Kerala High Court
Xxxxxx vs State Of Kerala on 3 September, 2024
2024:KER:67014
CRL.MC No. 976 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
CRL.MC NO. 976 OF 2024
CRIME NO.461/2021 OF VALAYAM POLICE STATION, KOZHIKODE
AGAINST THE ORDER DATED 04.01.2024 IN S.C.NO.1135 OF 2021 OF
FAST TRACK SPECIAL COURT, NADAPURAM.
PETITIONER/ACCUSED:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV T.K.KUNHABDULLA
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA THROUGH SHO
VALAYAM POLICE STATION,
KOZHIKODE DISTRICT, PIN-682031
* ADDL.R2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
* ADDL.2ND RESPONDENT IMPLEADED AS PER ORDER DATED
15.02.2024 IN CRL.M.A.NO.2/2024 IN
CRL.M.C.NO.976/2024.
R1 SRI.RENGIT GEORGE, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 03.09.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
2024:KER:67014
CRL.MC No. 976 of 2024
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ORDER
Dated this the 3rd day of September, 2024 This Crl.M.C. has been filed under Section 482 of the Code of Criminal Procedure (Cr.P.C. for short hereinafter) by the accused in S.C. No.1135/2021 on the files of Fast Track Special Court, Nadapuram, with prayer to quash Annexure A3 order, whereby the learned Special Judge dismissed CMP No.781/2023 in S.C.No.1135/2021.
2. In this matter, by filing a petition under Section 311 of Code of Criminal Procedure, the prosecution sought to recall PW1, PW8, PW11 and PW12 and also to issue summons to CW3 and CW14. Further PW8 was directed to produce the laptop and pen drive in which the CCTV footage copied first and to send the same, along with DVR, DVD and CD produced by PW13 to the Forensic Science Laboratory (FSL) for expert opinion. The reason 2024:KER:67014 CRL.MC No. 976 of 2024 -3- for seeking such a prayer has been summarised in paragraph 2 of Annexure A3 as under;
"2. The contentions in the petition, in brief, are as follows: On 18.08.2021, a complaint was lodged before the Valayam police station. After the crime was registered, the victim was referred to Government Taluk Hospital Nadapuram with a requisition from the concerned SHO. The duty doctor attached to Taluk Hospital examined the victim and noted the injuries found on his body. Dr.Prajitha conducted the examination, but instead of examining her, the Superintendent of Taluk Hospital Nadapuram was examined before the court as PW14. Therefore, Dr. Prajitha needs to be examined. To prove the presence of the victim at the accused's house, CCTV footage was copied to a pen drive, then to a laptop, and finally to a DVD . The investigating officer brought this on record, presenting the DVR and DVD in court. The technician from Binary Systems, 2024:KER:67014 CRL.MC No. 976 of 2024 -4- Parakadavu, was examined as PW8, and Ext.P6 was marked. PW8 installed the CCTV in the accused's house, conducted periodic maintenance, and hence had a fiduciary relationship with the accused. However, the investigating officer failed to note the hash value at the time of CCTV seizure. The prosecution alleges that the victim visited the accused's house more than once on 15.08.2021. The image copied onto the DVD is said to contain only one visit, but there is time difference noted in the CCTV footage, suggesting editing and tampering in the DVD at the instance of the accused before seizure. PW8 lacks the qualifications to provide evidence on the authenticity of the image and CCTV. Before relaying the CCTV footage, the DVD must be displayed to the victim in open court, which requires the recall of PW1. During the examination of PW11, vital evidence was omitted, necessitating her recall. PW13 seized an audio CD containing telephonic conversations between the victim and his brother Abdul Vasid 2024:KER:67014 CRL.MC No. 976 of 2024 -5- cited as CW3, after the alleged incident, which should be forwarded to the FSL according to the law. Hence, this petition."
3. The petitioner herein filed an objection as stated in paragraph 3 of the order, which is extracted as under;
"3. The contentions in the counter statement submitted by the accused, in brief, are as follows: This petition has been filed to delay the pronouncement of judgment and thereby prevent the accused from returning to Qatar to do his business. The petition is deemed unsustainable in the eyes of the law, especially considering it was filed when the final hearing is almost completed. Its purpose appears to be to fill gaps in the prosecution's case, and the reasons for the delay in filing the petition remain unexplained. The petition fails to provide strong and valid reasons to get it be allowed. In a petition filed under Section 311 of the Cr.P.C., no direction to produce documents 2024:KER:67014 CRL.MC No. 976 of 2024 -6- and send them for expert opinion can be made. The accused asserts that this petition is filed under the disguise of a denovo trial petition. PW8 was examined and marked Ext.P6, a certificate issued under Section 65B of the Evidence Act. The prosecution is now attempting to discredit Ext.P6 by claiming that PW8 is not qualified to give evidence on the authenticity of the CCTV image. The accused was taken into custody on 18.08.2021 and was kept until the evening of 19.08.2021. After verifying the CCTV image, the investigating officer confirmed the innocence of the accused, leading to his release. The accused went to Qatar thereafter, leaving no occasion for him to influence PW8. An application under Section 311 of the Cr.P.C. cannot be granted to the disadvantage of the accused or to cause prejudice to him. PW1 had no case that he had informed his brother through a mobile phone about the alleged incident. The prosecution's attempt is to being false evidence before the 2024:KER:67014 CRL.MC No. 976 of 2024 -7- court. PW13 made an attempt to fabricate the DVD to suit the prosecution's case. Ho the accused requests the dismissal of this petition."
4. Finally, the learned Special Judge allowed the petition for the reason stated in paragraph 9 of the order, which reads as under;
"9. In the case on hand, the allegation of the prosecution is that PWI was subjected to penetrative anal intercourse by the accused. In Ext.P17, the medical certificate proved through PW14, there is a recording of bodily injuries including sustained in anus noted by CW 14 during the examination of the victim. However, in the subsequent medical certificate marked as Ext. P3, prepared by PW3, there was no mention of external injuries. Therefore, there are serious inconsistencies between the two medical records produced by the prosecution. I find substantive force in the submission of the Prosecutor that the examination of CW14 is highly required to present 2024:KER:67014 CRL.MC No. 976 of 2024 -8- the actual facts before the court. Since a challenge has been raised by the prosecution at this stage regarding the genuineness of the CCTV footage contained in the DVD, resolving this uncertainty is necessary for dispensing justice. Therefore, recalling PW8 would not cause prejudice to the defence. It is seen that PW11 did not depose as to injuries endorses by her on FIS. The submission of the Prosecutor that CW3 is to be summoned to prove telephonic conversation and PW12 is to be recalled to prove the faults committed by him cannot be said to be unreasonable."
5. According to the learned counsel for the petitioner, as per Annexure A3 order, the prosecution has given the liberty to adduce fresh evidence in the form of denovo trial and the same is not permissible, by resorting to Section 311 of Cr.P.C.
6. The learned Public Prosecutor submitted that during investigation, material evidence failed to be collected and 2024:KER:67014 CRL.MC No. 976 of 2024 -9- later, the same was found out. Therefore, in order to protect the interest of the victim and prosecution in a case involving serious offences under the Protection of Children from Sexual Offences Act, the learned Special Judge allowed the petition. Therefore, the said order doesn't require any interference.
7. According to the learned counsel for the defacto complainant, the learned Special Judge allowed the petition after appraising the fact that material evidence allowed to be brought into to address the grievance of the prosecution as well as the victim for a just decision of the case.
8. On going through the reasons stated in paragraph 9 of the order, in the context of submissions made by the learned Public Prosecutor and the learned counsel for the defacto complainant, there is no reason to interfere with the order since the learned Special Judge allowed the petition holding that such a course of action is necessary for the just decision of the case.
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9. Accordingly, the order does not require any interference and the same is dismissed.
Registry is directed to forward a copy of this order to the trial court for information and compliance.
Sd/-
A. BADHARUDEEN JUDGE bpr 2024:KER:67014 CRL.MC No. 976 of 2024 -11- APPENDIX OF CRL.MC 976/2024 PETITIONER'S ANNEXURES Annexure A1 TRUE COPY OF THE PETITION SC NO.1135/2021 OF FAST TRACK SPECIAL COURT, NADAPURAM DATED 12.12.2023 Annexure A2 TRUE COPY OF THE COUNTER STATEMENT DATED 1.1.2024 IN CMP NO. 781/2023 BEFORE THE COURT BELOW Annexure A4 TRUE COPY OF THE DIARY EXTRACT OF THE PROCEEDINGS OF FAST TRACK SPECIAL COURT NADAPURAM Annexure A5 TRUE COPY OF THE BAIL APPLICATION DATED 25.1.2023 BEFORE THE POCSO COURT, NADAPURAM Annexure A6 A PHOTO COPY OF THE ORDER IN CMP.NO.117/2024 DATED 2.4.2024 OF THE FAST TRACK SPECIAL COURT, NDAPURAM.