Sharawan Singh vs State of Rajasthan

H.R. Panwar, J.—By this criminal revision petition u/s 397/401, CrPC, the accused-petitioner has challenged the order dated 02.02.2005 passed by the Additional Sessions Judge, Sangaria, district Hanumangarh (for short, "the trial Court" hereinafter) in Sessions Case No.3/2004, by which the trial Court dismissed the application u/s 311, CrPC filed by the petitioner for further cross-examination of prosecutrix Rampyari alias Pyari.

The petitioner, alongwith co-accused, is facing trial before the trial Court for the offences under Sections 376,109 and 114 IPC. The allegation against the petitioner is that he committed rape on the prosecutrix Rampyari and his wife abetted the crime. The statement of the prosecutrix was recorded on 15.04 2004 wherein she gave evidence against the petitioner and co-accused. During pendency of the trial, an application u/s 97, CrPC was submitted by Smt.Sheto Bai, the grandmother of the prosecutrix before the Sub-Divisional Magistrate, Tibbi for recovery of the prosecutrix, whereupon she was recovered and her statement was recorded by the Sub-Divisional Officer, Tibbi on 03.09.2004, wherein she stated that earlier, on being threatened by her Mausi (mother''s sister), she gave statement against the petitioner and co-accused, who are her material grand-parents. She also filed an application and an affidavit before the trial Court on 21.02.2005 stating and deposing therein that on being persuaded by her Mausi, she gave statement against the petitioner and the co-accused Mahendra Kaur, who are her maternal grand-parents and stated that petitioner Sharawan Singh never committed rape on her. Thereafter, petitioner filed an application u/s 311 CrPC for re-examination of the prosecutrix, which has been dismissed by the trial Court vide impugned order dated 02.02.205. Hence, this revision petition.

I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Perused the order impugned, statement given by the prosecutrix before the Sub-Divisional Magistrate, Tibbi as also the application and affidavit submitted by the prosecutrix before the trial Court.

The trial Court, while dismissing the application u/s 311, CrPC held that no doubt can be created on the statement of the prosecutrix given before the trial Court on 15.04.2004 and at this stage, the statement given by her before the Sub-Division Magistrate on 03.09.2004 has no relevancy when the case is fixed for defence evidence.

In Moman Ram vs. Bhagawana Ram & Ors., 1997 (Suppl.) CLR 319 (Raj.), the witness had filed an affidavit that he was not eye-witness and due to the urge of his inner voice he is telling the truth now. On this, the accused filed an application for recalling the witness for cross-examination, which was rejected by the trial Court. Setting aside the order of the trial Court, this Court held that the right of the accused to call a witness for cross-examination is vital and the accused should not be prejudiced.

In Board of Technical Education, U.P. and others Vs. Dhanwantri Kumar and others, while interpreting Section 311, CrPC, the Hon''ble Supreme Court held as under:-

The very usage of the words such as ''any Court'', ''at any stage'' or ''of any enquiry, trial or other proceedings'', any person and any such person'', clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The Second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.

Thus, the legal position culled out from the aforesaid decisions is that Section 311, CrPC allows the Court to invoke its inherent powers at any stage, so long as the Court retains seisin of the Criminal proceedings without qualifying any limitation or prohibition. Needless to say that the trial of any Court reaches to its finality when the order or judgment is pronounced and till then Court has power to invoke the provisions of Section 311, CrPC.

Thus, the aforesaid reasons assigned by the trial Court for dismissing the application u/s 311, CrPC are contrary to the legal position culled out from the aforesaid decisions of the Hon''ble Supreme Court. While dismissing the application u/s 311, CrPC, the trial Court also erred in law in holding that at that stage there was no reason to doubt the statement of the prosecutrix recorded by it, which suggests that the trial Court formed an opinion regarding truthfulness of her statement prior to conclusion of trial. In this view of the matter, I am of the view that the trial Court has erred in law and on facts in dismissing the application u/s 311, CrPC.

Consequently, the revision petition is allowed. The impugned order dated 02.02.2005 passed by the trial Court is set-aside. The application u/s 311, CrPC filed by the petitioner is allowed and the trial Court is directed to recall prosecutrix Ram Pyari for further cross-examination on behalf of the accused-petitioner. The stay petition stands disposed of.