Humiliation Suffered By Victim Can't Be Ignored While Considering Recall Application Of Accused: Karnataka High Court In Rape Case

The Karnataka High Court has rejected an application moved by a rape accused seeking to recall the victim for cross-examination, a year after her cross examination was closed.

A single judge bench of Justice Rajendra Badamikar sitting at Kalaburagi said, “The victim was already humiliated by kidnap, rape and illegal confinement and she was elaborately cross-examined in the Court. After one year, again the witness was being sought to be recalled without disclosing before the learned Special Judge as to what questions are required to be posed. Since this is a sensitive matter, humiliation going to be suffered by the victim cannot be ignored and merely because the petitioner wants to recall the victim or a witness, the Court is not bound to recall a witness.”

The petitioner is alleged to have committed offences punishable under Sections 363, 376(2) (n), 354-D, 344 and 376(3) of IPC as well as Sections 6 and 12 of the POCSO Act, 2012. The victim was examined on 07.10.2022 and she was fully cross-examined. Almost after 1 year i.e., on 11.08.2023, the petitioner moved an application under Section 311 of Cr.P.C. for recalling P.W.1 for further cross-examination. The same was objected by the Special Public Prosecutor and by impugned order dated 04.09.2023, the Special Judge rejected said application.

The accused argued some material questions are not put to witness, as there are certain omissions and improvements in her evidence and they are required to be posed to the witness. Hence, he contended that the Trial Court ought to have given him an opportunity to cross-examine the victim.

The prosecution opposed the plea saying the victim was fully cross-examined and no grounds are forthcoming for moving such an application and the application is moved at a belated stage and not maintainable.

On going through the records the bench noted that though the application was rejected on 04.09.2023 itself, the certified copy was applied on 11.12.2023 and was obtained on 13.12.2023. Why there is delay in applying certified copy is not at all explained by the petitioner, Court said.

Dismissing the contention that material questions regarding improvements and omissions were not put to the witness, the court said “These issues can even be urged before the concerned Special Court, as it is based on records available including the evidence and 161 Cr.P.C. statement recorded.”

Taking into account that the victim has supported the case of the prosecution even when other witnesses have turned hostile and medical evidence does not support prosecution, the court said, “In that event, nothing prevents the defence from availing the benefit of the same.”

Court said reasonable ground is required to be shown to recall the witness and certain omissions and improvements itself is not a reasonable ground. “It appears that after hostility of all material witnesses, there is an attempt to break the witness and for that purpose, the witness is being recalled which is not permissible and Court cannot be the party to such an activity. The conduct of the petitioner in moving such an application after one year and then applying the certified copy of order after two months disclose that it is only the tactics used to protract the proceedings or otherwise.”

Noting that the trial is concluded and the matter is set down for hearing the arguments, the court held “When the matter is at the fag end of the trial, again the victim cannot be humiliated considering the conduct of the petitioner. Hence, the petition is devoid of any merits and does not survive for consideration.”

Appearance: Advocate Marthandappa Malleshappa Allur for Petitioner.

HCGP Jamadar Shahabuddin for R1.

Citation No: 2024 LiveLaw (Kar) 51

Case Title: Manikeppa Helavar AND The State Through Mudhol P.S

Case No: Criminal Petition No 201853 of 2023.

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