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2004 DIGILAW 100 (ORI)

PRANAB KISHORE MUDULI v. STATE OF ORISSA

2004-02-20

L.MOHAPATRA

body2004
L. MOHAPATRA, J. ( 1 ) THIS revision is directed against the order dated 30-10-2003 passed by the learned Asstt. Sessions Judge-cum-C. J. M. , nayagarh in S. T. Case No. 64/218 of 2002 rejecting the petition filed by the petitioners for recalling the P. Ws. 1 and 2 for further cross-examination. ( 2 ) THE petitioners are facing trial for commission of offences under Sections 366/376 of the Indian Penal Code. Case of the prosecution is that the victim-informant is a friend of petitioner No. 2. On 28-1-2000 she was called by the petitioner No. 2 to visit her elder sister's house. It is alleged that the victim along with petitioner No. 2 went to Bolgarh in a motor cycle driven by petitioner no. 1. At Bolgarh they remained in the house of a lawyer where from the petitioner no. 2 returned to Daspalla. When the victim-informant wanted to return to Daspalla along with petitioner No. 2, petitioner no. 1 did not allow her to go and in that night committed rape on her. The victim further alleged that she had to remain with the petitioner No. 1 for about three months and subsequently on 14-4-2000 on seeing her elder brother she escaped from that place. It further appears that after charges were framed, trial commenced and five witnesses have been examined on behalf of the prosecution. At that stage a petition was filed by the petitioners to recall the P. Ws. 1 and 2 for further cross-examination on some material particulars. Said petition having been rejected in the impugned order, this revision has been filed. From the order of the learned Asstt. Sessions Judge it appears that the petition was rejected on the ground that the witnesses have already been exhaustively cross-examined and there was no need for further cross-examination. ( 3 ) A copy of the petition to recall the aforesaid witnesses filed before the trial court has been annexed as Annexure 2. It is stated in the petition that P. W. 1 was not cross-examined on material points like location, spot, manner of leaving, details of marriage held and the fact of victim leaving with her brother. ( 3 ) A copy of the petition to recall the aforesaid witnesses filed before the trial court has been annexed as Annexure 2. It is stated in the petition that P. W. 1 was not cross-examined on material points like location, spot, manner of leaving, details of marriage held and the fact of victim leaving with her brother. Similarly, P. W. 2 was also sought to be recalled for cross-examination in respect of materials, such as spot, manner of leaving, co-habitation, marriage at temple, movement from Bolgarh to different places, ornaments and sarees used by her, injury sustained by her as well as contradictions. Deposition of these two witnesses have been filed before the Court for perusal. So far as petitioner No. 1 is concerned, it appears that he is the owner of the house where petitioner No. 1 and the victim stayed. In cross-examination-in-chief he has stated that one day in the year 2000 accused pranab came to his house with his two friends and the informant Samita told him that she is the wife of accused Pranab and wanted a house on rent. Thereafter he let his house to them where both lived as spouses. Later on he came to know that they had been to Puri to get their marriage registered. This witness has further stated that both of them stayed for some days in his house on rent and later he heard Samita's brother traced them out and took them back. So far as this witness is concerned, it appears that he is the owner of the house where the petitioner No. 1 and the victim stayed together for sometime. This witness stays at Bolgarh and the offence of kidnapping took place at Daspalla. Therefore, this witness can never say as to how the victim and the petitioner No. 1 left the place or how marriage took place, etc. So far as the fact of rescuing the victim is concerned, this witness has already stated in his examina-tion-in-chief that he had heard that Samita's brother traced them out and took them back. I, therefore, do not find any reason for recalling the witness for further cross-examination. So far as the fact of rescuing the victim is concerned, this witness has already stated in his examina-tion-in-chief that he had heard that Samita's brother traced them out and took them back. I, therefore, do not find any reason for recalling the witness for further cross-examination. ( 4 ) SO far as the victim-P. W. 2 is concerned, it is stated in the petition that she is required to be further cross-examination on the following points (1) location, (2) spot, (3) co-habitation, (4) marriage at temple, (5) movement from Bolgarh to different places, (6) ornaments and sarees used by her, (7) injury sustained by her and contradictions. So far as spot is concerned, it is not known what is meant by spot but from cross-examination of the victim it appears that questions have been put to her in this regard. In para 13 of cross-examination, she has stated that he had accompanied petitioner no. 2 for going to her elder sister's house but did not inform her parents nor obtained their permission since she was asked to go for two hours. In para 14 she has also stated that she left along with petitioner no. 2 at 11/11. 30 a. m. In para 16 she has stated that after one and half hours she reached Nayagarh and thereafter at bolgarh stayed in the house of an advocate. In her cross-examination she has stated that in the house of an advocate at Bolgarh she had been kept. I, therefore, do not find any reason for further cross-examination of the witness with regard to place of leaving or place of stay. Now coming to the second question with regard to the manner of leaving the house, in cross-examination this witness in para 13 has narrated about her departure from parental house and in para 14 she has stated that she had left along with both the petitioners with a vanity bag and educational documents marked as Exts. A to F and horoscope chart. Therefore, there is also no reason for recalling the said witness for further cross-examination on that point. Coming to the third question regarding co-habitation, P. W. 2 in cross-examination in para 18 has stated that she shouted for help protesting against petitioner No. 1 and hearing shout Prafulla Senapati and his wife came. A to F and horoscope chart. Therefore, there is also no reason for recalling the said witness for further cross-examination on that point. Coming to the third question regarding co-habitation, P. W. 2 in cross-examination in para 18 has stated that she shouted for help protesting against petitioner No. 1 and hearing shout Prafulla Senapati and his wife came. She has stated that in the night she was forcibly raped and there was none except the accused and she was kept inside the house and was not allowed to go out. In para 19 she has also stated that offence of rape continued for about 20 to 25 minutes. I, therefore, do not find any reason for recalling the witness for further cross-examination on the above ground. Now coming to the fourth question with regard to marriage in temple, deposition of this witness in cross-examination in para 20 be looked into. She has stated that she cannot say if at Puri accused and she herself had sworn an affidavit each for registration. She has denied the suggestion that on 3-3-2000 she made an application to marriage registration officer, Purl giving her photograph, certificates. She has also denied the suggestion that she obtained age certificate from Puri hospital and filed it with her application in the office of the marriage officer. In para 21 she has also stated about the alleged marriage in the temple. Therefore, there is no reason for recalling the witness for cross-examination on the aforesaid point. Coming to the fifth question with regard to movement from Bolgarh to different places, the victim in her cross-examination has answered the question with regard to her movement from Bolgarh to Puri in paragraphs 20, 21 and 22 of cross-examination. So far as sixth question with regard to ornaments and sarees used by the victim are concerned, she has specifically stated in para 14 of cross-examination that she had left the house with the petitioners with a vanity bag, educational documents and horoscope. She has denied suggestion that she had gone with a bag taking clothes. Therefore, there is no necessity to cross-examine the witness any further on this point. She has denied suggestion that she had gone with a bag taking clothes. Therefore, there is no necessity to cross-examine the witness any further on this point. So far as last point with regard to injuries sustained by her and contradictions are concerned, in para 19 of cross-examination she has stated that she had scratches on elbow during rape and she does not remember whether there were other injuries. She has also stated in para 19 that she had some bleeding from her private pats besides wound on cheek and that clothes were stained with blood and she was putting salwar and panjabi. I, therefore, do not find any reason for recalling the witnesses any further for cross-examination on any of the points mentioned in the petition. ( 5 ) LEARNED counsel for the petitioner had cited some decisions to show that the petition for recalling a particular witness for further cross-examination or re-examination can be entertained at any stage and should not be rejected only on ground of delay. One of such decision is the case of Niranjan v. C. J. M. , Cuttack, reported in (2000) 89 Cut lt 420 and other decision cited before this Court is the case of pradip Kumar Agarwal v. State, reported in (1994) 78 Cut LT 962. There is no dispute about the proposition of law that this Court has wide power under i Section 311, Cr. P. C. to recall witnesses for re-examination or further cross-examimtion if it is necessary in the interest of justice, but same has to be taken into consideration on facts and circumstances of each case. So far as the present case is concerned as discussed earlier, there is no need for further examination of P. W. 1 on the point raised as he has admittedly no knowledge. So far as petitioner No. 2 is concerned as discussed earlier, all relevant questions pertaining to points raised have already been asked exhaustively to the said witness and there is no reason for recalling her for further cross-examination on the self-same points again. ( 6 ) I, therefore, decline to interfere with the impugned order and the revision is accordingly dismissed. Revision dismissed.