Kerala High Court
Xxx vs State Of Kerala on 2 July, 2025
2025:KER:48058
Crl.M.C.No.5314/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
CRL.MC NO. 5314 OF 2025
CRIME NO.981/2018 OF Kadakkal Police Station, Kollam
SC NO.103 OF 2019 OF FAST TRACK SPECIAL COURT,
PUNALUR
PETITIONER/ACCUSED:
XXX
XXX XXXX
BY ADVS.
SRI.T.T.MUHAMOOD
SHRI.GOKUL R.NAIR
SMT.JIJA JAMES MATHEW KANDATHIL
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER
KADAKKAL POLICE STATION, KOLLAM -, PIN - 691536
SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 01.07.2025, THE COURT ON 02.07.2025 PASSED THE
FOLLOWING:
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Crl.M.C.No.5314/2025 2
ORDER
Annexure A-3 order passed by the Fast Track Special Court,
Punalur on 05.04.2025 in Crl.M.P.No.12/2025 in S.C No.103/2019 is
under challenge in this petition filed by the accused in the said case
under Section 528 Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS). The aforesaid case relates to the commission of offence
under Section 324 and 376 I.P.C and Section 3(a) r/w 4, and Section
7 r/w 8 of Protection of Children from Sexual Offences Act (for short
'POCSO Act'). The impugned order was passed by the learned
Special Judge rejecting the prayer of the petitioner to recall the
victim who was already examined as PW4 for further
cross-examination. Reason stated in Annexure-A2 application for
recalling the victim was that her further cross-examination was
necessary to prove the age, date of birth, correct name and
expansion of initials.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor representing the State of Kerala.
3. Establishing the age of the child in a prosecution under
the POCSO Act is none of the concern of the accused. It is the
primary responsibility of the prosecution to show that the victim of
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the crime comes under the definition of child as envisaged under
Section 2(d) of the POCSO Act. Therefore, the contention of the
petitioner herein that the further cross-examination of the victim was
required for proving the age and date of birth, is preposterous. As
regards the correct name and expansion of initials, it has to be
stated that the above aspects are not having any relevance in this
case where the identity of the victim is not in dispute. As regards
the contention of the petitioner in Annexure-A2 application that the
mother of the victim did not give any answer when brought before
the Trial Court for examination on 05.02.2025, it is well explained in
Annexure-A3 order of the learned Special Judge. It is observed by
the learned Special Judge that she was blind, deaf and bed ridden,
and yet the accused cited her as a defence witness and made an
attempt to examine her before the said court, but it could not be
done since the Trial Court found on her appearance before that court
that she was not competent to testify.
4. Section 94(2) of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (for short 'JJ Act') deals with the mode of
determination of the age of a child. As per Section 94(2)(i) of the JJ
Act, the primary document to be looked into for ascertaining the age
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of the child is the birth certificate from the School, or the
matriculation or equivalent certificate from the concerned
Examination Board. In Yuvaprakash.P v. State represented by
Inspector of Police [AIR 2014 SC 630], the Hon'ble Supreme
Court has held that the date of birth certificate from the School or
matriculation or equivalent certificate by the concerned Examination
Board has to be firstly preferred as proof of age of the child. Rule
12(3)(a)(i) of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 which provides for relying upon the matriculation or
equivalent certificate, if available, to the exclusion of other
documents, quoted in Rishipal Singh Solanki v. State of Uttar
Pradesh and Others [(2021) 12 SCR 502] is extracted in the
aforesaid judgment in paragraph No.15.
5. As far as the present case is concerned, it is evident from
Annexure-A2 application itself that the School abstract and Aadhar
copy of the victim were already marked in evidence in the said case.
Thus, it appears that the prosecution has let in the primary evidence
to prove the age of the child. In that view of the matter, the
petitioner/accused cannot be heard to say that the victim has to be
again brought before the Trial Court and subjected to further
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cross-examination pertaining to her age, date of birth, correct name,
expansion of initials etc. It appears that the request in the above
regard is made by the petitioner to cause further humiliation to the
victim child by the procrastination of the proceedings. Section 33(5)
of the POCSO Act mandates that the Special Court shall ensure that
the child is not called repeatedly to testify in the court. It is true that
in an appropriate case, in order to meet the ends of justice, the
above mandate is liable to be relaxed. But, as far as the present
case is concerned, it is not possible to permit the further
cross-examination of the victim on the basis of the irrelevant and
trivial aspects stated in Annexure-A2 application of the petitioner.
6. It is stated by the petitioner in Annexure-A2 application
that some serious questions related to the initials and the date of
birth of the victim were omitted by the defence counsel and hence
she has to be recalled for further cross-examination. On that score,
it is to be noted that the failure of the counsel for the accused to put
certain questions during cross-examination is not a reason to invoke
the powers under Section 311 Cr.P.C (Section 348 of BNSS) and to
recall the witness who had already been cross-examined at length.
The incompetence of the counsel for the accused to conduct
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effective cross-examination is not a reason to invoke the exceptional
powers of the Court under the aforesaid Section. The proposition of
law in this regard has been laid down in A.G v. Shiv Kumar Yadav
and Another [2015 KHC 4602], wherein it has been held by the
Apex Court that the incompetence of the defence counsel in
cross-examining the witness, is not a reason for the recall of the
witness under Section 311 Cr.PC. It is further observed thereunder
that witnesses cannot be expected to face the hardship of appearing
in court repeatedly, particularly in sensitive cases. Paragraph No.15
of the aforesaid judgment of the Hon'ble Supreme Court is extracted
hereunder:
"15. The above observations cannot be read as laying
down any inflexible rule to routinely permit a recall on the
ground that cross - examination was not proper for reasons
attributable to a counsel. While advancement of justice
remains the prime object of law, it cannot be understood that
recall can be allowed for the asking or reasons related to
mere convenience. It has normally to be presumed that the
counsel conducting a case is competent particularly when a
counsel is appointed by choice of a litigant. Taken to its
logical end, the principle that a retrial must follow on every
change of a counsel, can have serious consequences on
conduct of trials and the criminal justice system. Witnesses
cannot be expected to face the hardship of appearing in
Court repeatedly, particularly in sensitive cases such as the
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present one. It can result in undue hardship for victims,
especially so, of heinous crimes, if they are required to
repeatedly appear in Court to face cross - examination."
7. Following the aforesaid decision, a learned Single Judge
of this Court has held in Parkson Estate & Industries, Cochin
and Another v. M/s. Trinity Trading, Kochi and Another
[2016 (1) KHC 278] that merely because certain questions were
not put to the witness by the earlier counsel, and the subsequent
counsel found that as a lacuna in the conduct of the case which,
according to him, is likely to affect the defence, it cannot be said as
a valid ground for recalling the witnesses already examined.
8. In view of the discussions aforesaid, the prayer in this
petition to set aside Annexure-A3 order of the Special Court, cannot
be allowed.
Resultantly, the petition stands dismissed.
(sd/-)
G. GIRISH, JUDGE
jsr
