Ishwar Chandra Mahto vs The State of Bihar

Aggrieved by order dated 10.8.2016 passed by the learned Additional Sessions Judge-I, Palamau in POCSO Case No. 17/2014 (G.R. No. 1914/2013, arising out of Nawadiha Bazar P.S. Case No. 50/2013), the instant petition has been filed by the petitioner-accused.

The FIR is based upon the statement of one Ashok Saw which is registered under Sections 366A and 120B IPC, in which, P.W.7 is the victim, who is admittedly a minor.

The accused filed an application under Section 311 Cr.P.C. praying therein to recall the victim (PW7) to enable them to cross-examine her again. The said application was dismissed vide order dated 10.8.2016 which is challenged by way of filing this petition under Section 482 Cr.P.C. before this Court.

The counsel for the petitioner submits that it is absolutely necessary to re- examine the victim (P.W.7) as she was not properly cross-examined earlier. He further submits that the statement of the victim (P.W.7) was recorded under Section 164 Cr.P.C in which, she has not taken the name of the petitioner nor had named any of the accused. It has further been stated that the statement of the victim (P.W.7) was recorded under Section 164 Cr.P.C in the year 2013 and this witness came to depose before the Court in the year 2015. During this period she was staying with her parents but this fact could not be extracted from her in cross-examination, as a result of which, she needs to be further cross-examined. He lastly submits that the court below has failed to take into consideration the aforesaid aspect and dismissed the petition. Learned counsel for the petitioner has relied upon the decisions rendered in the case of Rajaram Prasad Yadav Vs. State of Bihar and Another reported in (2013) 14 SCC 461 and Natasha Singh Vs. Central Bureau of Investigation reported in (2013) 5 SCC 741.

Learned A.P.P. opposes the prayer made by the petitioner and has drawn attention to this Court through the petition filed under Section 311 Cr.P.C. by the petitioner along with others. He submits that there is nothing on record to suggest as to what is the reason to recall the victim (P.W.7) for examining her again. He further submits that Section 311 Cr.P.C. cannot be used merely on the basis of wish of any party.

I have heard the learned counsel for the petitioner and the learned A.P.P. and have gone through the record of this case. Admittedly, the statement of the victim (P.W.7) has been recorded under Section 164 Cr.P.C., which is on record. P.W.7 in her statement recorded under Section 164 Cr.P.C gives description of the occurrence. While cross-examination by the defence, the attention was drawn to her statement given earlier under Section 164 Cr.P.C. She narrated what she stated before the learned Magistrate by referring to her statement under Section 164 Cr.P.C. She has also denied the suggestion that she has been tutored to give the evidence by her father and mother. This witness was examined and discharged.

The Hon''ble Supreme Court in the case of Rajaram Prasad Yadav (Supra) has held that the power under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection.

In this instant case this petitioner does not whisper as to why he wanted to examine the victim (P.W.7) again after recalling her. The petition filed under Section 311 Cr.P.C. by the petitioner is vague and does not spell out as to why it is necessary for the petitioner to recall her. Further in the said petition, nowhere, it has been stated that what will be the prejudice caused to the accused if she is not recalled. I find from the evidence of P.W. 7 that she has been cross-examined at length regarding her statement given under Section 164 Cr.P.C.. Further I find that the material which is brought on record is sufficient for trial court to come to fair conclusion in this case. I also find that the petitioner could not bring his case under any of the principles, which have been enumerated in the case of Rajaram Prasad Yadav (Supra). Thus the trial court has rightly rejected the petition filed under Section 311 Cr.P.C by the petitioner.

There is no merit in this petition, the same is dismissed, accordingly.