Indrajit Ghosh @ Indra Ghosh vs State Of Tripura & Anr

S.G. Chattopadhyay, J

[1] Heard Mr. A. Acharjee, learned counsel appearing for the petitioner. Also heard Mr. R. Datta, learned P.P. appearing for the State respondent along with Mr. S. Debnath, learned Addl. P.P.

[2] By means of filing this criminal revision petition, accused petitioner has challenged the order dated 09.09.2022 passed by the Special Judge (POCSO), West Tripura, Agartala in case No. Special (POCSO) 03 of 2022 whereby the learned Special Judge allowed the petition moved by the prosecution under section 311, Cr.P.C. for recalling the first informant of this case for her re-examination to take into evidence the birth certificate of the victim in the course of trial.

[3] Mr. A. Acharjee, learned counsel submits that the sole purpose of recalling the witness was to cure the lacuna in the prosecution case which is not permissible under the law. Counsel has contended that once the witness was examined during trial, the trial court was not justified in recalling the witness in exercise of power conferred under section 311 Cr.P.C. in the given circumstances. Counsel, therefore, urges the Court to set aside the impugned order passed by the learned Special Judge.

[4] Mr. R. Datta, learned P.P. on the other hand submits that in a trial under the POCSO Act, the birth certificate of the victim is a vital piece of evidence. Even though the said document was seized by the investigating agency in original from the custody of the first informant, the same was not produced during trial inadvertently. As a result, the birth certificate of the victim could not be taken into evidence. Counsel contends that the document is absolutely essential for a just decision of the case. Learned P.P., therefore, urges the Court for rejecting the revision petition.

[5] Considered the submissions made by the respective counsel of the parties. Perused the record.

[6] There is merit in the submission of learned P.P. that the birth certificate of the victim is a significant document in a trial under the POCSO Act to prove the minority of the victim. Section 311, Cr.P.C. empowers the Court even to recall and re-examine any person already examined if the evidence of such person appears to the Court to be essential to the just decision of the case.

[7] By the impugned order, the trial court exercised such power conferred on it and allowed the prosecution to re-examine the first informant for the purpose of taking into evidence the birth certificate of the victim. The trial court passed a detailed and reasoned order. I find no ground at all to interfere with the impugned order. The petition is, therefore, rejected with a direction to the trial court to proceed with the matter. However, before re-examination of the witness, a copy of the document shall be supplied to the accused. Since the prosecution sought for recalling the witness for her re-examination to prove the age of the victim by taking her birth certificate into evidence, re-examination of the witness shall be confined to that issue only and accused shall be given opportunity to cross-examine her.

[8] In terms of the above, the criminal revision petition stands disposed of. Pending application(s), if any, shall also stand disposed of.