Akhil Vincent v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE M.R.ANITHA ``` ``` TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943 ``` ``` CRL.MC NO. 4225 OF 2021 ``` ``` S.C.NO.770/2017 ON TEH FILE OF THE FAST TRACK SPECIAL COURT, PERUMBAVOOR ``` ``` CRIME NO.1418/2016 OF PUTHENCRUZ POLICE STATION ``` ## **`PETITIONERS/ACCUSED:`** ``` AKHIL VINCENT AGED 33 YEARS S/O.VINCENT @ VIJAYAN, ANU BHAVAN HOUSE, VELOOR KARA, PUTHENCRUZ VILLAGE. ``` ## **`BY ADV BIJU C ABRAHAM`** ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031. ``` ## **`BY ADV. SANGEETHARAJ.N.R, PUBLIC PROSECUTOR`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4225 OF 2021 ``` ``` -2- ``` ## **ORDER** This Crl.M.C. has bee filed against the order in C.M.P. No.226/2021 in S.C. No.770/2017 dated 03.09.2021 on the file of the Fast Track Special Court, Perumbavoor in crime No.1418/2016 of Puthencruz police station. The petitioner is the sole accused in the said crime. 2. The prosecution allegation is that on 07.10.2015 at about 9.30 p.m., the accused committed rape upon the defacto complainant at her rented house and caught hold of her right hand and twisted the same and thereafter repeated the act after one month. It is also alleged that the accused promising to marry the defacto complainant intentionally induced her to sexual intercourse and impregnated her and thereby committed offences punishable under Sections 370(1), 376(2)(n), 417 and 506(1) of IPC. 3. According to the learned counsel for the petitioner, prosecution evidence and evidence in the above sessions case were over. In paragraph 6 of the impugned order, it has been stated by the learned Sessions Judge that the prosecution adduced oral and documentary evidences. Prosecution filed petition during ``` CRL.MC NO. 4225 OF 2021 ``` **==> picture [22 x 9] intentionally omitted <==** the course of final hearing. The learned counsel for the petitioner would contend that on three days arguments was advanced on the side of the accused and it is during that course, that the present petition under Section 311 Cr.P.C. was filed. Hence, according to him, this is only to fill up the lacuna and it will cause prejudice to the accused. Annexure A2 is the petition filed by the prosecutor under Section 311 Cr.P.C. In that petition, it has been stated that the learned Public Prosecutor omitted to ask some relevant questions with regard to the date of occurrence. Hence the reexamination of PW1 is necessary and that evidence is essential for the just decision of the case. Hence, the petition for recalling PW1 has been filed. 4. The learned counsel for the petitioner on the other hand brought to my attention the allegations in 311 Cr.P.C. petition filed by the respondent. “This petition filed by Special Public Prosecutor u/s 311 Cr.PC in the above case. That in this case the evidence of prosecution and defence side is over and the case stands for further hearing. In this case it was omitted to ask some relevant questions with regard to the date of occurence. It is a mistake happened from the part of prosecution. To cure this mistake the re examination of PW1 is necessary and that evidence is essential for the just decision of the case. So it is highly necessary for ``` CRL.MC NO. 4225 OF 2021 ``` ``` -4- ``` the prosecution to re examine the PW1. It will not be affected by any sort of prejudice to the accused. Hence it is humbly prayed that this Hon'ble Court may be pleased to recall the PW1 and allow me to re examine her for the just decision of the case.” 5. The learned counsel for the petitioner would further take my attention to the court charge framed in the above case. It would go to show that Annexure A1 is the copy of the court charge. In paragraph Nos.1 and 2 in the court charge, 07.10.2015 and one month thereafter are the dates of occurrence mentioned in the charge. The extract of the evidence of prosecutrix would go to show that already she had given a date of 07.10.2015 and a day thereafter. The evidence of PW1 extracted from the objection would go to show that the petitioner has given the date of incident as after 07.10.2015 on one occasion and another occasion she had referred about the date as 04.10.2015. Then she refers 27.10.2015. So it appears that in order to clarify the discrepancy in evidence with regard to the date which has crept in during the cross examination, now the prosecutor wanted to recall PW1. 6. In **RajaRam Prasad Yadav V.State of Bihar and Another [2014 (4) SCC (CRL) 256]** a two judge Bench of the Apex court dealt with the nature and scope of Section 311 Cr.P.C. ``` CRL.MC NO. 4225 OF 2021 ``` ``` -5- ``` Paragraph 17 of the said decision provides the principles to be borne in mind by the courts which dealing with application under Section 311 Cr.P.C which is relevant in this context to be extracted which reads thus:- “17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts: 17.1. 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? 17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the court to be 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. 17.4. The exercise of power under Section 311 CrPC 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. 17.5. 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 power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. ``` CRL.MC NO. 4225 OF 2021 ``` ``` -6- ``` 17.7 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. 17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. 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. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, 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 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. 17.11. 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. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. 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. 17.14. The power under Section 311 CrPC 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 ``` CRL.MC NO. 4225 OF 2021 ``` ``` -7- ``` 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.” ## 7. **Rajendra Prasad V.Narcotic Cell [1999 (6) SCC** **110]** also deals with Section 311 Cr.P.C and when the witnesses can be called or resummoned. Paragraphs 8 and 10 are relevant in this extract which reads thus:- “8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper 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. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.” “10. Dealing with the corresponding section in the old Code (Section 540) Hidayatullah, J. (as the learned Chief Justice then was) speaking for a three-Judge Bench of this Court had said in Jamatraj Kewalji Govani v. State of Maharashtra as follows: "It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the enquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case." ``` CRL.MC NO. 4225 OF 2021 ``` ``` -8- ``` 8. The above settled position of law would make it clear that the wide discretionary power vested with the court under Section 311 to be exercised judiciously and not arbitrarily. 9. It appears that the petition as sought for by the petitioner if allowed, it will amount to filling up the lacuna of the prosecution evidence and that would definitely cause prejudice to the petitioner/accused also. It also not seems necessary for the just decision of the case. In the said circumstances, I am of the view that Annexure A4 order impugned cannot be sustained in law and hence it is liable to be set aside. In the result, Annexure A4 order passed by the learned Assistant Sessions Judge recalling PW1 is hereby set aside and Crl.M.C. stands allowed. **Sd/M.R.ANITHA JUDGE** nkr ``` -9- ``` ## **`CRL.MC NO. 4225 OF 2021`** ## **`APPENDIX OF CRL.MC 4225/2021`** ## **`PETITIONER ANNEXURE`** ``` Annexure A1 ``` ``` TRUE COPY OF THE CHARGE IN S.C.NO.770/2017 DATED 5/11/2020 ON THE FILES OF THE COURT OF THE SPECIAL JUDGE FAST TRACK, PERUMBAVOOR. ``` ## **`Annexure A2`** ``` TRUE COPY OF THE PETITION 12/8/2021 FILED BY THE PROSECUTION IN CMP NO.226/2021 IN S.C.NO.770/2017 ON THE FILES OF THE FAST TRACK SPECIAL COURT, PERUMBAVOOR. ``` ## **`Annexure A3`** ``` TRUE COPY OF THE OBJECTION DATED 12/8/2021 SUBMITTED BY THE PETITIONER CMP NO.226/2021 IN S.C.NO.770/2017 ON THE FILES OF THE FAST TRACK SPECIAL COURT, PERUMBAVOOR. ``` ``` Annexure A4 ``` ``` CERTIFIED COPY OF THE ORDER DATED 3/8/2021 PASSED BY THE FAST TRACK SPECIAL COURT, PERUMBAVOOR IN CMP NO.226/2021 IN S.C.NO.770/2017. ```