Kerala High Court
Blesson P.B vs The State Of Kerala on 10 March, 2025
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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2025:KER:20423
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 10TH DAY OF MARCH 2025/19TH PHALGUNA, 1946
CRL.MC NO.2006 OF 2025
CRIME NO.53/2024 OF PERUNAD POLICE STATION, PATHANAMTHITTA
AGAINST THE ORDER DATED 24.02.2025 IN CRL.M.P NO.42/2025 IN
SC NO.366 OF 2024 OF FAST TRACK SPECIAL COURT, ADOOR
PETITIONER/PETITIONER/ACCUSED NO.12:
BLESSON P.B, AGED 23 YEARS, S/O CHERIYAN P.J,
PANAMTHOTTATHIL VEEDU, URUMBINI, KOCHUKOICKAL P.O,
SEETHATHODU VILLAGE, KONNI TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689667.
BY ADVS.
MANU RAMACHANDRAN
M.KIRANLAL
T.S.SARATH
R.RAJESH (VARKALA)
SAMEER M NAIR
SAILAKSHMI MENON
AASHI K. SHAJAN
MINZA FATHIMA SALIM M.
BINITHA MARIA THOMAS
KEZIL THOTTUKADAVIL CHERIAN
RESPONDENTS/RESPONDENTS/STATE & IO:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
2 THE STATION HOUSE OFFICER,
PERINADU POLICE STATION,
PATHANAMTHITTA DISTRICT, PIN - 689711.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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BY ADVS.
SRI. E.C.BINEESH, PUBLIC PROSECUTOR
SRI. K.K.DHEERENDRAKRISHNAN, AMICUS CURIAE
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 07.03.2025, ALONG WITH Crl.MC. Nos.2216/2025, 2232/2025
AND 2233/2025, THE COURT ON 10.03.2025 PASSED THE FOLLOWING:
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 10TH DAY OF MARCH 2025/19TH PHALGUNA, 1946
CRL.MC NO.2216 OF 2025
CRIME NO.53/2024 OF PERUNAD POLICE STATION, PATHANAMTHITTA
AGAINST THE ORDER DATED 03.03.2025 IN CRMP NO.47/2025 IN SC
NO.463 OF 2024 OF FAST TRACK SPECIAL COURT, ADOOR
PETITIONER/PETITIONER/ACCUSED NO.15:
VISHNULAL, AGED 25 YEARS, S/O.UDAYALAL,
PAROOR VEEDU, MUKKAM, ADICHIPUZHA P.O,
PERUNADU VILLAGE, RANNI TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689711.
BY ADVS.
MANU RAMACHANDRAN
M.KIRANLAL
R.RAJESH (VARKALA)
T.S.SARATH
SAMEER M NAIR
SAILAKSHMI MENON
AASHI K. SHAJAN
MINZA FATHIMA SALIM M.
BINITHA MARIA THOMAS
KEZIL THOTTUKADAVIL CHERIAN
RESPONDENTS/RESPONDENT/STATE & IO:
1 THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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2 THE STATION HOUSE OFFICER,
PERINADU POLICE STATION,
PATHANAMTHITTA DISTRICT, PIN - 689711.
BY ADVS.
SRI. SANAL P.RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.03.2025, ALONG WITH Crl.MC.2006/2025, 2232/2025 AND
2233/2025, THE COURT ON 10.03.2025 PASSED THE FOLLOWING:
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 10TH DAY OF MARCH 2025/19TH PHALGUNA, 1946
CRL.MC NO.2232 OF 2025
CRIME NO.53/2024 OF PERUNAD POLICE STATION, PATHANAMTHITTA
AGAINST ORDER DATED 30.01.2025 IN COPY APPLICATION
NO.34/2025 SC NO.331 OF 2024 OF FAST TRACK SPECIAL COURT,
ADOOR
PETITIONER/PETITIONER/ACCUSED NO.15:
VISHNULAL, AGED 25 YEARS, S/O.UDAYALAL,
PAROOR VEEDU, MUKKAM, ADICHIPUZHA P.O,
PERUNADU VILLAGE, RANNI TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689711.
BY ADVS.
MANU RAMACHANDRAN
M.KIRANLAL
T.S.SARATH
R.RAJESH (VARKALA)
SAMEER M NAIR
SAILAKSHMI MENON
AASHI K. SHAJAN
MINZA FATHIMA SALIM M.
BINITHA MARIA THOMAS
KEZIL THOTTUKADAVIL CHERIAN
RESPONDENTSS/RESPONDENTS/STATE & IO:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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2 THE STATION HOUSE OFFICER,
PERINADU POLICE STATION,
PATHANAMTHITTA DISTRICT, PIN - 689711.
BY ADV. SRI.SANAL P.RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 07.03.2025, ALONG WITH Crl.MC. Nos.2006/2025, 2216/2025
AND 2233/2025, THE COURT ON 10.03.2025 PASSED THE FOLLOWING:
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 10TH DAY OF MARCH 2025/19TH PHALGUNA, 1946
CRL.MC NO.2233 OF 2025
CRIME NO.53/2024 OF PERUNAD POLICE STATION, PATHANAMTHITTA
AGAINST ORDER DATED 30.01.2025 IN COPY APPLICATION
NO.35/2025 IN SC NO.162 OF 2024 OF FAST TRACK SPECIAL COURT,
ADOOR
PETITIONER/PETITIONER/ACCUSED NO.12:
BLESSON P.B, AGED 23 YEARS, S/O.CHERIYAN P.J,
PANAMTHOTTATHIL VEEDU, URUMBINI, KOCHUKOICKAL P.O,
SEETHATHODU VILLAGE, KONNI TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689667.
BY ADVS.
MANU RAMACHANDRAN
M.KIRANLAL
R.RAJESH (VARKALA)
T.S.SARATH
SAMEER M NAIR
SAILAKSHMI MENON
AASHI K. SHAJAN
MINZA FATHIMA SALIM M.
BINITHA MARIA THOMAS
KEZIL THOTTUKADAVIL CHERIAN
RESPONDENTS/RESPONDENTS/STATE & IO:
1 THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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2 THE STATION HOUSE OFFICER,
PERINADU POLICE STATION,
PATHANAMTHITTA DISTRICT, PIN - 689711.
BY ADV.
SRI.C.N.PRABHAKARAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.03.2025, ALONG WITH Crl.MC. Nos.2006/2025, 2216/2025 AND
2232/2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
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'C.R'
COMMON ORDER
Dated this the 10th day of March, 2025
Whether a witness/victim can be re-called under Section 348
of the Bharatiya Nagarik Suraksha Sanhita, 2023(‘B.N.S.S’,
for short), read with Section 149 of the Bharatiya Sakshya
Adhiniyam, 2023 (‘B.S.A’, for short), to confront her with a
‘subsequent’ statement, so as to test her veracity, is the
question which surfaces for consideration in the first two
Crl.M.Cs. The other two Crl.M.Cs challenge the Orders
dismissing the petitioners’ application (Annexure-A5)
seeking certified copies of the deposition of PW1/victim, as
also, her statements under Section 161 Cr.P.C in two other
Sessions Cases, which, according to the petitioners, are
connected with the Sessions Case in question.
2. The factual matrix:
Petitioners in Crl.M.C No.2006/2025 and 2216/2025 are
the respective accused person in S.C Nos.366/2024 and
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463/2024, both of the Fast Track Special Court, Adoor. In
S.C No.366/2024 (Crl.M.C No.2006/2025), the offences alleged
are under Sections 450, 376(1), 376(2)(n), 354 and 354 A of
the Penal Code; and Sections 4(1) read with Section 3(a),
Section 6 read with Section 5(1), Section 8 read with
Section 7, Section 10 read with Section 9(1), Section 12
read with Section 11(iii), 11(v) and 11(vi) and Section 15
of the Protection of Children from Sexual Offences Act, 2012
(‘POCSO Act‘, for short) and further under Section 67 B(b)
and 67 B(e) of the Information Technology Act. Similarly,
the offences in S.C No.463/2024 (Crl.M.C No.2216 of 2025)
are under Sections 451 and 354 A of the Penal Code; and
Section 8 read with Section 7 and Section 12 read with
Section 11(iv) of the POCSO Act. In S.C No.366/2024, the
defacto complainant/victim was examined as PW1 on
07.01.2025; whereas she was examined in S.C No.463/2024, as
PW1 on 03.01.2025. In both cases, the witness was examined,
at length, in cross as well and discharged. Thereafter, the
same defacto complainant/victim was examined as a witness in
S.C No.331/2024 and S.C No.162/2024 on 10.01.2025 and
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18.01.2025 respectively, in which cases the accused persons
were different. In those cases (S.C Nos.331/2024 and
162/2024), the defacto complainant/PW1 turned hostile to the
prosecution and deposed that she had no acquaintance with
the accused persons therein, with the result, the respective
accused persons were acquitted by separate judgments of the
same Fast Track Special Court, Adoor. The petitioners herein
(accused persons in S.C Nos.366/2024 and 463/2024) filed
applications seeking issuance of certified copy of the
deposition of the victim/PW1, as also, the statement under
Section 161, Cr.P.C of the victim, in S.C Nos.331/2024 and
162/2024. The applications were rejected on the premise that
the petitioner is a stranger and that issuance of copies
would offend the privacy of the victim guaranteed under
Article 21 of the Constitution. Those Orders are under
challenge in the present Crl.M.C Nos.2232/2025 and
2233/2025. The petitioners herein also filed Criminal
Miscellaneous Petitions in the subject Sessions Case
Nos.366/2024 and 463/2024 seeking to recall PW1 to impeach
her credibility and to bring materials before the trial
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court, pertaining to the reliability of PW1, as a witness.
The respective applications filed in the two Sessions Cases
were dismissed, vide Orders produced at Annexure-A8 in both
the Crl.M.Cs, relying upon the judgments of the Hon’ble
Supreme Court in Mishrilal and Others v. State of M.P and
Others [2005 (10) SCC 701] and Hanuman Ram v. State of
Rajasthan and Others [2008 (15) SCC 652] and also harping on
Section 33(5) of the POCSO Act. Annexure-A8 Orders in both
the Crl.M.Cs are under challenge.
3. Heard Sri.Manu Ramachandran, learned counsel for the
petitioners; Sri.C.N.Prabhakaran, learned Senior Public
Prosecutor, Sri.Sanal P.Raj, learned Public Prosecutor and
Sri.E.C.Bineesh, learned Public Prosecutor. Having regard to
the significance of the issue as to whether the accused has
got a right to impeach the credibility of a witness by
relying on a ‘subsequent’ statement, in contra-distinction
with a previous statement, this Court appointed
Sri.K.K.Dheerendrakrishnan as Amicus Curiae. Heard the
Amicus as well.
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4. Learned counsel for the petitioners submitted that the
right to cross-examine a witness envisaged under Section 138
of the Indian Evidence Act is further enlarged in its scope
by virtue of Section 146 therein (presently Section 149 of
the BSA). Learned counsel emphatically submitted on the
significance of cross-examination, pin-pointing that it is
the sole tool in the hands of the defence to prove the
falsity of the prosecution version, as also, to prove the
innocence of the accused. On facts, learned counsel would
point out that the Sessions Cases afore-referred are not to
be treated as separate, distinct and independent from each
other; instead, they are inter-connected, since the same
sprouts from a common F.I.R. The allegation is that, as many
as twenty persons have committed penetrative sexual assault
on a minor girl, which continued so as to constitute the
offence of rape, after she attained majority. The cases were
split up only for the purpose and convenience of trial and
separate charge sheets were filed accordingly. However,
learned counsel would point out that the victim is common
and the place of occurrence and the mode of perpetration of
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the crime etc. are all, more or less, similar and that her
statement under Section 164 Cr.P.C. is also common.
Therefore, the matter should not be adjudged on the premise
that the evidence adduced in a different case is sought to
be introduced in the subject cases, but the underlying
interconnection has to be borne in mind while approaching
the issue. Learned counsel would point out that there is
hardly three days’ difference between the date of
examination of the defacto complainant/victim/PW1 in the
subject S.C No.366/2024 (Crl.M.C No.2006/2025) and the date
of examination in S.C No.331/2024. There, the accused is A8,
going by the rank mentioned in the F.I.R. From that date,
the victim/defacto complainant was examined in S.C.
No.162/2024 within eight days, wherein the accused is A13,
going by the rank shown in the F.I.R. The evidence tendered
in S.C Nos.331/2024 and 162/2024 will certainly qualify as
statements made by the witness in, more or less, connected
matters and therefore, the petitioners in both the instant
Crl.M.Cs (S.C. Nos.366/2024 and 463/2024) have a right to
confront the witness/defacto complainant with such
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statement, so as to impeach her veracity. Learned counsel
would point out that the same witness/victim had gone to the
extent of saying that she has no acquaintance with the
accused persons in those crimes, whereas her statements
under Sections 161 and 164 of the Cr.P.C would clearly tend
to incriminate the said accused. If this aspect is legally
brought in evidence by recalling the witness, the same, for
sure, will impeach the veracity of the witness. Such an
opportunity cannot be, and should not be, denied only for
the reason that such statements/depositions are ‘subsequent’
to the date on which evidence were adduced in the subject
Sessions Cases namely S.C Nos.366/2024 and 463/2024. Learned
counsel would submit that while Section 145 of the Evidence
Act specifically refers to previous statements alone, there
is no such bar insofar as Section 146 is concerned, wherein
a party is at liberty to bring in any material/statement,
previous or subsequent, so as to impeach the credibility of
the witnesses. Learned counsel relied upon the judgment of
the Hon’ble Supreme Court in Arvind Singh v. State of
Maharashtra [2021 (11) SCC 1] to contend that the production
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of the judgments in the other Sessions Cases, wherein the
witnesses have turned hostile, by itself, will not serve the
purpose, unless the witness is given an opportunity to
explain her conduct. Learned counsel relied upon the
observations of the Supreme Court in paragraph no.65 in this
regard. On the point that the scope of cross-examination
under Section 138 is substantially enlarged by the enabling
provision under Section 146, learned counsel relied upon
Rajinder Pershad (Dead) by Lrs. v. Darshana Devi (Smt) [2001
(7) SCC 69]. The findings in paragraph no.4 was pressed into
service. This judgment also reinforce the proposition that,
if the correctness of a statement is to be disputed by a
party, then, opportunity should be given to explain such
statement. On the significance of cross-examination and the
scheme of Section 145 to 155 of the Evidence Act, learned
counsel placed heavy reliance upon the judgment of a learned
Single Judge of the Gujarat High Court (J.B.Pardiwala, J.,
as his Lordship then was) in Prashant Maheshbhai Pandya v.
State of Gujarat [2016 CriLJ 303]. Shailendra Kumar v. State
of Bihar And Others [2002 (1) SCC 655] was relied upon
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to highlight the powers under Section 311 Cr.P.C as one of
very wide amplitude and the negligence or laches, if any,
(though learned counsel would submit that there was no
negligence or laches in the instant facts) should not be
fatal and justice should be served by examining such
witnesses at any stage. On the point that the bar under
Section 33(5) of the POCSO Act is not absolute, learned
counsel relied upon two judgments of learned Single Judges
of this Court in Vineeth v. State of Kerala [2022 KHC 8065]
and Jerin Joy v. State of Kerala [2024 (4) KHC 188]. The
learned counsel would conclude his argument by submitting
that an opportunity has to be given to the
petitioners/accused persons to let in the evidence, which
would surely speak of the credibility of the main
prosecution witness PW1/victim, leave alone the purpose for
which such evidence can be used, which question can be
relegated for consideration later.
5. Per contra, this application was seriously opposed by
the learned Public Prosecutor. It was submitted that the
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Evidence Act does not contemplate any provision, so as to
make use of the ‘subsequent statement’ of a witness, either
for the purpose of confronting/contradicting the witness, or
for the purpose of impeaching his or her
veracity/credibility. Learned Public Prosecutor would submit
that the impugned Annexure-A8 Orders in Crl.M.C.
Nos.2006/2025 and 2216/2025 are self speaking, which
warrants no interference.
6. Sri.K.K.Dheerendrakrishnan, learned Amicus, would
submit at the threshold that the issue is not any more
res integra and that the same stands covered by a judgment
of the Hon’ble Supreme Court in the year 2005, which is
reiterated by the Hon’ble Supreme Court in the year 2008.
Learned counsel invited the attention of this Court to
Mishrilal (supra). The facts were more or less similar, as
recorded in paragraph 5 of the judgment, to which my
attention was invited. In that case, PW2 was examined in
chief and cross finally on 31.07.1991. In respect of the
same incident, some of the accused persons were minors,
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whose cases were tried by the Juvenile Court. PW2 was also
examined as a witness before the Juvenile Court, where he
gave evidence to the effect that he is not aware of the
persons, who attacked him. Based on this evidence, PW2 was
recalled in the main matter and confronted with the evidence
he gave before the Juvenile Court. Consequently, the accused
persons were acquitted of the charge under Section 307 of
the Penal Code. Frowning upon the procedure adopted by the
learned Sessions Judge, the Hon’ble Supreme Court held that
witness should not have been recalled and re-examined to
deny the evidence that he had already given and that a
witness could be confronted only with a previous statement
made by him. Mishrilal (supra) was quoted with approval by a
subsequent bench of the Hon’ble Supreme Court in Hanuman Ram
(supra). In that case, the facts are again, similar.
Respondents 2 and 3 therein were facing trial for offences,
inter alia, under Section 302 of the Penal Code. Two
witnesses PW5 and PW3 were examined in chief and cross on
07.06.2006. There also, one among the accused was a minor
and was accordingly tried before the Juvenile Court. PW3 was
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examined as a witness before the Juvenile Court on
09.01.2007, wherein, he did not support the prosecution
version. PW5 was examined before the Juvenile Court sometime
in November, 2006. In the main matter, an application under
Section 311 Cr.P.C was filed to recall PW3 and PW5, which
was dismissed by the trial court, but allowed by the High
Court. The observations and findings in Mishrilal (supra) in
paragraph nos.5 and 6 were quoted with approval by the
Hon’ble Supreme Court and held that the High Court ought not
have allowed the application to recall the witness under
Section 311 of the Code and the same was accordingly set
aside. Based on these two judgments, learned Amicus would
submit that Annexure-A8 Orders in Crl.M.C. Nos.2006/2025 and
2216/2025 are perfectly in order, wherein the learned
Sessions Judge has rightly placed reliance upon Mishrilal
(supra) and Hanuman Ram (supra). Learned Amicus would also
canvass the position that a statement made by the witness,
subsequent to his examination in chief and cross in the main
matter, cannot be put to use, going by the scheme of the
Evidence Act. Learned counsel also pointed out that, insofar
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as Section 145 of the Evidence Act is concerned, the
requirement is not only with respect to that of a previous
statement, but also that the fact in issue in the previous
statement, as also, in the case being tried should be the
same, which requirement is not met in the facts at hand. It
was submitted that though the F.I.R is common, separate and
distinct offences have been committed by different persons
and the trial of each case has to be dealt with separately.
According to the learned Amicus, the fact that the witness
had deposed that she had no acquaintance with the accused in
one particular case will not, and cannot, make her version
suspect in another case, where she had correctly identified
the accused and narrated the incident.
7. Having heard the learned counsel for the respective
parties and the learned Amicus, this Court finds little
merit in the instant Crl.M.Cs. I am in complete agreement
with the submissions made by the learned Amicus, insofar as
the issue at hand is concerned. Chapter X of the Evidence
Act deals with the examination of witnesses and Section 137
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speaks of examination-in-chief, cross-examination and
re-examination. Section 145 specifically deals with
cross-examination as to previous statements in writing,
which is extracted here below:
“145.Cross-examination as to previous statements in
writing.- A witness may be cross-examined as to
previous statements made by him in writing or
reduced into writing, and relevant to matters in
question, without such writing being shown to him,
or being proved; but if it is intended to
contradict him by the writing, his attention must,
before the writing can be proved, be called to
those parts of it which are to be used for the
purpose of contradicting him.”
8. Section 146, on which much emphasis has been laid by
the learned counsel for the petitioners, provides thus:
“146. Questions lawful in cross-examination.- When
a witness is cross-examined, he may, in addition to
the questions hereinbefore referred to, be asked
any questions which tend –
(1)to test his veracity,
(2)to discover who he is and what is his
position in life, or
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(3)to shake his credit, by injuring his
character, although the answer to such questions
might tend directly or indirectly to criminate him
or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture:
[Provided that in a prosecution for an offence
under section 376, [section 376-A, section 367-AB,
section 376-B, section 376-C, section 376-D,
section 376-DA, section 376-DB] or section 376-E of
the Indian Penal Code (45 of 1860) or for attempt
to commit any such offence, where the question of
consent is an issue, it shall not be permissible to
adduce evidence or to put questions in the
crossexamination of the victim as to the general
immoral character, or previous sexual experience,
of such victim with any person for proving such
consent or the quality of consent.]”
9. Sections 147 to 149 deals with the powers of the Court
to regulate the questions put in cross-examination. Section
155 specifically deals with impeaching the credit of a
witness. The same is also extracted here below:
“155. Impeaching credit of witness.- The credit of
a witness may be impeached in the following ways by
the adverse party, or, with the consent of the
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Court, by the party who calls him:-
(1)by the evidence of persons who testify that
they, from their knowledge of the witness, believe
him to be unworthy of credit;
(2)by proof that the witness has been bribed, or
has [accepted] the offer of a bribe, or has
received any other corrupt inducement to give his
evidence;
(3)by proof of former statements inconsistent with
any part of his evidence which is liable to be
contradicted;
[***]
Explanation. – A witness declaring another witness
to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief,
but he may be asked his reasons in cross-
examination, and the answers which he gives cannot
be contradicted, though, if they are false, he may
afterwards be charged with giving false evidence.”
10. In the scheme of the Evidence Act, a perusal of Section
145, as also, Section 155(3) would establish, beyond the
pale of any doubt, that the statements, which can be used
for the purpose of contradiction under Section 145, as also,
for impeaching the credit of the witness under Section
155(3), both, are former/previous statements. The same is
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the situation in Section 157, which permits use of former
statements to corroborate a later testimony as to the same
fact. There is no whisper, whatsoever, about the use of a
‘subsequent statement’, in the sense that a statement given
after tendering substantive evidence before the Court. Now,
the question is whether a subsequent statement can be
pressed into service within the scope of Section 146 of the
Evidence Act, when a witness is cross-examined to test his
veracity. Section 146, of course, contain a reference that
the questions, which can be put under Section 146, are in
addition to the questions referred to in the previous
Sections. Under Section 146, three purposes are envisaged.
The first is questions, which tend to test the veracity of
the witness. The second is to discover, who the witness is
and what is his position in life; and the third, to shake
his credit by injuring his character, even though the
answers to the questions put might tend to criminate him.
11. Primarily, this Court notice that it is impossible to
put a subsequent statement to a witness, unless he is
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 26 –
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recalled by resorting to Section 311 Cr.P.C. Any and every
statement, which is legally permissible and thitherto
available as on the date of cross-examination, can be put to
the witness in accordance with the enabling provisions of
the Evidence Act. However, the Evidence Act does not provide
for the use of any subsequent statement made after tendering
evidence in the case, obviously for the reason that the same
is not contemplated by the statute makers. Even when the use
of former statements is restricted and circumscribed in the
manner provided in the Evidence Act, it cannot be thought of
or contemplated that subsequent statements can be permitted
to be put to use by a party, dehors the conspicuous absence
of an enabling provision in the Evidence Act. When the use
of previous statements itself is regulated by the provision
contained in Section 145, it does not stand to reason to
bring within the sweep of Section 146, the use of subsequent
statement made by the witness. In the instant case, it is
relevant to note that the purpose of recall is not to put
certain questions – so as to test the veracity of
the witness – which were omitted to be put during
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 27 –
2025:KER:20423
cross-examination. Instead, the purpose specifically is to
put the subsequent statement of the witness, so as to
impeach her veracity and to shake her credit. Insofar as
impeaching the credit of the witness, Section 155(3) again
specify, as one among the mode, the use of proof of former
statements. Petitioners’ contention that once the recall of
witness sought for is allowed, then the statements/
depositions sought to be put will not remain ‘subsequent
statements’ is only an answer for the sake of it, unworthy
of any merit or substance. That apart, the power under
Section 311 is essentially a power of the court to recall or
re-examine a witness, if his/her evidence appears to be
essential for a just decision of the case, which parameter
is also not satisfied in the instant facts. It is worthwhile
to notice that the petitioners herein, in substance, seek to
invoke the power of the Public Prosecutor in S.C
Nos.331/2024 and 162/2024 in terms of Section 145 of the
Evidence Act, to contradict the witness/victim on the basis
of her former statement. Such a right cannot be conceded to
the petitioners, who are accused persons in different crimes
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 28 –
2025:KER:20423
altogether, which is the subject matter of two different
Sessions Cases. Therefore, this court is of the opinion that
the instant relief sought for by the petitioners in the
respective Crl.M.Cs to recall PW1/victim/defacto
complainant, so as to enable further cross-examination by
impeaching her credibility on the strength of subsequent
statements is not well founded in law.
12. As rightly pointed out by the learned Amicus, the issue
is not res integra. The legal position has already been
examined by the Hon’ble Supreme Court in Mishrilal (supra)
and Hanuman Ram (supra). In Mishrilal (supra), the following
are the findings of the Hon’ble Supreme Court:
“6. In our opinion, the procedure adopted by the
Sessions Judge was not strictly in accordance
with law. Once the witness was examined-in-chief
and cross-examined fully, such witness should
not have been recalled and re-examined to deny
the evidence he had already given before the
court, even though that witness had given an
inconsistent statement before any other court or
forum subsequently. A witness could be
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 29 –
2025:KER:20423
confronted only with a previous statement made
by him. At the time of examination of PW 2 Mokam
Singh on 6-2-1991, there was no such previous
statement and the defence counsel did not
confront him with any statement alleged to have
been made previously. This witness must have
given some other version before the Juvenile
Court for extraneous reasons and he should not
have been given a further opportunity at a later
stage to completely efface the evidence already
given by him under oath. ….”
(underlined for emphasis)
The same has been quoted with approval in Hanuman Ram
(supra).
13. This Court also takes stock of a Bench decision of the
Allahabad High Court in Tahir v. State of U.P [2000 CRI LJ
1342]. There, the precise issue was with respect to the use
of a subsequent statement and what was considered by the
Division Bench was a reference made by a learned Single
Judge, on the basis of an earlier decision which held that a
witness can be recalled for further cross-examination in the
light of his subsequent affidavit. The factual premise was
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 30 –
2025:KER:20423
that evidence have been adduced by three prosecution
witnesses PW1, PW2 and PW5 supporting the prosecution.
Subsequently, an application was filed before the trial
court at the instance of the accused persons, pointing out
that three eye witnesses have filed affidavits denying the
prosecution version and seeking to recall the witnesses for
further cross-examination, in the light of the subsequent
affidavits. Earlier judgments in Sukhhan v. State [1988 All
L.J 175] and Amar Pal v. State of U.P [1999 (38) A.C.C 515]
were disagreed to by a learned Single Judge, which
occasioned the reference. The reference was answered by the
Division Bench as follows:
“3. The Section provides that a witness may be
cross-examined as to the previous statements made
by him in writing or reduced into writing which
are relevant to the matters in question. There is
no other provision in the Indian Evidence Act
permitting the cross-examination of a witness with
regard to his statement made subsequent to his
already concluded evidence recorded in Court.
Legislature, in its wisdom, has restricted cross-
examination of witness as regards his previous
statement only for the purposes of contradiction.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 31 –
2025:KER:20423
The object is to test veracity of the witness with
regard to his statement subsequently made in the
Court…..
4.xxx
5.xxx
6.xxx
7.xxx
8. If the witnesses are recalled subsequent to
the conclusion of their evidence in Court at the
behest of the accused on the basis of affidavits
subsequently filed by them contradicting their
previous statements made in court, it would be in
violation of the provisions contained in S.145,
Evidence Act. We are afraid that if such a course
is permitted perhaps there may be no end of any
trial. It can also not be overlooked that the
witnesses can be forced under threats or tempted
and won over under pressure or for monetary gains
to file affidavits subsequent to the conclusion of
their evidence in Court, contradicting their
previous statements and it could be so even after
the cases reach the appellate stage. We are of the
view that such a course cannot be permitted….”
14. It is accordingly concluded that Annexure-A8 Orders in
Crl.M.C.Nos.2006/2025 and 2216/2025 suffer from no infirmity
or illegality and the same are hereby upheld.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 32 –
2025:KER:20423
15. As indicated earlier, Crl.M.C Nos.2232/2025 and
2233/2025 are consequential. There, the petitioners, who are
accused person, sought for the copies of the deposition of
PW1/victim in S.C Nos.331/2024 and 162/2024, along with her
statements under Section 161 Cr.P.C. The same were dismissed
holding that the petitioner is a stranger and issuance of
copies would violate the right to privacy of the victim. The
proposition made by the learned Sessions Judge cannot be
held to be bad in law. That apart, these Crl.M.Cs have lost
its significance in view of the dismissal of the first two
Crl.M.Cs, i.e., 2006/2025 and 22162025.
16. In the circumstances, all the four Crl.M.Cs will stand
dismissed. The interim orders will stand vacated.
Appreciation galore to the sincere efforts taken by the
learned Amicus in addressing the core issue involved in
these Crl.M.Cs.
Sd/-
C.JAYACHANDRAN, JUDGE
vdv/ww
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 33 –
2025:KER:20423
APPENDIX OF CRL.MC 2006/2025
PETITIONER’S ANNEXURES:
ANNEXURE A1 THE TRUE COPY OF THE FIR IN CRIME
(SEALED COVER 1) NO.53/2024 OF PERINADU POLICE STATION,
PATHANAMTHITTA DISTRICT.
ANNEXURE A2 THE TRUE COPY OF THE FINAL REPORT IN
(SEALED COVER 2) CRIME NO.53/2024 OF PERINADU POLICE
STATION, PATHANAMTHITTA DISTRIT AGAINST
THE PETITIONER/ACCUSED NO.12 WHICH IS
PENDING AS S.C.NO.366/2024 OF FAST TRACK
SPECIAL COURT, ADOOR.
ANNEXURE A3 THE TRUE COPY OF THE JUDGMENT DATED
03.02.2025 IN S.C NO.331/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT, ADOOR
ACQUITTING ACCUSED NO.8 IN ANN.A1 FIR.
ANNEXURE A4 THE TRUE COPY OF THE JUDGMENT DATED
03.02.2025 IN S.C NO.162/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT, ADOOR
ACQUITTING ACCUSED NO.13 IN ANN.A1 FIR.
ANNEXURE A5 THE TRUE COPY OF THE ORDER DATED
30.01.2025 IN COPY APPLICATION
NO.34/2025 IN S.C NO.331/2024 OF FAST
TRACK SPECIAL COURT, ADOOR.
ANNEXURE A6 THE TRUE COPY OF THE ORDER DATED
30.01.2025 IN COPY APPLICATION
NO.35/2025 IN S.C NO.162/2024 OF FAST
TRACK SPECIAL COURT, ADOOR.
ANNEXURE A7 THE TRUE COPY OF THE CRL.MP NO.42/2025
IN S.C NO.366/2024 ON THE FILES OF FAST
TRACK SPECIAL COURT, ADOOR FILED TO
RECALL PW1 FOR FURTHER CROSS
EXAMINATION.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 34 –
2025:KER:20423
ANNEXURE A8 THE CERTIFIED COPY OF THE ORDER DATED
24.02.2025 IN CRL.MP NO.42/2025 IN S.C
NO.366/2024 ON THE FILES OF FAST TRACK
SPECIAL COURT, ADOOR
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 35 –
2025:KER:20423
APPENDIX OF CRL.MC 2216/2025
PETITIONER’S ANNEXURES:
ANNEXURE A1 THE TRUE COPY OF THE FIR IN CRIME
(SEALED COVER 1) NO.53/2024 OF PERINADU POLICE STATION,
PATHANAMTHITTA DISTRICT.
ANNEXURE A2 THE TRUE COPY OF THE FINAL REPORT IN
(SEALED COVER 2) CRIME NO.53/2024 OF PERINADU POLICE
STATION, PATHANAMTHITTA DISTRIT AGAINST
THE PETITIONER/ACCUSED NO.15 WHICH IS
PENDING AS S.C.NO.463/2024 OF FAST TRACK
SPECIAL COURT, ADOOR.
ANNEXURE A3 THE TRUE COPY OF THE JUDGMENT DATED
03.02.2025 IN S.C NO.331/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT, ADOOR
ACQUITTING ACCUSED NO.8 IN ANN.A1 FIR.
ANNEXURE A4 THE TRUE COPY OF THE JUDGMENT DATED
03.02.2025 IN S.C NO.162/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT, ADOOR
ACQUITTING ACCUSED NO.13 IN ANN.A1 FIR.
ANNEXURE A5 THE TRUE COPY OF THE ORDER DATED
30.01.2025 IN COPY APPLICATION
NO.34/2025 IN S.C NO.331/2024 OF FAST
TRACK SPECIAL COURT, ADOOR.
ANNEXURE A6 THE TRUE COPY OF THE ORDER DATED
30.01.2025 IN COPY APPLICATION
NO.35/2025 IN S.C NO.162/2024 OF FAST
TRACK SPECIAL COURT, ADOOR.
ANNEXURE A7 THE TRUE COPY OF THE CRL.MP NO.47/2025
IN S.C NO.463/2024 ON THE FILES OF FAST
TRACK SPECIAL COURT, ADOOR FILED TO
RECALL PW1 FOR FURTHER CROSS
EXAMINATION.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 36 –
2025:KER:20423
ANNEXURE A8 THE TRUE COPY OF THE ORDER DATED
03.03.2025 IN CRL.MP NO.47/2025 IN S.C
NO.463/2024 ON THE FILES OF FAST TRACK
SPECIAL COURT, ADOOR.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 37 –
2025:KER:20423
APPENDIX OF CRL.MC 2232/2025
PETITIONER’S ANNEXURES:
ANNEXURE A1 THE TRUE COPY OF THE FIR IN CRIME
(SEALED COVER 1) NO.53/2024 OF PERINADU POLICE STATION,
PATHANAMTHITTA DISTRICT.
ANNEXURE A2 THE TRUE COPY OF THE FINAL REPORT IN
(SEALED COVER 2) CRIME NO.53/2024 OF PERINADU POLICE
STATION, PATHANAMTHITTA DISTRIT AGAINST
THE PETITIONER/ACCUSED NO.15 WHICH IS
PENDING AS S.C.NO.463/2024 OF FAST TRACK
SPECIAL COURT, ADOOR.
ANNEXURE A3 THE TRUE COPY OF THE JUDGMENT DATED
03.02.2025 IN S.C NO.331/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT, ADOOR
ACQUITTING ACCUSED NO.8 IN ANN.A1 FIR.
ANNEXURE A4 THE TRUE COPY OF THE JUDGMENT DATED
03.02.2025 IN S.C NO.162/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT, ADOOR
ACQUITTING ACCUSED NO.13 IN ANN.A1 FIR.
ANNEXURE A5 THE TRUE COPY OF THE APPLICATION VIDE
NO.34/2025 IN S.C NO.331/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT,
ADOOR.
ANNEXURE A6 THE TRUE COPY OF THE ORDER DATED
30.01.2025 IN COPY APPLICATION NO.
34/2025 IN S.C NO.331/2024 OF FAST TRACK
SPECIAL COURT, ADOOR.
Crl.M.C.Nos.2006, 2216, 2232 and 2233 of 2025
– 38 –
2025:KER:20423
APPENDIX OF CRL.MC 2233/2025
PETITIONER’S ANNEXURES:
ANNEXURE A1 THE TRUE COPY OF THE FIR IN CRIME
(SEALED COVER 1) NO.53/2024 OF PERINADU POLICE STATION,
PATHANAMTHITTA DISTRICT.
ANNEXURE A2 THE TRUE COPY OF THE FINAL REPORT IN
(SEALED COVER 2) CRIME NO.53/2024 OF PERINADU POLICE
STATION, PATHANAMTHITTA DISTRICT AGAINST
THE PETITIONER/ACCUSED NO.12 WHICH IS
PENDING AS S.C.NO.366/2024 OF FAST TRACK
SPECIAL COURT, ADOOR.
ANNEXURE A3 THE TRUE COPY OF THE JUDGMENT DATED
03.02.2025 IN S.C NO.331/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT, ADOOR
ACQUITTING ACCUSED NO.8 IN ANN.A1 FIR.
ANNEXURE A4 THE TRUE COPY OF THE JUDGMENT DATED
03.02.2025 IN S.C NO.162/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT, ADOOR
ACQUITTING ACCUSED NO.13 IN ANN.A1 FIR.
ANNEXURE A5 THE TRUE COPY OF THE APPLICATION VIDE
NO.35/2025 IN S.C NO.162/2024 ON THE
FILES OF FAST TRACK SPECIAL COURT,
ADOOR.
ANNEXURE A6 THE TRUE COPY OF THE ORDER DATED
30.01.2025 IN COPY APPLICATION
NO.35/2025 IN S.C NO.162/2024 OF FAST
TRACK SPECIAL COURT, ADOOR.