Monson M.C. @ Monson Mavungal v. State of Kerala & The Investigation Officer (Deputy Superintendent of Police-II), Crime Branch, Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 31[ST] DAY OF MAY 2023 / 10TH JYAISHTA, 1945 CRL.MC NO. 3511 OF 2023** **AGAINST THE ORDER IN CMP NO.184/2023 AND 185/2023 IN SC 1318/2021 OF ADDITIONAL DISTRICT & SESSIONS COURT, FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE** **AGAINST WOMEN AND CHILDREN, ERNAKULAM.** ## **PETITIONER/ACCUSED:** MONSON M.C. @ MONSON MAVUNGAL, AGED 52 YEARS, S/O. M.L.CHAKO, MAVUNGAL HOUSE, VALLAYIL BHAGAM, CHERTHALA SOUTH VILLAGE, ALAPPUZHA DISTRICT, PIN - 688524 BY ADVS. M.G.SREEJITH P.JAYA SWAPNALEKHA K.T. VIDYAJITH M. ROJIN DEVASSY ## **RESPONDENTS/STATE & PETITIONER:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 THE INVESTIGATION OFFICER (DEPUTY SUPERINTENDENT OF POLICE-II) CRIME BRANCH, ERNAKULAM, PIN – 683101 BY ADV SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.3511 of 2023 2 K.BABU, J . -------------------------------------Crl.M.C.No.3511 of 2023 --------------------------------------Dated this the 31[st] day of May, 2023 ## O R D E R The challenge in this Criminal M.C is to the common order dated 12.04.2023 in C.M.P Nos.184/2023 and 185/2023 on the file of the Additional District and Sessions Court, for the trial of cases relating to Atrocities and Sexual Violence against Women and Children, Ernakulam. 2. The petitioner faces charges under Sections 370(4), 342, 354A-(1)(i) read with Sections 354-A(2), 376(2)(n), 376(2)(f), 313, 506(i) of the Indian Penal Code and Sections 5(l), 5(p), 5(j)(ii) read with Sections 6, 9(l), 9(p) and Sections 10, 11(iii) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012. The Court below is proceeding with the trial. PWs 1 to 22 were examined on the side of the prosecution and Exts.P1 to 28 were marked. On the side of the defence, DW1 was examined and Exts.D1 to D11 were marked. 3. The prosecution thereafter filed CMP No.184/2023, a Crl.M.C.No.3511 of 2023 3 petition under Section 91 Cr.P.C, to summon the matriculation certificate in respect of PW1, the victim and C.M.P No.185/2023, a petition under Section 311 Cr.PC, to recall PW1. The petitions were opposed by the petitioner/accused. The Trial Court allowed the applications. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the attempt of the prosecution is to fill up the lacuna in the prosecution case and that the document sought to be proved is not required for a just decision. 6. Per contra, the learned Public Prosecutor submitted that as the matriculation certificate is a document in proof of age of a child under Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the age shown in the certificate would have precedence over the birth certificate issued by a local body. Therefore, even though the birth certificate was marked in evidence, proving the matriculation certificate is highly Crl.M.C.No.3511 of 2023 4 required for a just decision. The learned Public Prosecutor further submitted that the prosecution has not attempted to fill up the lacuna as contended by the petitioner/accused. The prosecution is only attempting to set right an omission in leading evidence. 7. PW1 is the victim. The charge against the petitioner is that on 25.07.2019, he sexually assaulted the victim and on 26.07.2019 raped her. The further case of the prosecution is that PW1 was repeatedly raped on several other dates till she attained majority on 11.01.2020. The date of birth of the victim is 11.01.2002. On the side of the prosecution, the birth certificate was proved as Ext.P13 through PW16. The mother of the victim also gave evidence to the effect that the date of birth of the victim is 11.01.2002. The prosecution has no case that the date of birth entered in the matriculation certificate differs from the one recorded in the birth certificate and the oral evidence adduced by the mother of the victim. 8. The aid of Section 311 Cr.P.C. should be invoked with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used Crl.M.C.No.3511 of 2023 5 judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It is trite that due care should be taken by the Court while exercising power under the section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or to give an unfair advantage to the rival side and further, the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. The Court has very wide power to examine any witness it likes for a just decision in the case. The wide discretionary power upon the Court in this respect is to be exercised judicially and not arbitrarily. The Court shall suggest, by itself that it was in fact, essential to examine a witness or to recall him for further examination in order to arrive at a just decision on the case. The provision is to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts. The Section essentially is intended to ensure that every necessary and appropriate measure is taken by Crl.M.C.No.3511 of 2023 6 the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. (Vide: [Vide: Mohanlal Shamji Soni v. Union of India [1991 Supp (1) SCC 271] : [1991 SCC (Cri) 595], Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158] : [2004 SCC (Cri) 999], Mina Lalita Baruwa v. State of Orissa [(2013) 16 SCC 173] : [(2014) 6 SCC (Cri) 218], Rajaram Prasad Yadav v. State of Bihar [(2013) 14 SCC 461] : [(2014) 4 SCC (Cri) 256] and Natasha Singh v. CBI [(2013) 5 SCC 741] : [(2013) 4 SCC (Cri) 828] . 9. As per sub-rule (3) of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 and Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the age shown in the matriculation certificate would have precedence over the birth certificate issued by a local body. 10. In Jarnail Singh v. State of Haryana (AIR 2013 SC 3467) the Apex Court held that the procedure prescribed under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 for determination of the age of a child in conflict with law can be 7 Crl.M.C.No.3511 of 2023 applied for determining the age of the victim. The Juvenile Justice (Care and Protection of Children) Act, 2000 was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015, which came into force on 15.01.2016. Section 94(2) of the new Act deals with the procedure for proving the age of a child in conflict with law. Under Section 94(2), the process of the age determination shall be undertaken by seeking evidence by obtaining the date of birth certificate from the school, or matriculation or equivalent certificate from the concerned Examination Board, if available; and in the absence thereof; the birth certificate given by a Corporation or a Municipal Authority or a Panchayath; and only in the absence of the above testimonials the age shall be determined by an ossification test or any other latest medical age determination tests. 11. The lacuna in the case, in the context of Section 311 Cr.PC need not be confused with the error that occurred due to an oversight committed by a lawyer during the trial in eliciting relevant answers from the witnesses or the question of omission on the part of the counsel in producing a relevant document for proving a Crl.M.C.No.3511 of 2023 8 relevant document. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. The principle of fair trial demands that no party in a trial can be denied the opportunity to correct errors. The function of a Criminal Court is the administration of criminal justice and not to concentrate on omissions and errors. This view gets support from the decision of the Apex Court in Rajendra Prasad v. Narcotic Cell (AIR 1999 SC 2292). 12. In the case on hand, the petitioner has failed to establish that any prejudice will be caused to him in recalling PW1 and proving the matriculation certificate in support of the age of the victim. The Crl.M.C lacks merits and it stands dismissed. Pending Criminal Miscellaneous Applications, if any, stand dismissed. Sd/- K.BABU, JUDGE KAS Crl.M.C.No.3511 of 2023 9 ## **APPENDIX OF CRL.MC 3511/2023** |PETITIONER|ANNEXURES| |---|---| |Annexure1|CERTIFIED COPY OF ORDER DATED 12-04-| ||2023 IN CMP NOS. 184/2023 AND 185/2023| ||IN SC NO.1318/2021 IN THE FILES OF| ||ADDITIONAL DISTRICT AND SESSIONS COURT,| ||ERNAKULAM| |Annexure2|TRUE COPY OF TRAIL COURT PROCEEDING| ||DATED 03-06-2022 AVAILABLE IN THE| ||OFFICIAL WEBSITE OF E-COURT| |Annexure3|TRUE COPY OF TRAIL COURT PROCEEDING| ||DATED 07-02-2023 AVAILABLE IN THE| ||OFFICIAL WEBSITE OF E-COURT| |Annexure4|TRUE COPY OF TRAIL COURT PROCEEDING| ||DATED 01-03-2023 AVAILABLE IN THE| ||OFFICIAL WEBSITE OF E-COURT| |Annexure5|TRUE COPY OF TRAIL COURT PROCEEDING| ||DATED 30-03-2023 AVAILABLE IN THE| ||OFFICIAL WEBSITE OF E-COURT| |Annexure6|TRUE COPY OF TRAIL COURT PROCEEDING| ||DATED 04-04-2023 AVAILABLE IN THE| ||OFFICIAL WEBSITE OF E-COURT| |Annexure7|TRUE COPY OF TRAIL COURT PROCEEDING| ||DATED 12-04-2023 AVAILABLE IN THE| ||OFFICIAL WEBSITE OF E-COURT| |Annexure8|TRUE COPY OF PETITION FILED BY THE| ||PROSECUTION DATED 04-04-2023 U/S 311| ||AND 91 OF CRPC IN SC NO.1318/2021| |Annexure9|TRUE COPY OF OBJECTION AGAINST THE| ||PETITIONS FILED BY THE ACCUSED DATED| ||10-04-2023 IN SC NO.1318/2021|