Reji vs State Of Kerala

A. Badharudeen, J

In this Criminal Miscellaneous Case filed under Section 482 of the Criminal Procedure Code (`Cr.P.C’ for short) the sole accused in S.C.No.280/2016 on the files of the Special Court for the trial of offences relating to atrocities against Women and Children including Protection of Children against Sexual Offences (`POCSO') Cases, Alappuzha, impugns order in Crl.M.P.No.975/2022 dated 12.04.2022.

When this matter came up for admission on 19.04.2022, this Court stayed the proceedings in S.C.No.280/2016 till 18.05.2022 and thereafter stay has been extended periodically.

As on 16.10.2024, the learned Special Judge sent a letter to this Court as directed by the committee of this Court to monitor and regulate the process of trials under the POCSO Act stating that this case comes under the 5+ year old category and that all further proceedings in this case have been stayed by this Court and is one among the pending oldest cases before the Special Court.

Here the prosecution alleges commission of offences punishable under Sections 342 and 376 of the Indian Penal Code (`IPC' for short) and Sections 3(a) and 4 of Protection of Children from Sexual Offences Act, 2012 (`POCSO Act' for short). The trial court completed pre-trial steps and proceeded with trial and PW1 was examined. At the time of examining PW1, the accused produced 5 letters and attempted to confront the same with PW1 on the submission that those letters were written by PW1. Among 5 letters, 2 of them were admitted by PW1 and got marked as Exts.D2 and D3 and 3 letters were denied by PW1. At this juncture, the accused filed the present application to send the above 3 letters, which were denied by PW1, for getting expert opinion under Section 73 of the Indian Evidence Act.

Prosecution  opposed  the  same  contending  that  the intention was to delay the trial of the case and those letters were not confronted with PW1. The learned Special Judge found that when Exts.D2 and D3 were confronted with PW1, she admitted the same. But the other 3 letters were not confronted with PW1 and without doing the said exercise, the present petition was filed to send the same to Forensic Science Laboratory to get expert opinion, is unwarranted. The learned Special Judge also found that if letters sought to be forwarded to Forensic Science Laboratory are written by PW1, then also the same did not show as to whom it was addressed and the letters do not contain anything to admit the defence version and accordingly the petition was dismissed.

While assailing Annexure-A2 order, the learned counsel for the petitioner argued that getting expert report after sending 3 letters, alleged to be written by PW1, is essential for the accused to prove his innocence and to prove the consensual relationship.

Whereas the learned Public Prosecutor opposed the prayer in the petition for the reasons urged by the learned Public Prosecutor before the trial court.

In  the  instant  case,  trial  started  and  during  cross examination of the witness, who was examined as PW1, 5 letters were produced and 2 of them confronted with PW1 and the same were admitted. But 3 other letters were not confronted and no opportunity was given to PW1 either to deny or accept the same. But strangely, the present application was filed with prayer to send the same for expert opinion and to get expert report to prove that those letters are also written by PW1.

On going through the facts of the case, a minor victim was subjected to sexual molestation including aggravated form of penetrative sexual assault and in such a case consent is of no relevance. Therefore, even if the defence side proves that those letters are written by PW1 herself and the same elicits element of consent, the same would not have any bearing on the merits of the case. Therefore, as observed by the learned Special Judge the present application was one filed only to delay the trial in the case, starting from 19.04.2022.

In view of the above discussion, the order doesn't require any interference at the hands of this Court. Accordingly, this Crl.M.C stands dismissed, with direction to the trial court to expedite the trial and finish the same within a period of three months from the date of receipt of a copy of this order.

Interim order granted shall stand vacated.

Registry shall forward a copy of this order to the jurisdictional court for information and further steps forthwith through e-mail.