Mukesh Kumar Gupta vs The State of Madhya Pradesh

G.S. Solanki, J.—This revision has been filed by the applicant under Section 397/ 401 of the Cr.P.C. being aggrieved by order dated 26.6.2014 passed by First Additional Sessions Judge, Sidhi in S.T. No. 45/2014 whereby the application filed by the applicant under Section 311 of the Cr.P.C. has been dismissed.

The facts, in short, giving rise to this revision are that the applicant/accused is facing trial for the offence punishable under Section 376, 506-B of the IPC and Section 3/ 4 of the Protection of Children from Sexual Offences Act, 2012 before First Additional Sessions Judge, Sidhi. It has been alleged that the applicant has committed the rape upon minor prosecutrix Shanti on 21.1.2014.

It is not in dispute that the statements of the prosecutrix (PW-1) and her mother Kailashwa (PW-2) have already been recorded before the trial Court on 12.3.2014, thereafter, an application was filed by the applicant on 17.6.2014 under Section 311 of the Cr.P.C. which was partly allowed for reexamination of the prosecutrix (PW-1) and her mother (PW-2) only to the extent of the age of the prosecutrix. The witnesses appeared before the trial Court on 26.6.2014 and on that day, another application under Section 311 of the Cr.P.C. has been filed by the applicant for re-examination of the prosecutrix on the basis of the affidavit which was filed by the prosecutrix, which application was dismissed by the trial Court, hence this revision.

Learned counsel for the applicant has submitted that the trial Court has committed illegality in dismissing the second application filed by the applicant under Section 311 of the Cr.P.C. The trial Court ought to have permitted cross-examination of the prosecutrix on the basis of the affidavit filed by her. Counsel has placed reliance on a decision of this Court Mangilal Vs. The State of M.P. - 1997(1) MPWN 204.

Learned Counsel for the State has supported the order passed by the trial Court.

I have heard the learned counsel for the parties at length and gone through the impugned order and other material on record. The trial Court itself partly allowed an application of the applicant filed under Section 311 of the Cr.P.C. for recalling prosecutrix (PW-1) and her mother (PW-2) to the extent of discrepancies in regard to the age of the prosecutrix. It reveals from the order sheet dated 26.6.2014 that both the prosecutrix and her mother were re-examined on the aforesaid point of age of the prosecutrix but the prosecutrix herself filed an affidavit before the trial Court without informing the public prosecutor, who was authorized to conduct the trial, therefore, the trial Court has dismissed the second application filed under Section 311 of the Cr.P.C. by the applicant.

It is true that in Mangilal Vs. The State of M.P., this Court has taken a view that if any witness has filed an affidavit after recording his evidence before the trial Court, the witness should be summoned for cross-examination, however, this question has elaborately been considered by the Apex Court in Yakub Ismailbhai Patel Vs. State of Gujarat, , in which it has been laid down by the Apex Court that once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath. Similar view has been taken by the Apex Court in Mishrilal and Others Vs. State of M.P. and Others, .

In the instant case, the prosecutrix has already been examined before the trial Court, therefore, in the light of the aforesaid decisions of the Apex Court, the authority cited by the applicant in Mangilal Vs. The State of M.P. (supra) is of no help to him. In my opinion, the trial Court has rightly dismissed the second application filed by the applicant under Section 311 of the Cr.P.C. I do not find any ground to make interference in the impugned order.

Consequently, the revision being devoid of merits, is hereby dismissed.