Kerala High Court
Jayan vs State Of Kerala on 31 January, 2025
2025:KER:8126
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 31ST DAY OF JANUARY 2025 / 11TH MAGHA, 1946
CRL.MC NO. 1033 OF 2025
CRIME NO.725/2023 OF SOORANADU POLICE STATION, KOLLAM
PETITIONER/ACCUSED/PETITIONER:
1 JAYAN
AGED 37 YEARS
S/O BABURAJAN PILLAI, JAYABHAVANAM VEEDU,
THRIKKUNNAPPUZHA THEKKU MURI,
SOORANADU VILLAGE -, PIN - 690522
BY ADVS.
UMMUL FIDA
C.IJLAL
P.PARVATHY
MAJID MUHAMMED K.
ANANDU R.
RESPONDENTS/RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV.SRI.C.N.PRABHAKARAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
31.01.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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C. JAYACHANDRAN, J.
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Crl.M.C.No.1033 of 2025
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Dated, this the 31st day of January, 2025
ORDER
The petitioner is aggrieved by Annexure-A5 Order, which disallowed an application under Section 311 Cr.P.C. to recall PW8, a Village Officer. As a matter of fact, three witnesses were sought to be examined on the part of the defence, of which, two were allowed by the trial court by virtue of the impugned Annexure-A5 Order. Insofar as PW8/Village Officer is concerned, the application under Section 311 Cr.P.C. was refused.
2. Learned Counsel for the petitioner submits that the prosecution allegation is one of carnal intercourse on a thirteen year old minor, which took place in March, 2022 when the defacto complainant/minor, along with her friends were taking a bath at Parekadav Thodu. The allegation is that, the accused immersed the defacto complainant into the water and shoved his genitals to the mouth of the defacto 2025:KER:8126 Crl.M.C.No.1033 of 2025 -3- complainant. According to the learned Counsel, in the subject 'thodu', there is water having a reasonable depth only at one portion, which fact is admitted by the victim, when she was examined as PW1. The petitioner would contend that Annexure-A6 scene plan prepared by PW8 is incomplete as regards the length, width and depth of the scene of occurrence. The depth and flow of water in the bathing ghat at Parekadav thodu is relevant to prove the innocence of the accused, the details of which are absent in Annexure-A6 scene plan. Thus, the petitioner wants PW8 to measure the length, width and depth of the pit on the eastern side of bathing ghat of Parekadav thodu. He also wants to ascertain whether ten persons can bath simultaneously having regard to the width of the thodu. According to the petitioner, the aspects which were subsequently required to be noticed were not within the knowledge of the accused/petitioner when PW8 was cross-examined. It is in such circumstances that an additional witness list was filed to examine three persons, of whom, the Village Officer was expected to prepare a scene plan depicting the above referred information.
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3. This application was seriously opposed by the learned Senior Public Prosecutor. Referring to the impugned Annexure-A5 Order, it was pointed out that the refusal of Annexure-A3 witness list insofar as it pertains to the Village Officer/PW8 is concerned, is perfectly legal. It was pointed out that the entire prosecution evidence was adduced and the accused was questioned under Section 313(1)(b) Cr.P.C.. Thereafter, seven witnesses were cited from the defence side, of which, five witnesses were examined as DW1 to DW5, through whom Exts.D1 to D10 were marked. It is thereafter the present additional witness list was filed seeking to examine three more witnesses, of which, the examination in respect of two witnesses were allowed by the trial court by virtue of Annexure-A5 impugned Order and the examination in respect of PW8/the Village Officer was refused. Learned Special Judge found that the scene of occurrence is stated in Ext.P5 scene Mahazar and that a sketch which is sought to be produced is not something in the custody of the Village Officer, but one to be prepared in accordance with the requirements of the petitioner/accused. Allowing an application as required by 2025:KER:8126 Crl.M.C.No.1033 of 2025 -5- the petitioner/accused would amount to an investigation into the place of occurrence by the Village Officer concerned, which was not permissible in law. Learned Public Prosecutor would submit that there is no error of law, whatsoever, in the course adopted in Annexure-A5 Order.
4. Having heard the learned Counsel appearing for the respective parties, this Court finds little merit in the instant Crl.M.C. Primarily, this Court cannot endorse the submission made by the learned Counsel for the petitioner that the aspects which are now required to be ascertained were not in the notice of the petitioner/accused. PW8 was examined to prove Ext.P5 scene plan. He was cross-examined in detail by the defence Counsel. If that be so, the argument that these aspects were not in his notice, is difficult to countenance. That apart, the line of reasoning adopted by the learned Special Judge that a Village Officer cannot be required to prepare a sketch in accord with the requirements of the accused person cannot be found fault with seriously. As pointed out, the sketch sought to be produced is not something in the custody of the Village Officer, but one to be prepared by noting the specified 2025:KER:8126 Crl.M.C.No.1033 of 2025 -6- details as required by the petitioner/accused. Moreover, this Court also finds that adequate opportunity has already been granted to the petitioner/accused to prove the defence case. As many as five witnesses were examined on the defence side and Exts.D1 to D10 were marked. It is thereafter that the petitioner/accused filed an additional witness list consisting three persons, of whom, as many as two were permitted to be called for letting in evidence. It is only in respect of PW8/the Village Officer, who was already examined by the prosecution and cross-examined by the defence, that application was disallowed. This Court cannot find tangible ground to find fault with in Annexure-A5 impugned Order. In the result, the challenge against the same fails and this Crl.M.C. will stand dismissed.
Sd/-
C. JAYACHANDRAN
SKP/31-01 JUDGE
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APPENDIX OF CRL.MC 1033/2025
PETITIONER'S ANNEXURES:
ANNEXURE A3 A TRUE COPY OF CRL. M.P. NO. 914/2024 IN SC
NO.854 OF 2023 BEFORE THE COURT OF THE FAST TRACK SPECIAL JUDGE, KARUNAGAPPALLY ANNEXURE A4 A TRUE COPY OF THE OBJECTION DATED 08/01/2025 FILED BY THE IN CRL. M.P. NO.
914/2024 IN SC NO.854 OF 2023 BEFORE THE COURT OF THE FAST TRACK SPECIAL JUDGE, KARUNAGAPPALLY ANNEXURE A5 TRUE COPY OF THE ORDER DATED 18/01/2025 IN CRL. M.P. NO. 914/2024 IN SC NO.854 OF 2023 BEFORE THE COURT OF THE FAST TRACK SPECIAL JUDGE, KARUNAGAPPALLY ANNEXURE A6 A TRUE COPY OF THE SCENE PLAN OF THE FIRST SCENE OF OCCURRENCE DATED 03/06/2023 SUBMITTED BY THE VILLAGE OFFICER, SOORANAD VILLAGE RESPONDENTS' ANNEXURES: NIL TRUE COPY P.A. TO JUDGE