Yogita Tripathi vs State Of U.P. And Another
2021 Latest Caselaw 1413 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 75
 

 
Case :- APPLICATION U/S 482 No. - 17206 of 2020
 

 
Applicant :- Yogita Tripathi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pramod Kumar Singh,Kartikeya Saran
 
Counsel for Opposite Party :- G.A.,Ashwini Kumar Ojha
 

 
Hon'ble Rajiv Gupta,J.

By means of this application under Section 482 CrPC, the applicant has challenged the order dated 10.09.2020 and 01.10.2020 passed by Additional Sessions Judge, POCSO Act, Court No. 9, Jhansi in Sessions Trial No. 216 of 2019 (State Vs. Kamlapat Rai), arising out of Case Crime No. 117 of 2018, under Section 376 IPC, Police Station Barua Sagar, District Jhansi, wherein applications moved under Section 311 CrPC by Akshalendra Pratap Singh, brother of the applicant and subsequently, by the applicant Yogita Tripathi herself for recalling her so that she may be able to adduce her evidence again in respect of an offence of rape on her, has been rejected by the trial court vide orders dated 10.09.2020 and 01.10.2020.

Heard learned counsel for the applicant, learned AGA for the State, Shri Ashwini Kumar Ojha, learned counsel for the Opposite Party No.2 and perused the record.

Learned counsel for the applicant has submitted that the applicant is the first informant in the present case registered vide Case Crime No. 117 of 2018, wherein it has been stated that on 05.08.2018 at about 6:00 PM, the applicant had gone to worship at Mansil Mata Mandir, Barua Sagar and thereafter, at about 6:30 PM, when she was searching for a vehicle for returning back to her home, then the Opposite Party No.2 Kamlapat Rai driving his white car reached there and offered her to sit in the vehicle and he would drop at Orcha. Since said Kamlapat Rai was already acquainted to her, she sat on the rear seat of the car and thereafter, he left the place, however, on the way, when the applicant requested to allow him to alight from the vehicle, then he stopped the car and committed rape upon her on the rear seat of the vehicle and thereafter, she somehow rescued herself and after opening the door of the car, tried to run away from the place of the incident.

In respect of the said incident, an FIR was lodged on 06.08.2018 at about 4:30 PM. On the basis of the said FIR, the Investigating Officer investigated the matter and submitted the charge-sheet against the accused and the case was committed before the court of Sessions. The charges were framed against the accused, to which, accused denied and the case was fixed for recording of evidence.

During the pendency of the aforesaid case, an FIR was lodged against the applicant Yogita Tripathi by one Prashant Rathour at Police Station Orcha, District Tikamgarh, Madhya Pradesh, in which, the applicant was made an accused and pursuant to the said FIR, she was arrested on 16.10.2019. The copy of the said FIR has not been annexed.

It has been further stated that after framing of charges against the Opposite Party No.2 in Case Crime No. 117 of 2018, trial started and on 12.11.2019 and 15.11.2019, examination-in-chief of the first informant was recorded and thereafter, she was cross-examined on 15.11.2019 itself and 02.12.2019, however, she did not support the prosecution story and was declared hostile.

After concluding the statement of the first informant (PW-1), the statements of PW-2, PW-3 and PW-4 (husband of the applicant) were recorded, however, all the said witnesses also did not support the prosecution story and has been declared hostile.

After concluding of the prosecution evidence, an application under Section 311 CrPC was first filed by Alakshendra Pratap Singh, brother of the applicant, stating therein that the statement of witnesses has been given under threat and coercion as the applicant was made an accused in a case under Section 302 IPC lodged by one Prashant Rathour and the said statement is not true the version of the incident, as such, she be recalled and her statement be recorded afresh. The said application was considered by the trial court and the trial court, after taking into consideration the entire material and evidence on record, rejected the said application vide its order dated 10.09.2020 on the ground that the applicant was examined and cross-examined on three dates i.e. 12.11.2019, 15.11.2019 and 02.12.2019, however, during the examination and cross-examination, the applicant has not made a whisper that the said examination and cross-examination is being given by her under threat and coercion either to the court or to the police. After six months of the conclusion of the evidence, when the case was fixed for recording the evidence under Section 313 CrPC, an application has been filed for recalling PW-1 and permitting her to depose again before the trial court as earlier evidence adduced by her was under coercion and threat which is beyond the scope of Section 311(2) Cr.P.C. and also on the ground that the said application was filed by the brother of the applicant and not by the applicant herself. Consequent to the said order dated 10.09.2020, another application was filed by the applicant herself on 19.09.2020 on identical grounds and again a prayer was made to recall her so that she may be able to depose again and on the said testimony the accused be punished. The said application was also considered by the trial court and was rejected vide order dated 01.10.2020 against which the present application u/s 482 Cr.P.C. has been filed.

Learned counsel for the applicant has submitted that though at the earlier stage of trial, the applicant has deposed in the Court, which was in favour of the accused but now, she wants to depose differently. He has next submitted that at the earlier stage when her testimony was recorded, she was under threat and coercion and therefore, could not depose truthfully and she be given an opportunity to depose before the trial court by recalling her and permitting her to adduce her evidence afresh and no prejudice would be caused to the accused if the witness is re-examined as he will have opportunity to cross-examine her further.

In support of his contentions, learned counsel for the applicant has relied upon the decisions reported in (2013) 16 SCC 173 , Meena Lalita Barua Vs. State of Orissa and another and unreported decision of in an Application U/s 482 No. 8463 of 2020, Amarjeet @ Karua Vs. State of U.P. and another and on the basis of said decisions, impugned order passed by the trial court is illegal and is liable to be set aside.

Per contra, learned AGA as well as learned counsel for the Opposite Party No.2 has vehemently opposed the said prayer and has submitted that orders passed by the trial court do not suffer from any illegality and has been passed after taking into consideration the entire material and evidence on record and circumstances of the case and if the applicant is permitted to re-adduce her evidence, then certainly it would cause great prejudice to him as the earlier stage of trial, she has turned hostile and the said exercise would amount to gross abuse of process of the Court. The orders passed by the trial court are just, proper and legal and do not call for any interference by this Court at this stage.

Section 311 of the CrPC envisages :-

311. 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 power under Section 311 CrPC must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reason and the same must be exercised with care, caution and circumspection but not in a casual and routine manner. It is an enabling section, which enables the court for examining the witnesses either examined or to be examined to meet the ends of justice. The recall of a witness, already examined, should not be a matter of course and discretion given to the court and in this regard, has to be exercised judicially to prevent the failure of justice. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society.

The Court is fully conscious of the position that after all the trial is basically for the prisoners/ accused and the Court should afford an opportunity to them in the fairest possible manner but at the same time, the Court should bear in mind that fair trial entails the interest of the accused, the victim and the society.

Having considered the rival submission made by the parties and in view of the settled principle of law with regard Section 311 CrPC and after perusing the material on record, it is evident that during the entire course of adducing the evidence before the trial court by the four prosecution witnesses including the applicant, at no point of time, it was even pointed out before the trial court or the police that the said witnesses are adducing their evidences under threat or coercion and subsequently, when the entire prosecution evidence has been completed, an application was filed by the applicant to get her re-examined in exercise of power under Section 311 CrPC in the garb of the fact that earlier evidence was adduced under threat and coercion. The truthfulness of which is questionable. It appears that the applicant wants to resile from her earlier statement to lead a completely different version of the incident, which do not fall within the scope of Section 311 CrPC. The reasons assigned by the trial court are well within the discretion vested in the lower court and do not call for any interference by this Court at this stage.

The judgments relied upon by learned counsel for the applicant are completely distinguishable on facts.

In view of the above, the present application under Section 482 CrPC is devoid of merit and it is accordingly dismissed.

Order Date :- 22.1.2021

NA