Anil @ Inki Anil vs State of Kerala

Type Court Judgment Court Kerala Decided Oct 03, 2023

~4 min read

https://sooperkanoon.com/case/1392011

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/1392011
Court: Kerala High Court
Judge: Honourable Mr. Justice Gopinath P.
Decided On: Oct 03, 2023
Case Number: Crl.MC/7717/2023

Parties & Advocates

Appellant / Petitioner

Anil @ Inki Anil

Respondent

State of Kerala

Excerpt

.....judgment tomorrow, it will not be appropriate to consider the question as to whether the application filed under section 311 cr.p.c. to recall pw3, pw4 and pw32 should have been allowed by the court.5. that apart, i have gone through annexure a1 order. annexure a1 order records that pw3 who is a child witness was cross examined at length by thedefense counsel. the learned judge has correctly heldthat recalling of a child witness for the purpose of allegedly confronting the witness with the statement in an unproved video file will amount to harassment of the child witness and the same is against accepted principles of law. the learned judge has also noted that pw4 is also sought to be recalled for confronting him with a previous statement in an unproved video file. the learned judge has also noticed that the reason stated for recalling pw32 in the application filed under section 311 cr.p.c. is also incorrect. the learned judge has, therefore, found that none of the witnesses can be recalled for the reasons stated in the application. the video file which was sought to be used for the purpose of contradiction is a video file of certain channel interviews of pw3 and pw4. in the light of theprovisions contained in section 65b(4) of the indian evidence act, a certificate under section 65b(4) is a condition precedent for admissibility of evidence by way of electronic record. the attempt to rely on an unverified and unauthenticated video file for the purpose of confronting two prosecution witnesses who got examined as pw3 (child witness) and pw4 cannot be permitted. therefore the question of recalling pw3 and pw4 does not arise for consideration. in respect of pw32, the learned judge has found that the only reason stated in the application is that the defense could not put more questions to the said witness in respect of mo15 to mo19 notebooks. on going through the oral testimony of pw32, the court finds that the defense counsel has cross examined pw32 at length. pw32.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 3RD DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 CRL.MC NO. 7717 OF 2023 AGAINST THE ORDER DATED 07.08.2023 IN CRL.M.P.NO.2917/2023 IN SC THIRUVANANTHAPURAM / IV ADDITIONAL MACT PETITIONER/PETITIONER/ACCUSED: ANIL @ INKI ANIL AGED 47 YEARS S/O SREEDHARAN VILAYIL VEDDU, CHAVADIMUKKU DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM, PIN - 695146 BY ADVS. AUGUSTUS BINU ANJU THOMAS.M CYRIAC TOM KARTHIK J SEKHAR RESPONDENT/COUNTER PETITIONER/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 SR.PP- SRI.NOUSHAD K.A. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

This petition has been filed challenging Annexure A1 order in Crl.M.P.No.2917 of 2023 in S.C.No.2219 of 2022 on the file of the Additional Sessions Court-VII, Thiruvananthapuram, through which the application filed by the petitioner under Section 311 Cr.P.C., to recall PW3, PW4 and PW32 for further cross examination, has been rejected by the court.

2. Learned counsel for the petitioner would

submit that the reasons which compelled the court to reject the application under Section 311 are not germane to the consideration of an application under Section 311 Cr.P.C. It is submitted that the court ought to have allowed the petition under Section 311 Cr.P.C. and the finding that the petition to recall witnesses was

a dilatory tactic, resulting in waste of judicial time, is not correct.

3. The learned Public Prosecutor on instructions would submit that Annexure A1 order was dated 07.08.2023. it is submitted that arguments have been

completed and the case is posted for judgment

tomorrow (04.10.2023). It is submitted that under such circumstances, it is not appropriate for this Court to consider whether the petition filed by the petitioner under Section 311 Cr.P.C. should have been allowed by the court.

4. Having heard the learned counsel for the

petitioner and the learned Public Prosecutor, I am of the view that there is considerable merit in the contention taken by the learned Public Prosecutor that since the case is posted for judgment tomorrow, it will not be appropriate to consider the question as to whether the application filed under Section 311 Cr.P.C. to recall PW3, PW4 and PW32 should have been allowed by the court.

5. That apart, I have gone through Annexure A1 order. Annexure A1 order records that PW3 who is a child witness was cross examined at length by the

defense counsel. The learned Judge has correctly held

that recalling of a child witness for the purpose of allegedly confronting the witness with the statement in an unproved video file will amount to harassment of the child witness and the same is against accepted principles of law. The learned Judge has also noted that PW4 is also sought to be recalled for confronting him with a previous statement in an unproved video file. The learned Judge has also noticed that the reason stated for recalling PW32 in the application filed under Section 311 Cr.P.C. is also incorrect. The learned Judge has, therefore, found that none of the witnesses can be recalled for the reasons stated in the application. The video file which was sought to be used for the purpose of contradiction is a video file of certain channel interviews of PW3 and PW4. In the light of the

provisions contained in Section 65B(4) of the Indian Evidence Act, a certificate under Section 65B(4) is a condition precedent for admissibility of evidence by way of electronic record. The attempt to rely on an unverified and unauthenticated video file for the purpose of confronting two prosecution witnesses who got examined as PW3 (child witness) and PW4 cannot be permitted. Therefore the question of recalling PW3 and PW4 does not arise for consideration. In respect of PW32, the learned Judge has found that the only reason stated in the application is that the defense could not put more questions to the said witness in respect of MO15 to MO19 notebooks. On going through the oral testimony of PW32, the court finds that the defense counsel has cross examined PW32 at length. PW32 was examined on 26.05.2023. It was found that the learned defense counsel had asked several questions to PW32 in respect of notebooks marked as MO15 to MO19. Therefore the

reason stated in the application for recalling PW32 is no ground to allow the application. The findings of the learned Judge does not call for any interference. Crl.M.C is, therefore, dismissed. Sd/- GOPINATH P. JUDGE SSK/03/10 APPENDIX OF CRL.MC 7717/2023 PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF THE ORDER DATED 07.08.2023 IN CRL.MP.NO. 2917/2023 IN S.C. NO. 2219/2022 ON THE FILES OF ADDITIONAL SESSIONS COURT-VII, THIRUVANANTHAPURAM RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE

Same Court & Year Kerala · 2023 Same Parties Anil @ Inki Anil vs State of Kerala Same Judge Honourable Mr. Justice Gopinath P.