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2013 DIGILAW 582 (RAJ)

Shubhkaran v. State of Rajasthan

2013-03-18

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant revision has been filed by the petitioners challenging the order dated 15.12.2011 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bikaner whereby the application filed by the prosecution under Section 319 of Cr.P.C. has been accepted and the petitioners have been directed to be summoned as additional accused in this case for facing trial for offences under Sections 366 and 376(2)(a) of the IPC. 2. Learned counsel for the petitioners contends that in this case the prosecutrix is a major girl aged 22 years. She eloped with Dharma Ram on 14.2.2010. Thereafter, she was recovered on 19.3.2010 and during this period, she voluntarily married Dharma Ram and thereafter travelled with him to different places viz. Bombay, Poona, Calcutta etc. During this period, she never made any objection and did not raise any hue and cry regarding her having been forcibly taken away. In her statement recorded by the Investigating Officer on 19.3.2010 she has admitted consensual relations with Dharma Ram. Learned counsel submits that the Investigating Officer recorded statements of various other witnesses including the Compounder and the Doctor, who treated the prosecutrix for the injuries received by her in an accident and before all of them, the prosecutrix disclosed herself to be the wife of Dharma Ram. He submits that statement of one Asha Ram in whose house, the prosecutrix and Dharma Ram stayed has also been recorded during investigation and he has specifically stated that the girl revealed that she was wife of Dharma Ram. Learned counsel thus submits that the implication of the present petitioners in this case as additional accused is absolutely illegal. He further submits that the prosecutrix has been cross-examined in extenso in relation to the facts narrated above and therein she has made certain admissions, which if examined in their entirity would clearly show that the accused have been falsely implicated in this case. Learned counsel contends that the trial Court whilst considering the application filed by the prosecution has not taken into consideration the said portion of the relevant evidence and has specifically held that the cross-examination of the witness cannot be considered at the time when the application under Section 319 Cr.P.C. is being decided. Learned counsel thus submits that the order passed by the learned trial Court deserves to be quashed. Learned counsel thus submits that the order passed by the learned trial Court deserves to be quashed. He has particularly referred to para 27 of the trial court's order in this regard, wherein the trial Court has held that cross-examination conducted on behalf of the co-accused cannot be considered at the stage when the application under Section 319 of the Cr.P.C. is being considered. 3. Per contra, learned Public Prosecutor and learned counsel for the respondent No. 2 complainant have vehemently opposed the submissions advanced by the learned counsel for the petitioners. They submit that at the stage of Section 319 of the Cr.P.C., the Court is only required to consider the examination in chief of the witness recorded before the trial Court and nothing beyond that. They therefore, pray that no interference is called for in the order impugned. 4. Heard and considered the arguments advanced at the bar and perused the order impuned and the material placed on record. 5. The short question on which the revision can be decided is as to whether the trial Court was justified in excluding the cross-examination of the prosecutrix from consideration when the application under Section 319 of the Cr.P.C. was being decided. 6. In the opinion of this Court, the term 'evidence' as referred to in Section 319 Cr.P.C. includes each and every portion of the evidence, which has been deposed by the witness before the trial Court. Therefore, the view taken by the learned trial Court that the cross-examination conducted on behalf of the defence cannot be considered at the stage of the application under Section 319 Cr.P.C. does not appear to be justified. The Hon'ble Apex Court in the case of Kailash v. State of Rajasthan & Anr. reported in AIR 2008 SC 1564 considered the fact that if the witness improves from his version given to the Investigating Officer while deposing in the Court, these improvements cannot be used for summoning the additional accused under Section 319 of the Cr.P.C. This improvement in the testimony of the witness can obviously be brought on record by confronting the witness in reference to his earlier statements. The inference which can be drawn from the said observations of the Hon'ble Apex Court would be that in cases, where the witness has been cross examined prior to the application under Section 319 Cr.P.C. being considered then the entire statement has to be considered when the application under Section 319 of the Cr.P.C. is being decided. Therefore, the order passed by the learned trial Court in this case suffers from the patent illegality that is to say that the cross-examination of the witness has been illegally and unjustly excluded from the ambit of consideration while deciding the application under Section 319 of the Cr.P.C.Resultantly, the revision succeeds and is allowed. The order dated 15.12.2011 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bikaner is quashed and the learned trial Court is directed to reconsider and decide afresh the application filed by the prosecution under Section 319 of the Cr.P.C. in light of the observations made herein-above.Revision allowed. *******