Cannot Recall Witness For Failure To Mark Omissions During Cross-Examination In POCSO Cases : Kerala High Court

The Kerala High Court has ruled that failure to mark omissions from a witness' previous statements during their cross-examination is not always a valid ground to recall them in POCSO cases.

However, before disposing of the plea, Justice M.R. Anitha clarified:

"I also make it clear that I do not want to make it as a precedent that material omissions need not be marked during the cross-examination of witnesses."

Background:

The petitioner herein was an accused charged with Section 376(2)(f) of IPC (rape) and Section 3 (penetrative sexual assault) r/w Sections 4, 5 (aggravated penetrative sexual assault) r/w. Section 6 of POCSO Act.

According to the petitioner, all prosecution witnesses except for the investigating officer were examined. However, he alleged that during the examination of the first two prosecution witnesses, he failed to give instruction to his lawyer regarding some of the questions to be put to those witnesses.

The petitioner contended that these questions are necessary to prove his innocence. It was further asserted that there are material contradictions in the deposition of the victim and the mother from the 161 and 164 CrPC statements. But the counsel omitted to call the attention of witnesses to those previous statements for contradicting the witnesses. 

Accordingly, he moved a plea under Section 311 of CrPC to recall the victim and her mother before the Special Court. 

This petition was dismissed by the trial court. Aggrieved by the same, the petitioner moved the High Court through Advocates K.M. Firoz and M. Shajna.

Contentions:

The accused contended that it was a settled position of law that material omissions amount to contradiction and that the relevant portion has to be put to the witnesses and the witnesses have to be given an opportunity to explain the inconsistency.

It was further argued that during the examination of PWs 1 and 2, several material omissions were brought out but were not marked. For the purpose of marking the omissions, they argued that it was highly necessary to recall the witnesses. 

However, Public Prosecutor Sangeetharaj N.R. vehemently objected to the Court considering the petition and also contended about the bar u/s.33(5) of the POCSO Act in repeatedly calling the victim in a POCSO case.

Key Findings:

Section 33(5) of the POCSO Act provides that special court shall ensure that the child is not called repeatedly to testify in the court. 

The Court noted since Section 31 starts with a non-obstante clause, application of the CrPC provisions would be subject to Section 33(5) of the Act, which guards the special court against frequently calling the child to testify in the court.

Accordingly, the Judge found that either way there was a bar for recalling the victim case repeatedly for testifying before the court. It further observed that the fact that the omissions were not marked during cross-examination is not at all a reason for recalling the witnesses. 

In fact, the deposition of the mother revealed that she had clarified almost all the omissions brought out during cross-examination.

The Court also noted that the contention about failure to mark omissions and thereby seek to recall the witnesses was perhaps a subsequent development at the instance of the accused:

"...the specific allegation of the accused while filing Section 311 petition was that he omitted to give instruction to the advocate regarding some questions to be put to PW1 and PW2. He has no case about the failure to mark omissions during the cross-examination of the witnesses at the time of filing Section 311 petition."

Since the omissions have already been explained by the witnesses and there is substantial compliance with the procedures under Section 145 of the Indian Evidence Act, the Court noted that there was no need to recall the victim and her mother in this instant case. 

In Raja Ram Prasad Yadav v.State of Bihar & Anr [2014 (4) SCC (CRL) 256], the Apex Court held that a court can recall a witness if it is found that the evidence sought to be let in is necessary for a just decision of the case or that it is necessary for finding out the truth or obtaining proper proof of the facts.

However, the Judge took the view that recalling the victim and her mother was not necessary for a just decision of this case.

Finding no reason to interfere with the impugned order passed by the Special Judge, the plea was dismissed. 

Click Here To Read/Download The Order