State of Kerala v. Eldhose, Mariamma, and Jancy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940** ## **Crl.MC.No. 670 of 2019** **ORDER IN CRL.MP.NO.20/2019 IN S.C. NO.635 OF 2015 OF THE ADDITIONAL SESSIONS COURT FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN, ERNAKULAM** ## **PETITIONERS/ACCUSED NOS.1 TO 3:** |**1**|**ELDHOSE, AGED 47 YEARS,**| |---|---| ||**S/O.MATHAI,PATHICKAL HOUSE,**| ||**PANDIKADU BHAGOM,MUDAKUZHA KARA,**| ||**VENGOOR WEST VILLAGE, ERNAKULAM.**| |**2**|**MARIAMMA, AGED 67 YEARS,**| ||**W/O.MATHAI, PATHICKAL HOUSE,**| ||**PANDIKADU BHAGOM, MUDAKUZHA KARA,**| ||**VENGOOR WEST VILLAGE, ERNAKULAM.**| |**3**|**JANCY, AGED 36 YEARS,**| ||**W/O. SAKARIA, THOMBRA HOUSE, ONNAM MILE BHAGOM,**| ||**IRINGOL KARA, PERUMBAVOOR VILLAGE.**| **BY ADVS. SRI.GEO PAUL SRI.C.R.PRAMOD SRI.RADHIKA RAJASEKHARAN P. SRI.SANU MATHEW SMT.V.S.SIMI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE INSPECTOR OF POLICE, KODANADU POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **SMT. MAYA M. N.-PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 670 of 2019 2 ## **ORDER** This petition under Section 482 of the Cr.P.C. has been filed by the petitioners assailing the order dated 16.1.2019 passed by the learned Additional Sessions Judge, Ernakulam. By the said order, the learned Sessions Judge has allowed the application filed by the learned Public Prosecutor and orders were issued to recall PW2 and PW18 in exercise of powers under Section 311 of the Cr.P.C. 2. To understand the case of the petitioners, a brief reference to the sequence of events is necessary. 3. The petitioners herein are the accused in S.C.No.635/2015 on the file of the Additional Sessions Court for trial of cases relating to Atrocities and Sexual Violence against Women and Children, Ernakulam. In the aforesaid case, they are being tried for having committed offences punishable under Sections 498A, 306, 304(B) r/w Section 34 of the IPC. 4. The 1[st] accused is the husband of deceased Sheela. The accused Nos.2 and 3 are his mother and sister respectively. According to the prosecution, deceased Sheela took her own life Crl.MC.No. 670 of 2019 3 within seven years of her marriage due to the continuous torture and harassment meted out by the accused. 5. PWs 1 and 2 are the wife and husband respectively. PW2 is a distant relative of the deceased. According to the prosecution, PW1 and PW2 were privy to the acts of harassment meted out to the deceased by her husband. The examination of witnesses commenced on 19.12.2016. After the closure of prosecution evidence, the incriminating materials arising there from were put to the accused under Section 313 of the Cr.P.C. On the side of the defence, certain witnesses were examined. Thereafter, the prosecution filed an application to issue summons to certain witnesses and they were examined as additional witnesses on 5.9.2018. The accused were again questioned. Both sides were heard. Immediately thereafter, an application was filed under Section 311 of the Cr.P.C. requesting to recall and re-examine PWs 1, 2 and 18. It was stated in the application that the prosecution wants to recall PW1 and PW2 for further cross-examining them and to contradict their own witnesses by their previous statement in writing. It was also requested that after the said witnesses are examined, PW18, the investigating officer is to be recalled to mark the contradicted portion. Crl.MC.No. 670 of 2019 4 6. The learned Sessions Judge partly allowed the application holding that the prosecution has to be granted a chance to put further questions to PW2 as he was not confronted properly with his previous statement in writing. It appears that in his previous statement, he had stated that the deceased Sheela had divulged to him about the acts of abuse and ill-treatment meted out to her by the accused and he had stated all these aspects in his 161 statement. However, while he was chief examined, the concerned Prosecutor failed to bring out these facts in evidence. The learned Sessions Judge further ordered that recalling of PW18 was also necessary in the interest of justice. 7. The learned counsel appearing for the petitioners submitted that the court below was not justified in allowing the application. She pointed out that PW1 did not support the prosecution case and was, therefore, declared hostile. PW2 is the husband of PW1 and he deposed in tune with the prosecution version. The failure of the Prosecutor to seek the permission of the court to put any question which might be put in cross examination by the adverse party after declaring him unfavourable to the prosecution cannot now be permitted is the argument. It is contended that by recalling the said witness and by discrediting him, no purpose would be served. Crl.MC.No. 670 of 2019 5 The learned counsel would further contend that the power under Section 311 should be exercised judicially and with extreme care and caution. Such an endeavor has not been made, argues the learned counsel. He would further contend that the application submitted before the court below lacks material particulars and all that was stated is that the recalling of witnesses is required for confronting him. The attempt is to fill up the lacuna and cause prejudice to the accused. 8. The learned Public Prosecutor, on instructions, submitted that his counter part before the trial court noticed after the hearing was over that PW2 had substantially resiled from his earlier version and he had omitted to seek permission from the court below to put questions to his witness, which might be put in cross examination. This has prompted the Public Prosecutor to file the application. The order passed is not liable to be interfered is the submission. 9. Having heard the fervent submissions of the learned counsel, I was persuaded by the contentions and was inclined to dispose of this petition with directions. However, it was felt that the matter had to be heard in more detail and the case was posted as to be spoken to. Crl.MC.No. 670 of 2019 6 10. A conspicuous reading of Section 311 of the Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of reexamination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 of the Cr.P.C. and Section 138 of the Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 of the Cr.P.C. It is, therefore, imperative that the invocation of Section 311 of the Cr.P.C. and its application in a particular case can be ordered by Crl.MC.No. 670 of 2019 7 the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose, the essentiality of a person to be recalled and re-examined, has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. (see **Rajaram Prasad Yadav v. State of Bihar and another** [(2013) 14 SCC 461]. 11. On going through the materials made available and after perusing the evidence let in by the witness, I am of the view that the Crl.MC.No. 670 of 2019 8 learned Sessions Judge was well justified in allowing the application filed by the prosecution to recall and re-examine the witness. The trial court had concluded that the Prosecutor had faltered at the stage of cross examining PW2. He had failed to elicit admissions of facts when the witness was in the box. The contention of the learned counsel that the only purpose of cross-examination of a witness is solely to discredit him may not be correct; it ignores the hard truth that another equally important object of cross-examination is to elicit admissions of facts which would help to build the case of the crossexaminer. When a party with the leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate, but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. Thus, showing faultiness of the memory in the case of such a witness would be another object of cross-examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross-examination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit, but because from his antipathetic attitude or otherwise, the court feels Crl.MC.No. 670 of 2019 9 that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way. (See **Sat Pal v. Delhi Administration** [AIR 1976 SC 294]). 12. I am also not impressed with the submission of the learned counsel that the recalling of PW2 would only be an empty formality. It is the law that in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge normally, as Crl.MC.No. 670 of 2019 10 a matter of prudence, would discard his evidence in toto. The trial court after anxiously considering the application had come to the conclusion that the recalling and re-examining PWs 2 and 18 was essential for a just decision of the case. For the aforementioned reasons, I find no reason to take a different view. This petition is disposed of with the above observations. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP Crl.MC.No. 670 of 2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF THE CRL.M.P.NO.20/2009 FILED**| |---|---| ||**BY THE PROSECUTOR IN S.C.NO.635/2015 OF THE**| ||**ADDITIONAL SESSIONS COURT FOR THE TRIAL OF**| ||**CASES RELATING TO ATROCITIIES AND SEXUAL**| ||**VIOLENCE AGAINST THE WOMEN AND CHILDREN.**| |**ANNEXURE A2**|**TRUE COPY OF OBJECTION FILED BY THE**| ||**PETITIONERS IN CRL.M.P.NO.20/2019 IN**| ||**S.C.NO.635/2015 OF THE ADDITIONAL SESSIONS**| ||**COURT FOR THE TRIAL OF CASES RELATING TO**| ||**ATROCITIES AND SEXUAL VIOLENCE AGAINST THE**| ||**WOMEN AND CHILDREN.**| |**ANNEXURE A3**|**FREE COPY OF ORDER IN CRL.M.P.NO.20/2018 IN**| ||**S.C.635/2015 OF THE ADDITIONAL SESSIONS**| ||**COURT FOR THE TRIAL OF CASES RELATING TO**| ||**ATROCITIES AND SEXUAL VIOLENCE AGAINST THE**| ||**WOMEN AND CHILDREN.**| |**ANNEXURE A4**|**TRUE COPY OF THE DEPOSITION OF PW2.**| |**RESPONDENTS' **|**EXHIBITS:**| NIL