Binu.K.V v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **SUNDAY, THE 9TH DAY OF JULY 2017/18TH ASHADHA, 1939** **Tr.P(Crl.).No. 67 of 2017 ()** **----------------------------AGAINST THE ORDER/JUDGMENT IN SC 459/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT, ERNAKULAM (FOR TRIAL OF CASES FOR OFFENCES AGAINST WOMEN AND CHILDREN)** **PETITIONER(S)/ACCUSED:** **---------------------** **BINU.K.V AGED 33 YEARS, S/O. VARKI, KOLLAMKUDI HOUSE, KOTHAMANGALAM, ERNAKULAM** **BY ADVS.SRI.K.NIRMALAN SRI.A.RAJASIMHAN** **RESPONDENT(S)/STATE:** **--------------------** **STATE OF KERALA** **REPRESENTED BY THE INSPECTOR OF POLICE NEDUMBASSERY THORUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM** **R BY PUBLIC PROSECUTOR:SRI K B UDAYABHANU** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02-07-2017, THE COURT ON 09.11.2017 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** ================= **Tr.P(Crl)No.67 of 2017** ================= Dated this the 9[th] day of November, 2017 ## **ORDER** The sole accused in S.C.No.459 of 2016 pending before the Additional District and Sessions Court (Cases relating to Atrocities and Sexual Violence Against Women and Children), Ernakulam is the petitioner herein. 2. The prosecution alleged that the petitioner herein sexually abused a minor girl aged 14 years. Crime No.1379 of 2015 was registered. After investigation, final report was laid and the Court framed charge for offences punishable under section 366A IPC and 7, 8, 11(v) and 12 of the Protection of Children from Sexual Offences Act, 2012. The trial of the case commenced on 04.03.2017 with the examination of the victim as PW1. Petitioner alleged that the victim was tutored and even in the chief examination, she was struggling to reproduce the version fed by the prosecution. It was alleged that learned Judge allowed the prosecutor to virtually prompt the witness and she only had to shake her head in approval. It is further stated that learned counsel for the petitioner objected to this back door entry of depositions, which the witness had not deposed. The learned Judge not only turned down his objections, but even refused to record the objections. Learned Judge allegedly Tr.P(C).67/17 2 stepped into the shoes of the prosecutor and when the prompting also failed to work with the witness, the Court ordered a break and asked the prosecutor to teach her properly. Thereafter, she was taken to the prosecutor's office and again tutored. It was alleged that learned counsel for the petitioner kept on objecting and requesting to record atleast his objection but, was not approved by the learned Judge. It was further alleged that, in cross examination, learned Judge kept on disallowing material questions and recorded twisted versions of depositions. Thereafter, learned Judge cut short the cross examination and closed it. It is further stated that when the certified copy of the deposition was obtained, petitioner found that things that did not happen were seen recorded in the deposition, including that the witness was crying. In the above circumstance, petitioner is stated to have filed an application dated 01.06.2017 for recalling the witness and also to advance hearing. Those applications were dismissed holding that there was no urgency. 3. Contending that the above facts disclose that there cannot be a fair and impartial trial before the learned Judge and justice will only be done if the case is transferred from the present court to any other Court, petitioner sought for transfer of the case. Tr.P(C).67/17 3 It was further stated that the petitioner is highly prejudiced and his right for a fair trial was also vitiated. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. Pursuant to the direction of this Court, learned Sessions Judge has filed a detailed statement in answer to the various allegations raised. Learned counsel for the petitioner relying on the decision reported in **Nehemia Joseph v. State of Kerala (1997 (1) KLT 42)** contended that the presiding officer not only should maintain highest degree of impartiality and fairness, it should be reflected in trial and must be to instill public confidence in judicial institutions and for protection of persons accused of offences and also for just and proper disposal of the cases. Learned counsel contended that several infirmities occurred in the course of the trial and it has cast considerable prejudice to the petitioner herein. 6. Evidently, going by the allegations alone, it appears to be very serious allegations, if true. However, this has to be closely analyzed on the basis of the materials available on record. 7. The detailed reply given by the Sessions Judge shows that he has specifically denied the various allegations in the petition. It was stated by the learned Sessions Judge that, on the Tr.P(C).67/17 4 date of examination of witness, Exts.P1 and P2 were marked in chief examination and thereafter, extensively cross examined by the learned defence counsel. According to the learned Sessions Judge, deposition was dictated by the Judge in open court to the typist and it was written by her in her own hand writing. The deposition was thereafter read over to the witness in open court itself by the judicial officer in the presence of learned counsel. Only thereafter, signature of the witness was obtained on the deposition. When the deposition was read over to the witness in open court, defence counsel did not raise any objection. It was stated by the learned Sessions Judge that under section 33(2) of the POCSO Act, learned Public Prosecutor and the defence counsel had to communicate the questions to be put to the child in open court, which shall in turn be put to the child. Hence, there is no direct chief examination and cross examination of the child witness in the Special Court. This was followed by the Court. It was further stated that under section 33(6) of the Act, Special Court shall not permit aggressive questions or character assassination of the child and ensure that, dignity of the child is maintained at all times during the trial. It was also stated that this empowered the court to disallow aggressive questions which have the propensity to assassinate the character of Tr.P(C).67/17 5 the child. Section 33(5) of the Act provides that the child shall not be called repeatedly to testify in the Court. The witness was cross examined strictly in accordance with the above statutory provisions. Learned Sessions Judge specifically stated that defence counsel had not raised any objection when the learned Public Prosecutor communicated questions to the child. The witness was given a short break while tendering evidence. According to the learned Sessions Judge, in the course of the cross examination, child wept, which was recorded in the deposition itself. Hence, the contention that certain things which did not happen during examination including that the witness was crying etc., were incorrectly recorded, is denied. It was asserted that it was recorded then and there by giving dictation to the LD typist in open court. Learned Sessions Judge further asserted that both the petitions which were filed were not sustainable in the light of the bar under section 33(5) of the POCSO Act. 8. A perusal of the deposition shows that the Court has specifically recorded that, at one point of time, the witness took time to give evidence. At that time, the child was given a short break. The Court has further recorded that the child was crying at that time. This fact is specifically denied by the petitioner. Tr.P(C).67/17 6 However, it is pertinent to note that in Ext.P1 application, there is no allegation that these facts were wrongly recorded by the Court. Definitely, if the Court had wrongly recorded that the child was weeping, definitely, that would have been reflected in Ext.P1 application. Further, the sequence of the recording of evidence do not indicate that this aspect was inserted in the deposition subsequently. Further, if the version of the learned Sessions Judge that deposition was dictated in open court and recorded by the stenographer is believed, necessarily, that would have been known to the counsel for the accused then and there. Having considered the above allegation in that angle, I am not inclined to accept the version of the petitioner that certain facts, which did not occur, were subsequently added. 9. It seems that the witness was examined on 04.03.2017. The sequence of narration of the incident and also the course of the cross examination as evidenced by the deposition of the witness indicate that, there is a continuity and flow in the recording of evidence. It is also pertinent to note that the victim was cross examined extensively and the cross examination runs into several pages. Even the break in the course of examination itself is recorded in the evidence. A close reading of the deposition does Tr.P(C).67/17 7 indicate that the recording of examination has got a natural flow and there is nothing artificial apparent on the face of the record to doubt that there was an inference in the course of cross examination. 10. The specific allegations of the petitioner herein has to be appreciated in another angle. The witness was examined on 04.03.2017. However, the certified copy of the deposition shows that, a copy application was submitted only on 22.03.2017. The copy was delivered on 19.04.2017. Annexure-A2 application was filed only on 01.06.2017. If very serious irregularities in the course of examination of the witness had in fact taken place, definitely, petitioner would have raised those allegations specifically and immediately on receipt of the certified copy. However, it is seen that though the certified copy was received on 19.04.2017 and though the petitioner herein proceeds to say that to his shock, he found several answers not recorded, several questions disallowed and facts which had not taken place were recorded, strangely, application for recalling of the witness comes only on 01.06.2017. Even in that application, specific allegations now raised are not seen except that there were certain irregularities in the examination of witness. Further, it was alleged that the court below abruptly Tr.P(C).67/17 8 stopped the cross examination. However, I cannot accept this contention since the last questions relate to the general suggestions denying the specific allegations made by the witness, which clearly are done towards the end of cross examination. Having considered these facts, I am not inclined to accept the reasons projected to seek transfer of case to another court. I feel that the ground set up by the petitioner herein is absolutely baseless and is liable to be rejected. 11. Having considered this, I find no reason to accept the contention set up by the petitioner. However, in the light of the apprehensions raised by the petitioner herein, I am confident that the court below will be more careful to ensure that justice is not only done but, seem to be done, to instill confidence in the minds of both counsel and parties regarding the judicial procedure and that, no occasion for the petitioner herein to doubt examination arises in future. Transfer petition fails and is dismissed. Sd/- **SUNIL THOMAS Judge** Sbna/ True Copy / P A to Judge