V.Selvam vs State And Another

Madhumati Mitra, J

The petitioner has filed affidavit of service showing the service of notice upon the defacto complainant in connection with the present revisional application, being CRR No.25 of 2019. Let it be kept with the record.

None appears in spite of notice upon defacto complainant.

Heard the submissions made by the learned counsel appearing for the parties in full.

It is the specific grievance of the petitioner that the learned Court below has failed to record the evidence of PW-1 correctly. Learned counsel has contended that PW-1 was declared hostile by the prosecution and during the cross-examination of PW-1 by the prosecution after declaring her hostile the learned Trial Court failed to record the said cross-examination in proper manner. When the prosecution was putting questions to PW-1 on the basis of her previous statement recorded under section 161 of the Code of Criminal Procedure made before the Investigating Officer, learned Trial Judge failed to record the same properly.

The petitioner raised objection before the learned Trial Judge and prayed for correction of the cross-examination of the PW-1 but the said prayer was turned down. Thereafter, the learned Trial Judge concluded the cross-examination of the petitioner without affording an opportunity to the petitioner to cross-examine the PW-1.

I have perused the materials placed on record as well as deposition of PW-1 recorded by learned Special Judge. There is no endorsement made by learned Judge wherefrom it can be presumed that the deposition was read over to the witness i.e. PW No.1. Omission to read over deposition may cause prejudice to the accused.

At the time of perusal of the materials placed on record, it appears that the petitioner is being tried for commission of the alleged offences punishable under sections 354 (a)(c) of the Indian Penal Code read with section 11 (iv) /12 of the POCSO Act. From the materials placed on record, it also appears that PW-1 was declared hostile by the prosecution. She was cross-examined by the prosecution after declaring her hostile. She was put several questions by the prosecution on the basis of her statement made before the Investigating Officer under section 161 of the Code of Criminal Procedure. The grievance of the petitioner is that the deposition during cross examination of PW No.1 was not properly recorded by the learned Trial Court. The form and mode of recording of the cross-examination of the said PW-1 on the basis of her previous statement made before the Investigating Officer were not proper and the interest of the petitioner has been highly prejudiced due to that wrong recording of evidence.

In this connection, I would like to mention that there is no provision for correction of the evidence already recorded. In this regard, we may take the recourse to the provision as incorporated in sub-section 2 of Section 278 of the Code of Criminal Procedure. It is true that Section 278(2) of the Code of Criminal Procedure is applicable to the witness, and the accused is not entitled to convey any suggestion to a witness in the form of a correction altering her/his evidence, though he may call attention to the incorrect mode of recording of evidence or obvious slips or omission.

Materials placed on record reveal that the petitioner had raised objection and drew the attention of the Court to the wrong recording of the cross-examination of the PW -1 by the prosecution after declaring her hostile. The learned Trial Judge ought to have taken the recourse to sub-section 2 of Section 278 of the Code of Criminal Procedure by making a memorandum appended to the deposition of PW No.1.

I think that the impugned order passed by the learned Trial Judge requires to be interfered with. The learned Trial Judge is directed to record the objection as raised by the petitioner in the form of memorandum as mentioned under sub-section 2 of Section 278 of the Code of Criminal Procedure. At the same time, the learned Trial Judge is directed to afford an opportunity to the petitioner to cross-examine the PW-1. The impugned order is modified accordingly.

Before parting with the case, I would like to draw the attention of the learned Trial Judge, that in the instant case, there is no endorsement wherefrom it can be presumed that the deposition was read over to the PW No.1. Deposition should be read over to the witness and there should be an endorsement in that regard on the deposition sheet. Learned Judge is directed to be more careful so that such type of mistake may not happen in future.

Let a copy of this order be sent to the learned Trial Court for information and taking necessary action.

At the same time, the petitioner is directed to appear before the learned Trial Judge and to conclude the cross-examination without taking any unnecessary adjournment.

Impugned order is modified accordingly. The Revisional Application being CRR No.025 of 2019 stands disposed of.

Urgent xerox certified copy of this order, if applied for, be supplied to the Learned Counsel for the parties upon compliance of usual formalities.