[Actress Assault Case] Kerala High Court Rejects Pulsar Suni's Plea To Recall Two Expert Witnesses, Calls It 'Frivolous'

Suni had approached the High Court against the order of the Sessions Court dismissing his application to recall two expert witnesses, a doctor who collected samples for forensic examination and the Assistant Director of the Forensic Science Laboratory.

Justice C. Jayachandran observed that the Sessions case was of the year 2018 and trial commenced on January 2020. It noted that the application filed by Suni is frivolous for delaying the disposal of the case.

“It is noticed that the instant Sessions Case is of the year 2018 and the trial commenced on 30.01.2020. The time limit fixed for disposal of this case by the Hon'ble Supreme Court was extended on several occasions. The present application appears to be a frivolous one, filed with an eye fixed on delaying the disposal of the case. That apart, a person, who had enough opportunity to do a thing, which he did not avail, cannot turn round later and complain of want of opportunity. The requirements of Section 311 Cr.P.C. are not at all satisfied. The impugned Order would demonstrate that the new evidence sought to be adduced by recalling PW 112 and PW 183 is not essential for a just decision of the case.”

The prosecution case against Suni is that in pursuance of the criminal conspiracy by actor Dileep, the former along with certain other accused had abducted and sexually assaulted the victim in a moving car in the year 2017. While Suni is the first accused in the case, Malayalam actor Dileep is a co-accused and is alleged to be the brain behind the conspiracy. There are 10 accused in the 2017 case.

Sections 120 (B), 109, 342, 366, 354, 354B, 357, 376D, 201, and 212 read with Section 34 of the Indian Penal Code and Sections 66 A and 66 E of the Information Technology Act have been invoked against the 10 accused persons. Suni has been in custody since February 23, 2017 onwards and he has been in jail for 7 years now.

Suni has approached the High Court stating that he was in the jail during the trial and therefore his lawyer could not take proper instructions before examining these two witnesses. It was argued that recalling witnesses were essential to give his defence effectively as per Section 233 of the CrPC.

Section 233 provides that an accused must be allowed to present their defense and adduce evidence if there is no acquittal under Section 232.

The Court noted that Section 233 of CrPC does not enable an accused to recall a prosecution witnesses, who are already examined.

Court stated, “Section 231, which speaks of the prosecution evidence, contemplates recalling any witness for further cross-examination, by virtue of Sub Section (2). Coupled with the same, Section 311 Cr.P.C. contemplates recalling and re- examining any person already examined at any stage of the inquiry, trial or other proceedings under the Code.. it is too far-fetched to contemplate that Section 233 would take within its sweep a power to recall a Prosecution Witness already examined. Instead, it confers the accused a right to enter on his defence and to adduce evidence in support thereof.”

Further, the Court stated that Section 233 enables the accused to recall defence witnesses and not prosecution witness. It however clarified that it must not be misunderstood that a Prosecution Witness cannot be recalled during the Section 233 stage.

Thus, the Court stated that prosecution witnesses who were already examined cannot be recalled by the accused under Section 233 of CrPC.

It said, “it is concluded that a Prosecution Witness, who was examined already, cannot be recalled by exercising the powers under Section 233 Cr.P.C. However, such an exercise can be done under Section 311 Cr.P.C. at any stage, including that of Section 233, provided all the requirements and parameters of Section 311 are otherwise satisfied.”

In the facts of the case, the Court held that the two witnesses were examined as early as in 2021 and 2022 and the accused was represented by his Counsel throughout the trial. It also found that presence of accused would not be of much help while examining expert witnesses. It also noted that application to recall witness at this stage after closure of prosecution evidence was for delaying the trial.

As such, the Court upheld the order of the Sessions Court dismissing his application to recall witnesses and dismissed the case.

Counsel for Petitioner: Advocates V.V.Pratheeksh Kurup, Dev Nandan A.,Ravi Krishnan, Anju P.

Counsel for Respondents: Senior Public Prosecutor C N Prabhakaran

Case Number: CRL.MC NO.10527 OF 2024

Case Title: Sunil N.S. @ Pulsar Suni v Station House Officer

Citation: 2024 LiveLaw (Ker) 807