Mangilal @ Mangu vs State of M.P.

M.K. Mudgal, J.—With the consent of both the parties, the matter is finally heard at the motion stage.

The petitioner/accused has preferred this petition u/s 482 of Cr.P.C. being aggrieved by the order 24.4.2014 passed by Special Judge, Guna in Sessions trial No. 9/14 dismissing the applications filed by the petitioner u/s 311 of Cr.P.C. for recalling the prosecutrix for cross-examination and u/s 53(A) of Cr.P.C. for getting her D.N.A. Test conducted.

Heard on admission and perused the record.

As per the prosecution story the prosecutrix, deaf and dumb was raped by the petitioner/accused. After investigation, the charge sheet was filed against him and charges were framed u/s 376, 456 of IPC and Section 3(1)(xii) of S.C./S.T. Act. During trial, the statement of prosecutrix was recorded with the help of a government teacher posted at Higher Secondary School for the deaf and dumb.

An application u/s 311 of Cr.P.C. dated 11.4.2014 was filed by the petitioner for recalling the prosecutrix for cross-examination stating that the statement of the prosecutrix was recorded on 28.3.14. Her statement was recorded with the help of Girish Chandra Tiwari. As per order dated 4.3.2014 the petitioner/accused was given liberty to bring an expert who could comprehend the sign language of a deaf and dumb in his defence but he failed to do so owing to which his counsel could not properly understand the statement of the prosecutrix which had been recorded by the court. Consequently, the petitioner/accused was deprived of submitting his defence by effective cross examination. The said application was opposed by the prosecution alleging that it was filed with malafide intention to procrastinate the case.

The application was dismissed by the trial court on the ground that the petitioner was given two dates 5.3.14 and 6.3.14 for producing his expert before the court as per order dated 4.3.14, however, he failed to produce the expert for his defence and he did not inform the court that the expert had refused to come in the court for his defence. Moreover, even on the next hearing dated 25.3.14 he did not state any such reason as stated in the application dated 11.4.14. Further, after closure of the evidence of prosecution, this application was filed with malafide intention because of which the application was dismissed.

The learned counsel for the petitioner placing reliance upon the judgment in the case of P. Sanjeeva Rao Vs. The State of A.P., has submitted that the prosecutrix ought to have been recalled by the trial court for cross-examination and the learned trial Court has committed an error in dismissing the application of the petitioner.

The arguments were considered.

On perusal of the impugned order and the statement of prosecutrix, it becomes clear that in pursuance to the order dated 4.3.14, the petitioner was given two opportunities for producing his expert in his defence, however he failed to do so. Moreover, the statement of the prosecutrix was recorded by the court with the help of sign language expert Girish Chand and a great deal of cross-examination of the statement of the prosecutrix was made by the counsel for the petitioner/accused. It is true that the court has power u/s 311 of Cr.P.C. to recall any witness at any stage for cross-examination, but there must be cogent reason for it. In this case there is nothing like this. Besides it, the court has recorded the statement of the prosecutrix after full satisfaction, having understood her statement with the help of expert. It is worth mentioning here that there is no such mandatory provision that allows the recording of the statement of deaf and dumb witness only when an expert of defence is present in the court. In view of the facts, it is concluded that the accused was not deprived of cross-examination at all. The other judgments cited by the petitioner as Vinod Vs. State of M.P., and Krishan Kumar Malik Vs. State of Haryana, do not support the petitioner in this case as the same are not relevant to the question involved in this case and therefore, the learned trial court has not committed any error in dismissing the application.

So far as other application filed by the petitioner u/s 53(A) of the Cr.P.C. for getting DNA test of prosecutrix conducted is concerned, the said application has no relevance in this case as the prosecutrix is a married lady and in this case, paternity of the womb is not be decided by this Court. On the other hand, as per the charges framed against the petitioner-accused, it is to be decided whether, the rape was committed by the accused with the prosecutrix or not. Thus, the trial Court has properly dismissed the said application.

After having considered the aforesaid facts and circumstances of the case, this petition being merit-less and devoid of substance, is hereby dismissed.