RATHEESH K. C. Vs. STATE OF KERALA

JUDGEMENT

(1.) This Criminal Miscellaneous Case has been filed under Sec. 482 of the Code of Criminal Procedure ('Cr.P.C' for short) by the accused in Crime No.655 of 2023 of Kuttiyadi Police Station, Kozhikode, with a prayer to quash Annexure A5 order dtd. 14/5/2024 in C.M.P.No.156/2024 in S.C.No.1394/2023 on the files of Fast Track Special Judge, Nadapuram, where the prosecution alleges commission of offences punishable under Ss. 376(2)(n), 450, 354 and 506 of the Indian Penal Code as well as under Ss. 51, 5n, 6(1), 3(a) and 4(2) of the Protection of Children from Sexual Offences Act ('POCSO Act' for short).

(2.) Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the entire case records in this matter.

(3.) It is argued by the learned counsel for the petitioner that the victim in this crime was examined as PW11 on 17/4/2024 and she turned hostile to the prosecution. Thereafter she was subjected to questioning by the learned Public Prosecutor but nothing extracted to support the prosecution. Later, on 3/5/2024, the learned Public Prosecutor filed Annexure-A3 petition under Sec. 311 of Cr.P.C to recall and re-examine PW11 on the ground that the victim reached the office of the learned Public Prosecutor and stated that she was coerced and threatened by her relatives not to disclose the details of the case, in accordance with statements she had given before the police during investigation, where the accused is none other than the uncle of the victim. According to the learned counsel for the petitioner, Annexure-A4 counter statement was filed by the petitioner and opposed the prayer for recall of PW11. But the learned Special Judge negatived the contentions in the counter statement and allowed the petition to recall PW11 for further examination. The learned counsel for the petitioner argued that such a course of action is impermissible and the same would be fatal to the interest of the accused. He has placed a decision of the Apex Court reported in [2005 KHC 1776 : 2005(1) SCC 701 : 2005 SCC (Cri) 1712], Mishrilal and Ors. v. State of M.P and Ors. to contend that once the witness was examined in chief and cross examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given inconsistent statements before any other Court or forum subsequently.