Bineesh G v State of Kerala and Inspector of Police, Mananthavady Police Station, Wayanad District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** ## **Crl.MC.No.1440 of 2019** **AGAINST THE ORDER/JUDGMENT IN CRMP 220/2019 of SPECIAL COURT UNDER POCSO ACT, WAYANAD DATED 13-02-2019 CRIME NO. 350/2015 OF Thirunelly Police Station , Wayanad** ## **PETITIONER/S:** **BINEESH G AGED 22 YEARS S/O.GOPALAN, MANTHANAM ADIYA COLONY, THIRUNELLY VILLAGE.** **BY ADV. M R SASITH** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 THE INSPECTOR OF POLICE MANANTHAVADY POLICE STATION, WAYANAD DISTRICT - 673 121.** **OTHER PRESENT: SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Crl.MC.No.1440 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------Crl.M.C.No.1440 Of 2019 --------------------------------- Dated this the 19[th] day of March, 2019. ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under the enabling provisions under Sec.482 of the Cr.P.C is to set aside the impugned Anx-A1 order dated 13.2.2019 rendered by Sessions Court, Wayanad, whereby the plea of the petitioner-accused filed under Sec.311 of the Cr.P.C to recall and re-summon PW-2 lady defacto complainant-victim, has been rejected. 2. Heard Sri.M.R.Sasith Panicker, learned counsel for the petitioner and Sri.Amjad Ali, learned Prosecutor appearing for the respondents. 3. The petitioner the is the sole accused in Crime No.350/2015 of Thirunelly Police Station, Wayanad District, which has been registered for offences punishable under Secs.450, 376(1) of I.P.C and Secs.376(2)(n) of I.P.C as amended by the Criminal Amendment Act, 2013, which came into force on 3.2.2013 onwards and the same is pending as S.C.No.360/2016 on the file of the Special Court for POCSO Act. 5. The brief of the prosecution allegation is that the petitioner accused criminally trespassed into house of CW-1 (a minor ::3:: ## **Crl.MC.No.1440 of 2019** girl aged 15 years) on several occasions in the year 2013 and committed rape on her without her consent and thereby obtained vitiated consent and after that the accused had impregnated the victim and thereby she delivered a girl child. The charge against the accused was framed on 5.7.2018. The prosecution had examined 12 witnesses and the victim PW-2 was examined on 28.9.2018. It is not in dispute that prosecution evidence was closed on 5.12.2018 and the case was posted for examination of the accused under Sec.313(i)(b) of the Cr.P.C. The accused was questioned under Sec.313(i)(b) on 4.2.2019. On 4.2.2019 petitioner-accused has filed the present petition under Sec.311 of the Cr.P.C praying for orders to the court below recall PW-2 (victim) for further examination. 6. The case projected by the petitioner accused in the above application filed under Sec.311 of the Cr.P.C is only because of the fact that after completion of prosecution evidence, the matter has been settled and therefore cross-examination of PW-2 is highly necessary for a just and fair decision of the case and that the court should recall PW-2 in order to facilitate the accused to submit her for further cross-examination. 7. On appreciation of the various factual aspects disclosed in the said application, the Sessions Court has come to a considered factual conclusion that the attempt of the petitioner- ::4:: ## **Crl.MC.No.1440 of 2019** accused is to subject the victim girl for further cross-examination since the matter has been allegedly settled between them. So the main issue that was decided by the learned Sessions Court was as to whether after the examination in chief, full fledged crossexamination of PW-2 (lady defacto complainant/victim) by the defence, application under Sec.311 could be allowed so as to contradict and essentially deny the evidence given by PW-2 in her deposition made already before the court in order to bring the additional factual aspects regarding the alleged settlement between the petitioner and the victim girl. The court below has found that PW-2 has been elaborately and meticulously examined by the defence and the main attempt of the accused was to bring out the factual aspects regarding the alleged settlement between the parties. It is by now well settled by a catena of rulings of the Apex Court and various High Court as in _**Hanuman Ram v. State of Rajasthan & ors**_ , reported in (2008) 15 SCC 652 = AIR 2009 SC 69, wherein para 7 thereof it has been held that the object underlying S.311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side and the determinative ::5:: ## **Crl.MC.No.1440 of 2019** factor is whether it is essential to the just decision of the case. It is now sell settled by means of judicial decision that more serious crime like the one involving allegation of rape under Sec.376 of the I.P.C. etc., cannot be the subject matter of quashment on the basis of settlement between the parties. {see _**Parbatbhai Aahir v. State of Gujarat**_ , reported in (2017) 9 SCC 641, _**Shimbhu & anr. v State of Haryana**_ , reported in (2014) 13 SCC 318, _**Sebastian @ Solly v. State of Kerala**_ , reported in 2015 KHC 38 = 2015 (1) KLT SN 98, etc}. This position has also been reiterated by the Apex Court in the decision in _**State of Madhya Pradesh v. Madan Lal**_ , reported in AIR 2015 SC 3003 = (2015) 7 SCC 651, para 16, that in a case of rape or attempt of rape on the conception of compromise it may not be right and proper to quash the impugned criminal proceedings for offence under Sec.376 of the IPC on the ground of settlement between the parties as these are crimes against the body of a woman as these offences would suffocate the breath of life and sully the reputation of the womanhood. 8. On the cardinal aspect regarding the discretionary exercise of powers under Sec.311 of the Cr.P.C for recalling the witness it has been held by the Apex Court in _**Mishri Lal & ors. v. State of M.P. & ors**_ , reported in (2005) 10 SCC 701 = 2005 KHC ::6:: ## **Crl.MC.No.1440 of 2019** 1776 that once the witness was examined in chief and cross examined fully, such witness should not have been recalled and reexamined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other Court or forum subsequently. 9. Therefore, in view of the abovesaid elementary aspects of the matter, the aspect relating to settlement between the petitioner-accused and victim girl for offence under Sec.376 of the IPC is really immaterial and irrelevant as far as the impugned criminal proceedings are concerned. PW-2 has given elaborate evidence at the time of examination in chief as well as at the time of elaborate cross-examination conducted by the defence. Therefore the Sessions Court cannot be found fault with for having come to the considered conclusion that the attempt of the petitioner-accused is actually to recall the witness so as to make her to give version which is in inconsistent with the version which has already before the court below and deny and rebut and such attempt is clearly impermissible and which will be highly improper and illegal for the trial court to accede to such request. Such exercise would not only be illegal but also perverse. In that view of the matter, the learned Sessions Court cannot be found fault with ::7:: ## **Crl.MC.No.1440 of 2019** for having taken the considered view that the plea of the petitioner is only to be rejected. The impugned order cannot be said to be vitiated as illegal or improper or perverse. Therefore, it is only to be held that the petitioner has not disclosed any valid grounds for this Court to exercise the extra ordinary powers under Sec.482 of the Cr.P.C which is essentially to ensure that justice is meted out to both sides and to ensure that prevention of grave miscarriage of justice. In that view of the matter, the Criminal Miscellaneous Case fails and accordingly the same will stand dismissed. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::8:: **Crl.MC.No.1440 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **CERTIFIED COPY OF ORDER 2019 IN SESSION CASE NO.360/2016 BEFORE THE SPECIAL COURT FOR -TRIAL OF OFFENCE UNDER POCSO ACT & CHILDREN COURT (ADDITIONAL SESSIONS COURT-I), KALPETTA, WAYANAD).**