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Madhya Pradesh High Court · body

2017 DIGILAW 1004 (MP)

Sameer Usmani v. State of M. P.

2017-09-15

RAJEEV KUMAR DUBEY

body2017
ORDER 1. This petition has been filed under section 482 of CrPC against the order dated 22.7.2017passed by 11th ASJ, Bhopal, in S.T. No.26918/2017; whereby learned ASJ rejected the applicant's application filed under section 311 of CrPC for recalling the prosecutrix for further cross-examination. 2. Brief facts of the case which are relevant to the disposal of this petition are that the applicant is facing trial in S.T. No.26918/2017 pending before 11th ASJ, Bhopal. During the trial of the case, on 20.6.2017, applicant filed an application averring that the prosecutrix in Para-5 of her statement admitted that it was true that applicant did not committed any act with her, while in her re-examination she deposed that applicant had brought her Mirinda, on drinking which she felt intoxicated . Likewise in her re-examination, she also deposed that when she got up in the morning and there were no clothes on her body at that time accused raped her again. While these facts are not mentioned in her case diary statement recorded by the police under section 161 of the CrPC and statement recorded by the JMFC under section 164 of CrPC. So applicant be permitted to further cross examine the prosecutrix on that point. 3. Learned trial Court rejected the prayer of applicant observing that that the counsel for the applicant had cross-examined the prosecutrix in detail on 15.3.2017, therefore, there was no need to recall the prosecutrix for further cross-examination. Being aggrieved by the impugned order, applicant filed this petition. Learned counsel for the applicant submitted that prosecutrix was re-examined by the prosecution after cross-examination of the prosecutrix by the applicant/accuased . wherein she deposed that applicant had brought her Mirinda, on drinking which she felt intoxicated . She also deposed that when she got up in the morning and there were no clothes on her body at that time accused raped her again. While these facts are not mentioned in her case diary statement recorded by the police under section 161 of the CrPC and statement under section 164 of CrPC recorded by the JMFC. So she needs to be re-examined on that point. Learned trial Court rejected his application without considering the aforesaid facts. It is, therefore, prayed that the applicant be permitted to further cross examine the prosecutrix regarding these facts in the interest of justice. 4. So she needs to be re-examined on that point. Learned trial Court rejected his application without considering the aforesaid facts. It is, therefore, prayed that the applicant be permitted to further cross examine the prosecutrix regarding these facts in the interest of justice. 4. Learned counsel for the respondent/State opposed the prayer and submitted that the application has been filed by the applicant only to harass the prosecutrix. Learned trial Court did not committed any error in rejecting his application 5. This Court has gone through the record and arguments put forth by learned counsel for the parties. Although on 15.3.2017 counsel for the applicant had cross-examined the prosecutrix in detail . But it also appears from the record that after cross examination of the prosecutrix by the applicant/accused prosecutrix was re-examined by the prosecution regarding which the applicant could not cross-examine her. So in the interest of justice the petition is allowed and trial Court is directed to recall the prosecutrix for further cross-examination and give opportunity to the accused to confront the prosecutrix with her previous statements as recorded by the police under section 161 of the CrPC and statement under section 164 of CrPC recorded by the JMFC only on the point mentioned in the para 3 and 4 of the application filled by the applicant under section 311 CrPC Prosecutrix expenditure will be borne by the accused/applicant. It is also made clear that if applicant fails to cross examine the prosecutrix, on the date fixed for the same by the trial Court,without any sufficient cause, learned trial Court is free to pass an appropriate order in this regard.