
"From a conspectus consideration of the above decisions,
while dealing with an application under Section 311 Code
of Criminal Procedure read along with Section 138 of the
Evidence Act, we feel the following principles will have
to be borne in mind by the Courts:
(a) whether the Court is right in thinking that the new
evidence is needed by it ? Whether the evidence sought to
be led in under Section 311 is noted by the Court for a
just decision of a case ?
(b) The exercise of the widest discretionary power under
Section 311 Code of Criminal Procedure should ensure that
the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as thereby
the ends of justice would be defeated.
(c) If evidence of any witness appears to the court to be
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essential to the just decision of the case, it is the
power of the court to summon and examine or recall and re-
examine any such person.
(d) The exercise of power under Section 311 Code of
Criminal Procedure should be resorted to only with the
object of finding out the truth or obtaining proper proof
for such facts, which will lead to a just and correct
decision of the case.
(e) The exercise of the said power cannot be dubbed as
filling in a lacuna in a prosecution case, unless the
facts and circumstances of the case make it apparent that
the exercise of pwer by the Court would result in causing
serious prejudice to the accused, resulting in miscarriage
of justice.
(f) The wife discretionary power should be exercised
judiciously and not arbitrarily.
(g) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to recall
him for further examination in order to arrive at a just
decision of the case.
(h) The object of Section 311 Code of Criminal Procedure
simultaneously imposes a duty on the Court to determine
the truth and to render a just decision.
(i) The Court arrives at the conclusion that additional
evidence is necessary, not because it would be impossible
to pronounce the judgment without it, but because there
would be a failure of justice without such evidence being
considered.
(j) Exigency of the situation, fair play and good sense
should be the safe guard while exercising the discretion.
The Court should bear in mind that no party in a trial can
be foreclosed from correcting errors and that if proper
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evidence was not adduced or a relevant material was not
brought on record due to any inadvertence, the Court
should be magnanimous in permitting such mistakes to be
rectified.
(k) The Court should be conscious of the position that
after all the trial is basically for the prisoners and the
Court should afford an opportunity to them in the fairest
manner possible. In that parity of reasoning, it would be
safe to err in favour of the accused getting an
opportunity rather than protecting the prosecution against
possible prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious exercise
of such a discretionary power, may lead to undesirable
results.
(l) The additional evidence must not be received as a
disguise or to change the nature of the case against any
of the party.
(m) The power must be exercised keeping in mind that the
evidence that is likely to be tendered, would be germane
to the issue involved and also ensure that an opportunity
of rebuttal is given to the other party.
(n) The power under Section 311 Code of Criminal Procedure
must therefore, be invoked by the Court only in order to
meet the ends of justice for strong and valid reasons and
the same must be exercised with care, caution and
circumspection. The Court should bear in mind that fair,
trial entails the interest of the accused,the victim and
the society and, therefore, the grant of fair and proper
opportunities to the persons concerned, must be ensured
being a constitutional goal, as well as a human right."
8. In Natasha Singh's case the ambit and scope of the
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exercise of jurisdiction under section 311 Cr.P.C has
been discussed in detail wherein it has been held in
paragraph 18 that an application filed under Section
311 Cr.P.C must be allowed if fresh evidence is being
produced to facilitate a just decision.
9. In Hanuman Ram's case, the object and scope of exercise
of powers under Section 311 Cr.P.C has been dealt with.
10. In Iddar's case again the object and scope of the
exercise of powers under Section 311 Cr.P.C has been
dealt with.
11. No doubt, Section 311 Cr.P.C empowers the Court to
recall a witness at any stage of any enquiry or trial
if it is found to be essential for the just decision of
the case. So the crux of the issue is whether the
recalling of the witness is necessary for the just
decision of this case. Here, the case of the petitioner
is that DW2 is the owner of the property and he has got
sketch and photographs of the place of occurrence which
would prove the existence of compound wall and which in
turn would falsify the case of the prosecution and
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hence it is necessary to recall and examine him and
also to direct him to produce the sketch and
photographs. It is also contended in the petition that
the sketch prepared by the Village Officer is in tune
with the scene mahazar and it is incorrect.
12. The impugned order passed by the learned Sessions
Judge would go to show that it is nobody's case that
property of DW2 and the scene of occurrence are exactly
the same. It is also found by the learned Sessions
Judge that the evidence of DW2 does not appear to be
essential for the just decision of this case and
further that DW2 has been examined at length and there
is no sufficient ground for issuing the summons to DW2.
13. Petitioner produced copy of the deposition of the
victim girl. It is clearly stated in chief examination
by the victim that there is a construction (kettu) in
front of her house where there is a step and that is
the place of occurrence. During cross examination, in
page No.4 there is a specific question put to her that
on standing on either side of the construction (kettu),
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the houses on either side could be seen. It is further
stated that house of Prabha chechi and Radha could be
seen. On going through the entire deposition of the
victim, there is no question put about the presence of
any compound wall. Further in page No.10, she stated
that the place where the construction is situated is a
rubber estate and in the place where the steps ends
there is a small brook. In that area, closing the
steps, there is an iron gate. So nothing is seen from
the statement of the victim probabilising existence of
any compound wall, as contended by the learned counsel
for the petitioner.
14. So also now the petitioner, seeks to recall DW2 and
also to give a direction to him to produce the photos
and sketch in his possession. But it is not disclosed
as to who has prepared the sketch or who has taken the
photos. Only the person who took the photos or prepared
the sketch can prove the sketch and photos also. So the
production of the sketch or the photo by DW2 also will
not have any effect in proving those documents. So on
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evaluating the above facts and circumstances, findings
of the learned Sessions Judge that it is nobody's case
that the property of DW2 and the scene of occurrence
are exactly the same, is to be taken note of. So I do
not find any illegality or irregularity in the impugned
order passed by the trial Court in finding that the
evidence sought to be tendered is not necessary or
essential for the just decision of the case. Hence I do
not find any merit in the Crl.M.C and accordingly it is
dismissed.
Sd/-
M.R.Anitha, Judge
Mrcs/26.11.
Crl.MC.4707/21
APPENDIX OF CRL.MC 4707/2021
PETITIONER ANNEXURE
Annexure A1 DEPOSITION OF PW1 GIVEN BEFORE THE HON'BLE
TRIAL COURT INS C 439/2019, DATED 19.04/2019
Annexure A2 DEPOSITION OF DW2 GIVEN BEFORE THE HON'BLE
TRIAL COURT IN SC 439/2019, DATED 08.07.2021
Annexure A3 SCENE MAHAZAR PREPARED BY THE INVESTIGATION
OFFICER ON 25.04.2019
Annexure A4 SCENE PLAN PREPARED BY VILLAGE OFFICER,
PRAMADOM ON 13.05.2019 FOR THE PURPOSE OF
THE PERSECUTION CASE
Annexure A5 A SITE PLAN OF THE PROPERTY PREPARED AT THE
INSTRUCTION OF THE OWNER OF THE PROPERTY
(DW2) BY A LICENSED ARCHITECT, ON
08.02.2021, SHOWING THE DETAILS OF THE
GRANITE WALL AND IRON GATE
Annexure A6 PHOTOGRAPHS, 5 IN NUMBER DEPICTING THE
BOUNDARY WALL AND GATE OF THE PROPERTY,
WHICH IS THE SCENE OF OCCURENCE DATED NIL
Annexure A7 CERTIFIED COPY OF CRL.M.P.NO.201/2021 FILED
UNDER SECTION 311 OF CR.PC DATED 16.09.2021
Annexure A8 CERTIFIED COPY OF CRL.M.P. NO.196/2021 FILED
UNDER SECTION 91 OF CR.PC DATED 14.09.2021
Annexure A9 CERTIFIED COPY OF THE COMMON ORDER OF THE
HON'BLE TRIAL COURT DISMISSING THE
PETITIONERS CRL.M.P.196/2021 AND CR MP
201/2021 IN S C 439/2019, DATED 25/09/2021
