Mangilal vs State of M.P.

D.K. Paliwal, J.—Heard.

This petition has been filed u/s 397, 401 of Cr.P.C. against the order passed by Special Judge, Guna in Special S.T. No. 9/2012, whereby an application u/s 311 of Cr.P.C. filed by the petitioner has been rejected.

The facts giving rise to this revision petition in brief are that the victim, who is deaf and dumb, has lodged a report alleging that one Mangilal has committed rape on her. The crime was registered and after due investigation charge sheet has been filed. During prosecution evidence the victim has been cross-examined as PW-1. An application u/s 311 of Cr.P.C. has been moved by the petitioner stating that as per the evidence of the victim, she has narrated the incident to her husband that at 6.00 AM at the same time she also stated the presence of the petitioner in the field. The cross-examination could not be done on this point. It is further submitted that the incident has been committed in the house, but in the cross-examination no question has been asked whether neighbours have heard her cries or the incident was narrated to them. Hence it is prayed that the victim be called for re-cross-examination. The prayer was opposed by the prosecution. The learned trial Court has rejected the prayer holding that the defence has given proper opportunity for cross-examination, therefore, there is no need to recall the witness in the cross-examination. Being aggrieved this revision petition has been filed.

It is submitted by the learned counsel that the impugned order is contrary to the provisions of law overlooking the well settled law reported in Rajju @ Bolo Vs. State of Chhattisgarh, It is further submitted that the learned trial Court has rejected the prayer without considering the facts and circumstances of the case overlooking the provisions of Section 311 of Cr.P.C. Hence, the impugned order is liable to be set aside.

The prayer is opposed by the learned Public Prosecutor.

I have considered the rival submissions and gone through the provisions of Section 311 of Cr.P.C., which are reproduced hereinunder.:-

Power to summon material witness, or examine person present:-

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

The aforesaid provision makes it clear that it consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage, and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution.

Learned counsel appearing for the petitioner placing reliance on the decision rendered in Ajit Kumar Nath and Others Vs. State of Tripura, submitted that the petitioner is facing trial for the serious offence, hence he should not be deprived of his right of defence and because certain material question could not be asked from the victim, the prayer to call witness ought to have been allowed.

From perusal of the statement of the victim and cross-examination it appears that she has been cross-examined extensively, therefore, merely because some questions, which ought to have been put cannot be asked give any right to the accused to recall the witness for re-cross-examination. Consequently, I do not find any illegality or impropriety has been committed by the learned trial Court in rejecting the prayer of the petitioner. This petition is devoid of any merits, hence the same is dismissed.