Rinku Singh vs State Of Chhattisgarh
2022 Latest Caselaw 4633 Chatt

                                   1

                                                                    NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                 Criminal Revision No. 733 of 2022

     Rinku Singh, S/o Ram Ashray Singh, aged about 24 years, R/o
     Sada Qtr. Ghasidas Nagar Jamul, Police Station - Jamul, Bhilai-
     Durg, District Durg (C.G.)

                                                 ---- Applicant/Accused

                                Versus

     State of Chhattisgarh, Through: Station House Officer, Police
     Station - Jamul, Bhilai-Durg, District Durg (C.G.)..

                                                       ----Non-applicant



For Applicant             : Mr. Tarun Dansena, Adv.
For Non-applicant/State   : Ms. Madhunisha Singh, Dy. Adv. General


              Hon'ble Shri Justice N.K. Chandravanshi

                           Order On Board
21.07.2022

1.

This criminal revision has been preferred against the order dated 13.06.2022 passed by Upper Sessions Judge, First Fast Track Court, Special Judge (POCSO Act), Durg, District Durg (C.G.) (henceforth "trial Court") in Special Criminal Case (POCSO) No. 114/2018 whereby learned court below has rejected the application under Section 311 of the Code of Criminal Procedure, 1973 (henceforth "the Code") filed by the applicant for recalling of father of victim/prosecutrix, who has been examined as PW-8, for his further/ re cross-examination.

2. The applicant is facing trial before the trial Court for commission of offence punishable under Sections 450,366 & 376 of IPC and Sections 5 & 6 of the Protection of Children from Sexual Offences Act, 2012. Several prosecution witnesses have been examined and father of victim/prosecutrix has also been examined as PW-8 on 26.5.2022. On 13.6.2022, application under Section 311 of the Code was filed by the

applicant stating therein that aforesaid witness has not been examined properly, as he has been examined by the junior advocate, in absence of Senior Counsel. Hence, he may be called for his further cross- examination.

3. Learned trial Court, vide its impugned order dated 13.6.2022, dismissed the aforesaid application, hence, this revision petition.

4. Learned counsel appearing for the applicant would submit that subject special criminal case is pending against the applicant for heinous/grievous offence like kidnapping and rape, that too, of a minor girl, hence, father of the victim/prosecutrix is very much important witness in this case, particularly, in respect of age and subsequent development/event after date of alleged incident but father of the victim/prosecutrix (PW-8) has not been cross-examined properly, because on the date of his examination, original counsel of applicant/accused was not available in the court, as he was out of station on that day, hence, junior counsel cross examined him. It is further submitted that junior counsel was not having so much experience to deal with such type of heinous offences during the course of cross-examination and he has cross-examined the father of the prosecutrix only up to 10-12 lines. Even he has not controverted the statement of Jeevan Sahu (PW-8), which he has deposed in his examination-in-chief and if the same is not controverted, then it could went against the applicant, which would highly damage his defence. It is further submitted that cross-examination in respect of the fact, as has been mentioned in the application, are required to be cross- examined from aforesaid Jeevan Sahu (PW-8) for proper & justifiable defence of applicant. Despite that, learned court below without considering the aforesaid facts, has mechanically dismissed the application, hence, impugned order, being illegal and unsustainable in view of the provisions contained in Section 311 of the Code, deserves to be set aside.

5. On the other hand, learned counsel for the State heavily controverted the submissions made by learned counsel for the applicant. He submits that father of victim/prosecutrix has been cross- examined by learned defence counsel and he was afforded ample opportunity to cross-examine the witness namely Jeevan Sahu (PW-6. Deposition of Jeevan Sahu (PW-8) does not show that defence counsel was restricted by the trial Court for more cross-examination of the said witness. Thus, the applicant was afforded ample opportunity to cross-examine the aforesaid witness, therefore, only to fill up the lacuna left in cross-examination, the applicant could not be permitted to recall the aforesaid witness for his further cross-examination.

6. I have heard learned counsel appearing for the parties and perused the impugned order as well as certified copy of deposition of father of victim/prosecutrix, who has been examined as PW-8.

7. Perusal of certified copy of deposition of father of victim/prosecutrix ( PW-8) would go to show that he has been cross- examined only up to 10-12 lines by counsel of the defence. The case, which is under consideration, is a case of very heinous/grievous offence under Section 405, 366 & 376 of the IPC and Sections 5 & 6 of the POCSO Act. Considering the gravity of the offence, in fact, it is apparent that Jeevan Sahu (PW-8) has not been cross-examined properly, which seems to be fault of defence counsel, who is said to be the junior counsel, not having sufficient experience. In offences like kidnapping & rape, counsel must be very much prepared and very conscious while cross-examining the witnesses because in such type of cases, punishment is very much excessive. Of course, it is said that parties should not be suffered for the mistake of counsel but at the same time, learned counsel for the parties must also be well aware about his responsibility because relief of provisions of Section 311 of the Code could not be claimed as a matter of right and it should not be taken lightly. At the same time, it is also to be noted that the scope and object of the provision is to enable the court to determine the truth

and to render just decision after discovering all relevant facts and obtaining proper poof of such facts to arrive at just decision of the case and, therefore, power must be exercised judiciously.

8. In the matter of Rajaram Prasad Yadav v. State of Bihar & Anr.1, their Lordships of the Supreme Court has held as under :-

"4. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined......................Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution"

9. In series of the judgments, Hon'ble Supreme has reiterated that, scope and object of Section 311 of Cr.P.C. is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case, therefore, power must be exercised by applying judicial mind and not capriciously or arbitrarily. It has also been reiterated that application under Section 311 of the Cr.P.C. must not be allowed only to fill up lacuna but the same should not be rejected in every case that the same has been filed to fill-up the 1 2013 (14) SCC 461

lacuna.

10. In present case, as has been stated earlier that in such type of heinous offences, father of victim/prosecutrix has not been cross- examined properly, and his cross-examination has been completed only in 10-12 lines, whereas in POCSO cases, age of the victim/prosecutrix is very material as well as subsequent conduct of parties are also relevant for arriving at just & proper decision of the case.

11. Resultantly, impugned order dated 13.06.2022 passed by Upper Sessions Judge, First Fast Track Court, Special Judge (POCSO Act), Durg, District Durg (C.G.) in Special Criminal Case (POCSO) No. 114/2018 is set aside and the application under Section 311 of the Code filed by the applicant on 21.06.2022 is allowed with a condition that he will pay process fee for recalling of father of the victim/prosecutrix (PW-1) and also to pay travelling expenses & other requisite expenses as per law to him, with a further condition that he shall pay cost of Rs.2,000/- to the District Legal Services Authority, Durg.

12. It is made clear this order shall be subject to submission of receipt of Rs.2,000/- payable to the District Legal Services Authority, Durg before the trial Court.

13. The revision is thus allowed to the extent indicated hereinabove.

14. Needless to mention that after further cross-examination of the aforesaid witness, the prosecution be afforded opportunity for his re-examination in that regard, if required.

Sd/-

                                                             (N.K.Chandravanshi)
D/-                                                                Judge