Ajay Batham vs State Of Madhya Pradesh And Others

Anand Pathak, J

The present petition under Section 482 of the Cr.P.C. has been preferred by the petitioner against the order dated 28-11-2023 passed in Session Trial No.156/2017 SC ATR (Atrocity) by the trial Court whereby right of the petitioner to cross-examine the witness has been closed.

Precisely stated facts of the case are that on 10-10-2016 at around 10 am to 11 am, the prosecutrix went to Shitala Mata Mandir to make worship where she met one Ajit @ Ajay Batham and he said that when he will go his home, then he will drop her at her home on motorcycle. She gave consent and went with him. Ajay Batham took her near forest railway track where he committed rape upon her forcibly. He left her there while giving threat to beat him if she tells her about this incident to anyone. Thereafter, she went to the house of petitioner’s brother namely Pramod where she resided at night and in the next morning, she lodged the FIR against the present petitioner.

Thereafter, after filing of the charge-sheet, charges were framed against the petitioner and trial was started and prosecution evidence was done as well as statements of most of the witnesses have been recorded except Investigating Officer of the case because when the Investigating Officer was called for cross-examination, then at that time counsel for the petitioner was not present before the trial court as he was engaged in Family Court. For which counsel for the petitioner moved an application for continuing the cross-examination on 29.11.2023 but trial court has not given any heed to the said application. Therefore, petitioner is before this court.

4 . It is the submission of learned counsel for the petitioner that the petitioner has falsely been implicated in this case. Whole prosecution story has been fabricated by the prosecutrix and order passed by the trial court is illegal and contrary to law. It is exclusive right of the petitioner to cross-examine the witness as per his choice in his defence. Therefore, prayed for allowing this petition in the interest of justice.

Heard the learned counsel for the parties and perused the documents appended thereto.

6 . This is a case where the petitioner is taking exception to the order dated 28.11.2023 passed by the Special Judge (Atrocities), Gwalior whereby petitioner’s right to cross-examine the prosecution witness has been closed.

In the case in hand, petitioner/accused is facing trial for the offence punishable under Section 376 of the IPC and Sections 3 (1) (W) (ii), 3 (2)(va) of the Atrocities Act. Matter was listed for prosecution evidence in which Investigation Officer Mr. U.N.S. Parihar, who is a retired police officer and residing at Rewa, was present on behalf of prosecution. Examination-in-chief was held in pre-lunch session and the counsel for the petitioner had to cross-examine the witness in post lunch session. This case was placed for cross-examination at post lunch session at the instance of counsel for petitioner himself. At post lunch session, it was informed that cross-examination of witnesses shall be carried out by Shri Rishi Katare, Advocate, but he did not remain present to do the same. Thereafter, one application was filed for adjournment on the ground that Shri Rishi Katare, Advocate suffered migrain stroke at Family Court, Gwalior, therefore, he was not able to perform cross-examination. This is an attempt purportedly at the instance of defence to get the case adjourned somehow and to harass the witness to the extent where trial would be delayed and witness may go disarray by such conduct. When petitioner had the opportunity to cross-examine the Investigating Officer, but he did not prefer to do so, then counsel for the petitioner only is to be blamed for such exigency which has been created by him.

8 . In cumulative analysis, no consideration can be shown because offence was committed on 21.10.2016 and even after seven years, prosecutrix is languishing to get justice. Prolonged prosecution for prosecutrix is nothing but secondary victimization. Therefore, no case for interference is made out.

Resultantly, petition sans merits and is hereby dismissed.