Allowed

Jabir v. State of Kerala

Kerala HC14 Mar 2024Crl.MC/11241/2023

Case brief

AI extract

What is this about?

Accused in a POCSO trial challenged the trial court's refusal to allow cross-examination questions put to the survivor recalled only to prove her SSLC certificate. Holding the questions non-derogatory and not amounting to character assassination, the High Court allowed the petition and directed the trial court to recall PW3 to answer those questions within two months.

What did the court decide?

Trial court directed to recall PW3 and permit the petitioner to put the previously rejected questions and record answers, completing cross-examination within two months.

Jabir Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

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THURSDAY, THE 14TH DAY OF MARCH 2024 / 24TH PHALGUNA, 1945
CRL.MC NO. 11241 OF 2023

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CRIME NO.302/2021 OF Cherthala Police Station, Alappuzha
AGAINST THE ORDER/JUDGMENT DATED 20.12.2023 IN SC NO.402 OF 2021
OF FAST TRACK SPECIAL COURT, CHERTHALA
PETITIONER/ACCUSED:

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JABIR
AGED 28 YEARS
S/O. MUHAMMED ASHARAF, 4/506, ODATHAPARAMBU, KARIPALAM,
MATTANCHERRY ERNAKULAM, PIN - 682002
BY ADVS.
K.K.DHEERENDRAKRISHNAN
D.FEROZE
N.P.ASHA

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RESPONDENT/STATE:

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1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031

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ADDL.2XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX IS IMPLEADED AS PER ORDER DATED
14/3/2024 IN CRL.M.A 1/2024.

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BY ADVS.
ASHIK K. MOHAMED ALI
VISHNU V. NAIR
MUHAMMED RIFA P.M.

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OTHER PRESENT:

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PP-SRI.PRASANTH M.P

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO.11241 OF 2023

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ORDER

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This Crl.M.C is at the instance of the accused in SC No.402/2021 of Fast Track Special Court, Cherthala, on the ground that, he was not permitted to put certain questions to PW3 the survivor, while she was recalled and examined at the instance of the prosecution.

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Heard learned counsel for the petitioner, learned counsel for 2^nd respondent-the survivor, and also learned Public Prosecutor.

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As per Annexure-VII order, PW3 victim was recalled for the purpose of producing her Secondary School Leaving Certificate, and to give oral evidence to prove that document.

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Paragaph 9 of that order reads as follows:-

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“9. From the above discussions, it has come out that the recalling of PW3 for the purpose of producing Secondary School Leaving Certificate and to give oral evidence to prove the same are necessary for the just decision of this case. As the accused will be granted opportunity to cross-examine the witness on that document, no prejudice will be caused to him. Though it is a fact that the petition is highly belated, in

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CRL.MC NO.11241 OF 2023

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the interest of justice and to prevent shutting out of evidence, I do not find any reason to disallow the application.”

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Accordingly, PW3 was recalled, and examined by prosecution to prove Ext.P32 Secondary School Leaving Certificate. Learned counsel for the petitioner cross examined PW3, putting certain questions which were not connected with the document produced by her. So learned trial Judge disallowed those questions, as PW3 was recalled only for the production of her SSLC certificate and to give oral evidence with respect to that document alone.

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Learned counsel for the petitioner would submit that, as per Section 138 of the Indian Evidence Act, once the witness is examined-in-chief by the prosecution, it is the right of the accused to cross examine that witness, and the cross examination need not be confined to the facts to which the witness testified on his examination-in-chief. So according to him, the questions put to PW3, during her cross examination, after recalling her, was liable to be permitted by the learned trial court, if at all those questions were not having any connection with the document proved through her.

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CRL.MC NO.11241 OF 2023

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Learned counsel for the survivor girl would submit that, going by Sections 36 and 37 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the Special Court shall not permit aggressive questioning or character assassination of the child, and shall ensure, dignity of the child is maintained at all times during trial. Cross examination shall not be a means of harassment or humiliation to the victim. A victim of rape has already undergone traumatic experience, and if she is made to repeat again and again in unfamiliar surroundings, she may become nervous or confused. So the attempt of the petitioner to subject the survivor girl to further cross examination by asking questions, which she was not supposed to answer, when she was recalled for a specified purpose, was rightly prevented by the trial court, and hence, there is no illegality in Annexure VII order.

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Learned counsel for the survivor would submit that, PW3 was cross examined at length in her original examination before court as PW3 which runs into 45 pages. No petition has been filed by learned counsel for the petitioner to recall PW3 stating that, he omitted to put certain relevant questions to her,

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CRL.MC NO.11241 OF 2023

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when she was cross examined at the first instance. As prosecution failed to produce document to prove her age, they wanted to produce the Secondary School Leaving Certificate of PW3, and for that purpose alone, she was recalled, and learned trail court allowed that petition, only for the purpose of producing her Secondary School Leaving Certificate, and to give oral evidence on that point, making it clear that, the accused also will get opportunity to cross examine the witness on that account.

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The copy of deposition of PW3 will show that, learned counsel for the petitioner put some questions which were not connected with the document produced and proved through PW3. Those questions are with respect to some other crimes registered at the instance of the victim girl and her place of residence etc., which according to the petitioner will not in anyway affect her dignity, and it will not amount to any character assassination also. This Court also verified those questions and is of the view that, those questions will not amount to any character assassination of the victim, and it may not adversely affect her dignity also.

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CRL.MC NO.11241 OF 2023

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Since the questions put to PW3 by learned counsel for the petitioner when she was recalled under Section 311 of Cr.P.C are not derogatory in nature, and not having the nature of character assassination, this court is inclined to allow this petition, directing the trial court to recall PW3, and permit learned counsel for the petitioner to put the very same questions which were rejected earlier and to get its answers from PW3. No other questions shall be permitted except with the leave of the court.

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Learned trial court has to recall PW3, and her further cross examination shall be completed as mentioned above, without further delay, at any rate within a period of two months from today.

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Registry to forward a copy of this order to the trial court forthwith.

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With these directions, this Crl.M.C stands allowed.

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Sd/-

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SOPHY THOMAS JUDGE

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ska

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CRL.MC NO.11241 OF 2023

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APPENDIX OF CRL.MC 11241/2023

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`PETITIONER ANNEXURES`
`Annexure-II`	`A TRUE COPY OF THE` `402/2021DATED 30.0`	`CMP NO. 419/2023 IN SC NO` `9.2023`
`Annexure-III`	`A TRUE COPY OF THE` `COUNSEL FOR THE AC`	`OBJECTION SUBMITTED BY THE` `CUSED IN CMP NO. 419/2023`
`Annexure-IV`	`A TRUE COPY OF THE` `CMP NO. 419/2023 I` `FAST TRACK SPECIAL`	`ORDER DATED 03.11.2023 IN` `N SC NO. 402/2021 PASSED BY` `COURT, CHERTHALA`
`Annexure-V`	`A TRUE COPY OF THE` `402/2021 FILED BY`	`CMP NO. 570/2023 IN SC NO.` `THE PROSECUTOR`
`Annexure-VI`	`TRUE COPY OF THE` `COUNSEL FOR THE` `570/2023 IN SC NO.`	`OBJECTION SUBMITTED BY THE` `PETITIONER IN CMP NO.` `402/2021`
`Annexure-VII`	`TRUE COPY OF THE` `CMP NO. 570/2023 I` `FAST TRACK SPECIAL`	`ORDER DATED 08.12.2023 IN` `N SC NO. 402/2021 PASSED BY` `COURT, CHERTHALA`
`RESPONDENT ANNEXURES`
`Annexure R2A`	`True copy of the` `Crl.M.C No. 11024` `Court.`	`order dated 19-12-2023 in` `of 2023 of this Honourable`

Jabir v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jabir v. State of Kerala

Case brief

What is this about?

What did the court decide?

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