Vivek Bishwash vs State of Chhattisgarh

K.H.N. Kuranga, C.J.—Heard both the Counsel.

This petition is listed for admission today. With the consent of both the Counsel the petition is disposed of on merits.

Applicant-Vivek Bishwash is an accused in Sessions Trial No. 295 of 2000 pending on the file of the First Additional Sessions Judge, Kanker. He was charge-sheeted for the commission of the offences punishable under Sections 342, 376 and 506 of the Indian Penal Code.

Learned Counsel for the applicant submitted that the trial was almost at the end and the case is posted for defence evidence. On behalf of the applicant an application was filed u/s 311 of the Code of Criminal Procedure (for short ''the Code'') for recalling P.W. 1 and P.W. 2 and to further cross-examine them on the point of the age of the prosecutrix. It is submitted that the mark-sheet of the prosecutrix was also produced and it was on record. Counsel submits that though P.W. 1 and P.W. 2 were cross-examined at length, by inadvertence no questions were asked to them regarding age of the prosecutrix. In the circumstances, learned Sessions Judge ought not to have dismissed the application filed on behalf of the applicant u/s 311 of the Code.

Learned Counsel for the State/non-applicant submitted that the learned Sessions Judge has rejected the application filed by the applicant on the ground that sufficient opportunity was given to the Counsel for the applicant to cross-examine P.W. 1 and P.W. 2 and in fact they were cross-examined at length. The stand taken by the Counsel for the applicant is that by inadvertence of the Counsel the questions were not asked regarding the age of the prosecutrix to P.W. 1 and P.W. 2. Merely because P.W. 1 and P.W. 2 were cross-examined at length, it is not a ground to reject the request made on behalf of the applicant for recalling P.W. 1 and P.W. 2 and to put questions regarding the age of the prosecutrix.

Having regard to the facts and circumstances of the case and the stage of the proceedings, I am of the opinion that it is appropriate to set aside the order passed by the learned First Additional Sessions Judge, Ranker, dismissing the application filed on behalf of the applicant u/s 311 of the Code and allow the application filed by the applicant u/s 311 of the Code and recall P.W. 1 and P.W. 2 and permit the Counsel for the applicant to put questions to P.W. 1 and P.W. 2 regarding the age of the prosecutrix and thereafter dispose of the case in accordance with law.

Ordered accordingly and the petition stands disposed of.

In view of this order, the applications [M.(Cr).P. No. 4063 of 2002 and I. A. No. 168 of 2003] stand disposed of.

Parties are entitled for certified copy of this order.