Allahabad High Court
Rajni Devi vs State Of U.P. And Another on 15 November, 2022
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 86 Case :- APPLICATION U/S 482 No. - 32260 of 2022 Applicant :- Rajni Devi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ankit Singh Counsel for Opposite Party :- G.A. Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
Notices to opposite party No. 2 are dispensed with.
By this petition the applicant has prayed for the following reliefs:
"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to quash impugned order dated 02- 09-2022 passed by court of Addl. Sessions Judge/FTC Court no.1 (Crime Against Women) Ramabai Nagar (Kanpur Dehat) in Sessions Trial no. 1504 of 2020 State of U.P. vs Anuj in Case Crime No. 332 of 2020, U/s 376 IPC, P.S. Bhognipur, District Kanpur Dehat and direct the trial court to recall witness Pw-1 (Rajni Devi) in Sessions Trial no. 1504 of 2020 in Case Crime No. 332 of 2020, U/s 376 IPC, P.S. Bhognipur, District Kanpur Dehat.
It is further prayed that this Hon'ble Court may also be pleased to stay the effect and operation of impugned order dated 02-09-2022 as well as further proceeding in Sessions Trial no. 1504 of 2020 State of U.P. vs Anuj in Case Crime No. 332 of 2020, U/s 376 IPC, P.S. Bhognipur, District Kanpur Dehat, during the pendency of instant application before this Hon'ble Court, otherwise the applicant shall suffer an irreparable loss."
The brief facts are that the marriage of the prosecutrix was fixed with accused-Anuj and on 09.05.2019, Varaksha cermony that is a pre-wedding ritual, was performed at the house of the accused-Anuj in presence of witnesses/family members and some gifts in the shape of cash, gold ring as well as clothes, were given to the accused by the family of the prosecutrix. The varaksha was performed immediately after the accused was selected as Sub Inspector in the Uttar Pradesh Police. After Varaksha, on 22.06.2019, the accused left for Moradabad for training, however, in January 2020, after completing his training the accused refused to marry her. During this period, both the prosecutrix as well as the accused came into contact with each other and the prosecutrix shifted to Jhansi to pursue Nursing Course. The accused often came to her place and forcibly raped her and she tolerated only due to reason that she was promised by accused and his family members that both of them will be married. After refusal by the accused, an F.I.R. came to be lodged vide Case Crime No. 332/2020 under Section 376, Police Station Bhognipur, District Kanpur Dehat at 12:30 p.m. on 11.07.2020. The statements of the prosecutrix under Sections 161 and 164 Cr.P.C., were recorded. In the statement under Section 164 Cr.P.C. apart from repeating the prosecution story in the F.I.R., the prosecutrix has also levelled the allegation of demand of Rs.30,00,000/- by the accused and his father and also allegation of demand of two bighas agricultural land from her family. After completing the investigation charge sheet was filed and consequently cognizance was taken and charges were framed by the Sessions Court on 27.01.2021. On 10.02.2021, the prosecutrix was examined as P.W.-1. The examination in chief took place on 10.02.2021. She was also cross-examined on the same day. The cross examination concluded on 19.02.2021.
The application under Section 138 of the Evidence Act read with Section 311 Cr.P.C. dated 20.08.2022, which is on record, has been moved by the prosecution to recall and re-examine the prosecutrix and place the additional evidence including photographs of the prosecutrix with the accused regarding intimate relationship between them. Learned trial court after hearing the parties dismissed the application vide order dated 02.09.2022. The application was dismissed after considering the argument of parties as well as the relevant law, vide a detailed order. The relevant part of the order passed by the trial court, which is impugned before this Court is extracted hereinbelow:
"In the present case, the person sought to be re-examined by the prosecution witness is the prosecutrix. I have gone through her written complaint, her statement recorded U/s, 161 Cr.P.C., her statement recorded U/s. 164 Cr.P.C., her statement in chief and her cross examination, She has not spoken a word about any photographs of her with the accused Anuj being clicked anywhere. She has also not spoken in any of her statements that she was in possession of the photographs and she had tried to hand over the same to investigating officer during the course of investigation but the investigating officer did not collect and include them in chargesheet. There is absolutely no ambiguity in the statement of the prosecutrix and no new fact had emerged in her cross-examination on behalf of the accused, which inter alia requires explanation in the re-examination of the prosecutrix. The alleged photographs must have been be in the possession of the prosecutrix on the day when she had gone to the police station and had got recorded the F.1.R. of the instant case. What prevented the prosecutrix from filing photographs along with her complaint when she got recorded the F.I.R. at the police station against the accused.
In Rajaram Prasad Yadav Vs. State of Bihar-AIR 2013 SC 3081 Hon'ble Supreme Court has held that "The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice."
In Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, Hon'ble Apex Court had held as under:
"10. It needs hardly any emphasis that the discretionary powers like those Under Section 311 Code of Criminal Procedure are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 Code of Criminal Procedure and amplitude of the powers of the court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBI, (2013) 5 SCC 741, though the application for examination of witnesses was filed by the Accused but, on the principles relating to the exercise of powers Under Section 311, this Court observed, inter alia, as under:
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15. The scope and object of the provision 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. Power must be exercised Judicious and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application Under Section 311 Code of Criminal Procedure must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the Accused, or to cause serious prejudice to the defence of the Accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred Under Section 311 Code of Criminal Procedure must therefore, be invoked by the coun only in order to meet the ends of justice, for strong, and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any count", at any stage", or "or any enquiry, trial or other proceedings. "any person" and "any such person" clearly spells out that the provisions of this Section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."
In view of the above discussion and settled legal position, in my considered view the recalling and re-examining the prosecutrix is not necessary and essential to the just decision of the case in hand. The applications 23 Ka is devoid of merits and deserve to be dismissed, the same is accordingly dismissed.
Nothing observed herein above, would effect, in any manner, on merits of the case during trial, as the same has been so recorded for the limited purpose of deciding the present application only.
Put up for remaining evidence on 17.09.2022.
Order signed, dated and pronounced by me in the open Court today."
A perusal of the application filed by the prosecution for recalling and re-examining the prosecutrix, shows that it is pertaining to various photographs as well as the mobile phones, which has been filed by the prosecutrix before the learned trial court for the first time along with the application under Section 138 Evidence Act read with Section 311 Cr.P.C. Learned trial court while deciding the application has dealt it in detail. The fact that the prosecutrix all throughout remained silent about any of her photographs with the accused Anuj. It is also not in dispute that the prosecutrix had remained in possession of the said photographs as well as the mobile phones. The statement of the prosecutrix also appears to be unambiguous. Upon a query put by the Court to the learned counsel appearing for the applicant as to what prevented the prosecutrix from filing the photographs in the complaint before the trial court; while giving statement under Section 164 Cr.P.C., while being examined in chief as well as during cross examination in February 2020, learned counsel for the applicant could not give any plausible explanation for withholding such photographs for such long time. A perusal of the application given by the prosecution under Section 138 Evidence Act read with Section 311 Cr.P.C. shows that there is no explanation for delay of more than one and half years in filing the application under Section 138 Evidence Act read with Section 311 Cr.P.C.
The law regarding summoning, recalling of the witnesses has been settled by the Supreme Court. The prosecution witnesses cannot be recalled only to fill up the lacuna in prosecution case. The explanation for delay in filing the application under Section 138 Evidence Act read with Section 311 Cr.P.C. has also been held to be very vital and failing to give any explanation while giving such an application has been held a sufficient ground for dismissing/refusing to entertain the application under Section 138 Evidence Act read with Section 311 Cr.P.C. The learned trial court, in my opinion, after considering the case of the prosecution as well as the various statements/submissions has rightly declined to entertain the application under Section 311 Cr.P.C. filed by the prosecution and has accordingly dismissed it. I find no illegality in the order impugned.
The application under Section 138 Evidence Act read with Section 311 Cr.P.C. filed by the prosecution envisages no explanation for delay of more than one and half years in filing the application. Therefore, in view of the law laid down by the Supreme Court in the case of Ramlal Jat Vs. State of Rajasthan and Another [Criminal Misc. Petition No. 5572 of 2015, decided on 04.11.2015], the application given by the prosecution in this case under Section 311 Cr.P.C. is liable to be dismissed on this ground alone.
The application/petition is dismissed.
Order Date :- 15.11.2022 Arun K. Singh