Allowed

P.M.Mohammed Ashraf, v. State of Kerala

Kerala HC5 Apr 2019Crl.MC/1010/2019

Case brief

AI extract

What is this about?

The High Court set aside the Sessions Court's order rejecting the accused's request to adduce defence evidence. Recognizing that the stage for defence evidence had accrued after additional prosecution witnesses and Section 313 questioning, the High Court directed the lower court to permit the accused to examine the intended defence witness under Section 233 Cr.P.C., noting that a misquoting of thi

What did the court decide?

Set aside the rejection order of the Sessions Court and directed it to permit the petitioner to adduce defence evidence by examining the then Secretary of the Madrassa as proposed.

P.M.Mohammed Ashraf, Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941

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Crl.MC.No. 1010 of 2019

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AGAINST THE ORDER/JUDGMENT IN SC 267/2017 of ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) DATED 31-01-2019

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PETITIONER:

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P.M.MOHAMMED ASHRAF, AGED 51 YEARS

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S/O MOHAMMED, PALLIPATTIL HOUSE, POOMATTAM KAVALABHAGAM, NELLIKUZHIKARA, ERAMALLOOR VILLAGE, ALAPPUZHA

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BY ADVS. SRI.M.T.SURESHKUMAR SRI.R.RANJITH

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RESPONDENT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

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OTHER PRESENT:

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SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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==================

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Crl.M.C.No. 1010 of 2019

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==================

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Dated this the 5^th day of April, 2019

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O R D E R

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The order under challenge in this case is the one as per the impugned Ext.P4 dated 31.01.2019 where by the Trial Court concerned (Court of Additional Session's Judge f0r Trial of cases relating to Atrocities and Sexual Violence against women and children), Ernakulam has rejected the plea of the petitioner (accused) to examine a witness on behalf of the defense.

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The petitioner is a sole accused in above said Sessions Case, wherein the petitioner has been charged the offence punishable under Section 9(f)(l)(m) read with 10 of the Protection of Children from Sexual Offences Act, 2005 and Section 34 of the IPC.

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The gist of the prosecution in this case is that the

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petitioner was teacher in a Madrassa during the period from 01.07.2016 to 08.12.2016, wherein he had committed the above said sexual offence on a minor victim girl child aged 9 years who was the student of the said Madrassa.

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The core relevant facts to the extent, it is really necessary for the disposal of this case is as follows. Initially the prosecution had completed the evidence, thereafter the Court had taken up the proceedings under Section 313 of the Cr.P.C and the accused was subjected to Section 313 questioning process. Later the prosecution had filed an application under Section 311 of the Cr.P.C to reopen the prosecution evidence on the plea that a vital fact regarding the admission of the victim girl child to the Madrassa has to be proved by producing documentary evidence regarding the admission register of the said Madrassa and in that the document is to be marked and proved through the present Secretary of the Madrassa, who was proposed to examined as a additional prosecution witness. The plea of the prosecution for re-opening the evidence and to let in the additional prosecution evidence was allowed by the Court below on 02.11.2018. Thereupon, the

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petitioner had challenged the legality and correctness of the said order dated 02.11.2018 by filing an original petition (Criminal) under Article 227 of the Constitution of India before this Court which was dismissed by this Court as per judgment dated 09.11.2018. Thereafter, the Sessions Court concerned had allowed the prosecution to adduce the evidence through the present Secretary of the Madrassa, who was examined as PW14 and the admission register of the said Madrassa was marked as Ext.P10 through the said additional prosecution witness,viz, PW14.

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In cross examination of PW14, it came out that the entire text of Ext.P10 additional document is in Arabic language and it was admitted by PW14 that he is not conversant with Arabic language. Thereafter, with an assistance of the Arabic language expert was examined as Court witness. It appears that the said Arabic language expert has translated only that portion of Ext.P10 document which pertain to the name of the minor victim child who was shown as the student of the said Madrassa. That portion of Ext.P10 showing only the translated version of name of the minor victim girl has been marked as Ext.P10(a). Thereafter, the Court

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below had again subjected the petitioner accused to Section 313 questioning process in order to enable the petitioner to present his version regarding the additional prosecution evidence of PW10 more particularly that of Ext.P10 and the petitioner has admitted Ext.P10 admission register.

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It is thereafter the petitioner has filed the instant Annexure A2 CMP No. 77 of 2019 in the above Sessions case, which is styled as an application under Section 311 of Cr.P.C, taking up the plea that the evidence of the Secretary of the Madrassa who held that office at the time of the admission of that child is necessary as PW14 was admittedly only the Secretary of the Madrassa for the subsequent period. It is this application as per Annexure A2 that now been dismissed as per the impugned Annexure A4 order dated 31.1.2019. The Court below has issued the impugned Annexure-A4 rejection order mainly on the ground that the petitioner has already admitted Ext.P10 document through Section 313 questioning process. Further, more importantly the Court below has held that the relevant parameters for exercising the discretionary powers under Section 311 of the Cr.P.C for re-

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opening the evidence etc, has not been fulfilled in the instant case.

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After hearing Sri. M.T Suresh Kumar, learned counsel

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appearing for the petitioner(accused) and Smt. Priya Shanavas, the learned prosecutor appearing for the respondents(state), this Court is of the considered view that the impugned Annexure A4 rejection order is vitiated for taking into account of the irrelevant aspects and for not reckoning crucial and relevant aspects of the matter. It has to be borne in mind that initially the prosecution evidence was closed and the Court had gone to the stage of Section 313 questioning process of the accused, which was also closed. It is thereafter that the prosecution took up the new plea that they will have to present additional prosecution evidence, as the crucial document regarding the admission of the child in the Madrassa has to be marked and proved through the present Secretary of the said Madrassa. The said plea was allowed by the Court below. Therefore, the stage had again gone back to arena of the evidence of the prosecution by the way of additional prosecution evidence. The examination of the additional prosecution witness(PW14) and the marking of additional document Ext.p10 through him was also

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completed. Thereafter, the matter has again gone back to the Section 313 questioning process for giving an opportunity to the accused to present his version regarding the additional prosecution evidence and that has already completed.

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At that stage the case has reach a stage whereby there is valuable and precious opportunity for the accused to present any defence evidence. After the first round of prosecution evidence and questioning process, the accused had not sought for any opportunity for defence evidence. According to the petitioners counsel, he did not ask for any opportunity for defence evidence at that stage for reasons of strategy of the defence which need not be disclosed.

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However, the counsel of the accused pointed out that, when the additional prosecution witness was examined and additional prosecution document was also marked, then accused was advised that the valuable and precious right to avail the opportunity of the defence evidence should be sought for as it occurred to them that PW14 (the current secretary of the Madrassa) was not really fully equipped with the facts of the case, going by his

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evidenciary version. Moreover, the entire text of Ext.P10 admission register was in Arabic which was not know to any of the parties concerned as well as to the learned Advocates of the parties and only the English translated version of the name of victim child was obtained from the Arabic language teacher who was examined as a Court witness which was marked as Ext.P10(a). The counsel for the accused would point out that merely because he had not sought for the opportunity for defence evidence at the original round of completion of prosecution evidence and Section 313 questioning process, would not mean that he will have no right to adduce the defence evidence after the completion of the additional prosecution evidence and the additional round of Section 313 questioning process. This Court is of the considered view that Sri. M.T Suresh Kumar, learned counsel appearing for the petitioner is fully correct in raising that crucial aspect of the matter, which has been totally lost sight of, by the Court below concerned . But it appears to this that the counsel for the accused has quoted the wrong provision of law in Annexure A2 application by styling it as one under Section 311 Cr.P.C. Since the stage of defence evidence had again accrued

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in this case after the completion of the additional prosecution evidence and the additional round of Section 313 questioning process, the accused actually should have styled and mentioned the applicable provision in Annexure A2 application as one filed under Section 233 of the Cr.P.C., regarding defence evidence which comes under Chapter XVIII (Trial before Court of Sessions). So also it appears that there has been a mistake in Para 1 of Annexure A2 application where in mention is made about PW12. Actually it should have mentioned about PW14. As obviously what is stated in Para 1 of the Annexure A2 is that the witness concerned (it is wrongly mentioned PW12). It is pointed out by the petitioners counsel that, what is sought to be conveyed in Annexure A2 is that the person who was the then Secretary of the Madrassa at the time when the minor victim child was admitted there, should be examined as defence witness, for the purpose of ascertaining from him certain factual aspects deposed by PW14 and also about certain matters arising out of Ext.P10 additional document and also in relation to certain aspects deposed by PW3, who is the father of child who said to have admitted the child to the Madrassa at the

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relevant time. Section 311 of the Cr.P.C. does not apply in the facts of this case, as projected in the impugned proceedings. If as a matter of fact, the defence had availed defence evidence which was therefore closed and then, if the accused wanted either to recall any of the witnesses or wanted to examine additional defence witnesses, then certainly Section 311 of the Cr.P.C would have been applicable. That is not the scenario at all, in the instant case. So that the Courts rejection of the plea on the ground that the parameter of Section 311 are not fulfilled in the petitioner's plea is thus based on irrelevant aspects.

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One aspect of the matter is crystal clear and that is the Court below had proceeded on the basis as if that the accused is trying to reopen the evidence under Section 311 of the Cr.P.C by filing Annexure A2 application. Presumably this misperception would have occurred as the petitioner was also responsible for mistakenly mentioning in Annexure A2 that the application is one under Section 311 Cr.P.C, when in fact in substance of the case, the plea would have been under Section 233 of the Cr.P.C. In the given factual matrix , there cannot be any dispute that at this stage in

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question when the Annexure A2 application is filed, the accused had a precious and valuable statutory right of defence evidence which could be availed by him in accordance with law. The reasons stated by the applicant in Annexure A2 that the proposed witness in the defence is the then Secretary of the Madrassa at the time when the child was admitted and that he sought to be examined in order to ascertain the correctness of the certain factual aspects deposed by additional prosecution PW14 and also about the additional prosecution document produced as Ext.P10 and also about the version given by PW3( the father of child, who is said to have admitted the child in the madrassa). These aspects mentioned by the petitioner in Annexure A2 for adducing defence evidence cannot be brushed aside as irrelevant or untenable. What exactly should be the strategy of the defence is solely within the domain and province of the precious and valuable right of the accused to adduce defence evidences and cannot be trammeled in the manner as has been done in the impugned Annexure A4 order. Merely because the petitioner (accused) committed a mistake in misquoting the wrong provision (Section 311 of the Cr.P.C in

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Annexure A4) instead of correct provision (Section 233 Cr.P.C) cannot be determinative factor for rejecting the petitioners plea. Therefore the main ground of the rejection of the Sessions Court that the relevant parameters for exercising the discretionary powers so as to re-open the evidence and recalling the witness as per Section 311 of the Cr.P.C is not really applicable and relevant for the present purposes.

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In the substance of the case, the real issue of the controversy as to whether petitioner should be permitted to avail his right to adduce defence evidence. The only answer to that query in the facts of this case is an imphactic “Yes”. The other ground stated by the Trial Court that the petitioner has already admitted Ext.P10 document in Section 313 of the questioning process, is totally irrelevant to determine whether petitioner should be given the opportunity to avail his defence evidene. What exactly should be the stand of the defence and what manner they should adduce the defence evidence and if so in what manner they should shape the defence evidence etc, for all the look out of the defence. The Courts limited function in that arena is only to ascertain whether

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the evidence sought to be adduced by the defence is only in respect of relevant aspects and not for the irrelevant aspects of the matter issues. Once that limited issues ascertained, and it is broadly found that the endeavor the defence is to adduce relevant evidence,then it is bounden obligation of the Court to effectuate the said right of the defence. For these reasons in only to be held that impugned Annexure A4 rejection order is liable to be interdicted. In that view of the matter, the impugned A4 order will stand set aside and the Court below is directed to permit the petitioner to adduce defence evidence as sought in Annexure A2.

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With these observations and directions, the afore captioned Criminal Miscellaneous Case stands finally disposed of.

SD/-

ALEXANDER THOMAS

JUDGE

Crl.MC.No. 1010 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE COURT CHARGE DATED ANNEXURE A2 TRUE COPY OF THE PETITION IN CMP NO 77 OF 2019

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ANNEXURE A3 TRUE COPY OF THE OBJECTIONS FILED BY THE PUBLIC PROSECUTOR DATED 25.1.2019 ANNEXURE A4 TRUE COPY OF THE ORDER IN CMP NO 77 OF 2019 DATED 31.1.2019

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ANNEXURE A5 TRUE COPY OF THE DATE WISE HISTORY OF THE CASE HEARING OF SC NO 267 OF 2017 ANNEXURE A6 TRUE COPY OF THE DAILY STATUS OF SC NO 267 OF 2017

P.M.Mohammed Ashraf, v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.M.Mohammed Ashraf, v. State of Kerala

Case brief

What is this about?

What did the court decide?

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