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2019 DIGILAW 2347 (ALL)

Santosh Gautam @ Santosh v. State Of U. P.

2019-10-17

RAJESH SINGH CHAUHAN

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JUDGMENT : Rajesh Singh Chauhan, J. Heard Sri Pravin Kumar Singh, learned counsel for the applicant and learned AGA. 2. In view of the proposed order notice to opposite party no. 2 is hereby dispensed with. 3. By means of this petition under section 482 Cr.P.C. the petitioner has assailed the order dated 21.6.2019 passed in Session Trial No. 533/2017 arising out of Crime No. 0215/2016 u/s 452, 354, 323, 376(1), 506 IPC, P.S. Sangram Garh, District Pratapgarh passed by Addl. Sessions Judge, F.T.C., District Pratapgarh whereby the application of the present applicant / informant of the F.I.R. for re-examination of the prosecutrix /P.W.-2 has been rejected. 4. Precisely the submission of learned counsel for the applicant is that in the F.I.R. specific allegation of rape was alleged, in the statement under section 161-Cr.P.C. and 164 Cr.P.C. the prosecutrix has categorically submitted that the rape was committed by the opposite party no. 2. In the chief-examination she has again submitted that rape was committed with her but during the course of cross-examination the prosecutrix could not understand the question of the counsel for the defence, therefore, she could not reply the correct answer. The words which the prosecutrix could not understand has been indicated in the impugned order dated 21.6.2019 and in view of the fact that the prosecutrix was not a literate lady and there is every likelihood that those terminology of the question she could not understand. 5. Be that as it may, since the entire prosecution story mainly based on the testimony of the prosecutrix and this is a case wherein the offence of rape is alleged to have been committed, therefore, if in any case the prosecutrix could not understand the typical language of the question, the application for ex-examination should not be turned down. Since the factum of guilt is proved beyond all reasonable doubt and if the prosecutrix has continuously narrated the same story right from the statement under section 161 Cr.P.C. to the chief examination, at least the application for re-examination should be allowed so that the trial court concerned could arrive at appropriate conclusion. Rejecting the application for re-examination of the prosecutrix does not fulfil any purpose rather if she is permitted to be? re-examined and cross-examined it would serve the purpose. Rejecting the application for re-examination of the prosecutrix does not fulfil any purpose rather if she is permitted to be? re-examined and cross-examined it would serve the purpose. It should be the endeavour of the learned trial court concerned to arrive at the logical and appropriate conclusion more particularly in the present case wherein the prosecutrix is a victim of rape and she is praying for re-examination. The learned trial court is vested with this power under section 311 Cr.P.C. and this provision may be invoked in a peculiar circumstance. 6. Therefore, considering the peculiar facts and circumstances of the issue in question and also in the ends of justice I find that the order dated 21.6.2019 passed by the Additional Sessions Judge/F.T.C., Pratapgarh in S.T. No. 533/2017 is unwarranted and uncalled for, hence the same is liable to be set aside. 7. Accordingly, the order dated 21.6.2019 passed by Additional Sessions Judge/F.T.C. Pratapgarh in S.T. No. 533/2017 is set aside. 8. Learned trial court is directed to permit the victim of the case to be re-examined strictly in terms of section 138 of the Indian Evidence Act, 1872 in the aforesaid case with expedition. 9. In view of the above the present petition is allowed.