IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

THURSDAY, THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940

Crl.MC.No. 670 of 2019

ORDER IN CRL.MP.NO.20/2019 IN S.C. NO.635 OF 2015 OF THE
ADDITIONAL SESSIONS COURT FOR THE TRIAL OF CASES RELATING TO
ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN CHILDREN, ERNAKULAM

PETITIONERS/ACCUSED NOS.1 TO 3:

1 ELDHOSE, AGED 47 YEARS,
S/O.MATHAI,PATHICKAL HOUSE,
PANDIKADU BHAGOM,MUDAKUZHA KARA,
VENGOOR WEST VILLAGE, ERNAKULAM.

2 MARIAMMA, AGED 67 YEARS,
W/O.MATHAI, PATHICKAL HOUSE,
PANDIKADU BHAGOM, MUDAKUZHA KARA,
VENGOOR WEST VILLAGE, ERNAKULAM.

3 JANCY, AGED 36 YEARS,
W/O. SAKARIA, THOMBRA HOUSE, ONNAM MILE BHAGOM,
IRINGOL KARA, PERUMBAVOOR VILLAGE.

BY ADVS.
SRI.GEO PAUL
SRI.C.R.PRAMOD
SRI.RADHIKA RAJASEKHARAN P.
SRI.SANU MATHEW
SMT.V.S.SIMI

RESPONDENT/COMPLAINANT:

STATE OF KERALA,
REPRESENTED BY THE INSPECTOR OF POLICE,
KODANADU POLICE STATION, THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.

SMT. MAYA M. N.-PUBLIC PROSECUTOR

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.02.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 670 of 2019 2

ORDER

This petition under Section 482 of the Cr.P.C. has been filed by

the petitioners assailing the order dated 16.1.2019 passed by the

learned Additional Sessions Judge, Ernakulam. By the said order, the

learned Sessions Judge has allowed the application filed by the

learned Public Prosecutor and orders were issued to recall PW2 and

PW18 in exercise of powers under Section 311 of the Cr.P.C.

2. To understand the case of the petitioners, a brief reference

to the sequence of events is necessary.

3. The petitioners herein are the accused in S.C.No.635/2015

on the file of the Additional Sessions Court for trial of cases relating

to Atrocities and Sexual Violence against Women and Children,

Ernakulam. In the aforesaid case, they are being tried for having

committed offences punishable under Sections 498A, 306, 304(B) r/w

Section 34 of the IPC.

4. The 1st accused is the husband of deceased Sheela. The

accused Nos.2 and 3 are his mother and sister respectively.

According to the prosecution, deceased Sheela took her own life
Crl.MC.No. 670 of 2019 3

within seven years of her marriage due to the continuous torture and

harassment meted out by the accused.

5. PWs 1 and 2 are the wife and husband respectively. PW2 is

a distant relative of the deceased. According to the prosecution, PW1

and PW2 were privy to the acts of harassment meted out to the

deceased by her husband. The examination of witnesses commenced

on 19.12.2016. After the closure of prosecution evidence, the

incriminating materials arising there from were put to the accused

under Section 313 of the Cr.P.C. On the side of the defence, certain

witnesses were examined. Thereafter, the prosecution filed an

application to issue summons to certain witnesses and they were

examined as additional witnesses on 5.9.2018. The accused were

again questioned. Both sides were heard. Immediately thereafter, an

application was filed under Section 311 of the Cr.P.C. requesting to

recall and re-examine PWs 1, 2 and 18. It was stated in the

application that the prosecution wants to recall PW1 and PW2 for

further cross-examining them and to contradict their own witnesses

by their previous statement in writing. It was also requested that

after the said witnesses are examined, PW18, the investigating officer

is to be recalled to mark the contradicted portion.
Crl.MC.No. 670 of 2019 4

6. The learned Sessions Judge partly allowed the application

holding that the prosecution has to be granted a chance to put further

questions to PW2 as he was not confronted properly with his previous

statement in writing. It appears that in his previous statement, he had

stated that the deceased Sheela had divulged to him about the acts of

abuse and ill-treatment meted out to her by the accused and he had

stated all these aspects in his 161 statement. However, while he was

chief examined, the concerned Prosecutor failed to bring out these

facts in evidence. The learned Sessions Judge further ordered that

recalling of PW18 was also necessary in the interest of justice.

7. The learned counsel appearing for the petitioners

submitted that the court below was not justified in allowing the

application. She pointed out that PW1 did not support the prosecution

case and was, therefore, declared hostile. PW2 is the husband of

PW1 and he deposed in tune with the prosecution version. The failure

of the Prosecutor to seek the permission of the court to put any

question which might be put in cross examination by the adverse

party after declaring him unfavourable to the prosecution cannot now

be permitted is the argument. It is contended that by recalling the

said witness and by discrediting him, no purpose would be served.
Crl.MC.No. 670 of 2019 5

The learned counsel would further contend that the power under

Section 311 should be exercised judicially and with extreme care and

caution. Such an endeavor has not been made, argues the learned

counsel. He would further contend that the application submitted

before the court below lacks material particulars and all that was

stated is that the recalling of witnesses is required for confronting

him. The attempt is to fill up the lacuna and cause prejudice to the

accused.

8. The learned Public Prosecutor, on instructions, submitted

that his counter part before the trial court noticed after the hearing

was over that PW2 had substantially resiled from his earlier version

and he had omitted to seek permission from the court below to put

questions to his witness, which might be put in cross examination.

This has prompted the Public Prosecutor to file the application. The

order passed is not liable to be interfered is the submission.

9. Having heard the fervent submissions of the learned

counsel, I was persuaded by the contentions and was inclined to

dispose of this petition with directions. However, it was felt that the

matter had to be heard in more detail and the case was posted as to

be spoken to.

Crl.MC.No. 670 of 2019 6

10. A conspicuous reading of Section 311 of the Cr.P.C. would

show that widest of the powers have been invested with the Courts

when it comes to the question of summoning a witness or to recall or

re-examine any witness already examined. A reading of the provision

shows that the expression “any” has been used as a prefix to “court”,

“inquiry”, “trial”, “other proceeding”, “person as a witness”, “person

in attendance though not summoned as a witness”, and “person

already examined”. By using the said expression “any” as a prefix to

the various expressions mentioned above, it is ultimately stated that

all that was required to be satisfied by the Court was only in relation

to such evidence that appears to the Court to be essential for the just

decision of the case. Section 138 of the Evidence Act, prescribed the

order of examination of a witness in the Court. Order of re-

examination is also prescribed calling for such a witness so desired

for such re-examination. Therefore, a reading of Section 311 of the

Cr.P.C. and Section 138 of the Evidence Act, insofar as it comes to the

question of a criminal trial, the order of re-examination at the desire

of any person under Section 138, will have to necessarily be in

consonance with the prescription contained in Section 311 of the

Cr.P.C. It is, therefore, imperative that the invocation of Section 311 of

the Cr.P.C. and its application in a particular case can be ordered by
Crl.MC.No. 670 of 2019 7

the Court, only by bearing in mind the object and purport of the said

provision, namely, for achieving a just decision of the case. The power

vested under the said provision is made available to any Court at any

stage in any inquiry or trial or other proceeding initiated under the

Code for the purpose of summoning any person as a witness or for

examining any person in attendance, even though not summoned as

witness or to recall or re-examine any person already examined.

Insofar as recalling and re-examination of any person already

examined, the Court must necessarily consider and ensure that such

recall and re-examination of any person, appears in the view of the

Court to be essential for the just decision of the case. Therefore, the

paramount requirement is just decision and for that purpose, the

essentiality of a person to be recalled and re-examined, has to be

ascertained. To put it differently, while such a widest power is

invested with the Court, it is needless to state that exercise of such

power should be made judicially and also with extreme care and

caution. (see Rajaram Prasad Yadav v. State of Bihar and another

[(2013) 14 SCC 461].

11. On going through the materials made available and after

perusing the evidence let in by the witness, I am of the view that the
Crl.MC.No. 670 of 2019 8

learned Sessions Judge was well justified in allowing the application

filed by the prosecution to recall and re-examine the witness. The trial

court had concluded that the Prosecutor had faltered at the stage of

cross examining PW2. He had failed to elicit admissions of facts when

the witness was in the box. The contention of the learned counsel that

the only purpose of cross-examination of a witness is solely to

discredit him may not be correct; it ignores the hard truth that

another equally important object of cross-examination is to elicit

admissions of facts which would help to build the case of the cross-

examiner. When a party with the leave of the court, confronts his

witness with his previous inconsistent statement, he does so in the

hope that the witness might revert to what he had stated previously. If

the departure from the prior statement is not deliberate, but is due to

faulty memory or a like cause, there is every possibility of the witness

veering round to his former statement. Thus, showing faultiness of

the memory in the case of such a witness would be another object of

cross-examining and contradicting him by a party calling the witness.

In short, the rule prohibiting a party to put questions in the manner of

cross-examination or in a leading form to his own witness is relaxed

not because the witness has already forfeited all right to credit, but

because from his antipathetic attitude or otherwise, the court feels
Crl.MC.No. 670 of 2019 9

that for doing justice, his evidence will be more fully given, the truth

more effectively extricated and his credit more adequately tested by

questions put in a more pointed, penetrating and searching way. (See

Sat Pal v. Delhi Administration [AIR 1976 SC 294]).

12. I am also not impressed with the submission of the learned

counsel that the recalling of PW2 would only be an empty formality. It

is the law that in a criminal prosecution when a witness is cross-

examined and contradicted with the leave of the court, by the party

calling him, his evidence cannot, as a matter of law, be treated as

washed off the record altogether. It is for the Judge of fact to consider

in each case whether as a result of such cross examination and

contradiction, the witness stands thoroughly discredited or can still

be believed in regard to a part of his testimony. If the Judge finds that

in the process, the credit of the witness has not been completely

shaken, he may, after reading and considering the evidence of the

witness, as a whole, with due caution and care, accept, in the light of

the other evidence on the record that part of his testimony which he

finds to be credit worthy and act upon it. If in a given case, the whole

of the testimony of the witness is impugned, and in the process, the

witness stands squarely and totally discredited, the Judge normally, as
Crl.MC.No. 670 of 2019 10

a matter of prudence, would discard his evidence in toto. The trial

court after anxiously considering the application had come to the

conclusion that the recalling and re-examining PWs 2 and 18 was

essential for a just decision of the case. For the aforementioned

reasons, I find no reason to take a different view.

This petition is disposed of with the above observations.

Sd/-

RAJA VIJAYARAGHAVAN V.,
JUDGE

IAP
Crl.MC.No. 670 of 2019 11

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE A1 TRUE COPY OF THE CRL.M.P.NO.20/2009 FILED
BY THE PROSECUTOR IN S.C.NO.635/2015 OF THE
ADDITIONAL SESSIONS COURT FOR THE TRIAL OF
CASES RELATING TO ATROCITIIES AND SEXUAL
VIOLENCE AGAINST THE WOMEN AND CHILDREN.

ANNEXURE A2 TRUE COPY OF OBJECTION FILED BY THE
PETITIONERS IN CRL.M.P.NO.20/2019 IN
S.C.NO.635/2015 OF THE ADDITIONAL SESSIONS
COURT FOR THE TRIAL OF CASES RELATING TO
ATROCITIES AND SEXUAL VIOLENCE AGAINST THE
WOMEN AND CHILDREN.

ANNEXURE A3 FREE COPY OF ORDER IN CRL.M.P.NO.20/2018 IN
S.C.635/2015 OF THE ADDITIONAL SESSIONS
COURT FOR THE TRIAL OF CASES RELATING TO
ATROCITIES AND SEXUAL VIOLENCE AGAINST THE
WOMEN AND CHILDREN.

ANNEXURE A4 TRUE COPY OF THE DEPOSITION OF PW2.

RESPONDENTS’ EXHIBITS:

NIL