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2023 DIGILAW 661 (MP)

Dilip v. State of M. P.

2023-07-17

ANIL VERMA

body2023
ORDER 1. Appellant has filed present appeal under section 14-A of SC & ST ( Prevention of Atrocities) Act, 1989 being aggrieved by impugned order dated 22.6.2023 passed by Special Judge (under SC & ST Act), Rajgarh, whereby the application filed by the appellant under section 311 of Cr.P.C for cross-examination of the prosecutrix has been dismissed. 2. Brief facts of the case are that the appellant is facing trial for the offence under sections 354, 354-A. 323 of IPC and sections 3(1)(w) (ii) and 3(2)(va) of SC & ST ( Prevention of Atrocities) Act, 1989. After filing of charge-sheet, charges were framed and the appellant was put to trial. Prosecution examined the prosecutrix (PW-1) and her husband and the case is pending for cross-examination of other prosecution witnesses. 3. The appellant filed an application under section 311 of Cr.P.C before the trial Court for summoning earlier examined proxecutrix for further effective cross-examination in respect of some photographs and pen drive filed by the appellant. After hearing both the parties, the trial Court dismissed the application vide order dated 22.6.2023, therefore, the appellant has challenged the said order before this Court by filing present appeal. 4. Learned counsel for the appellant contended that after examination of the prosecutrix, he filed certain photographs and pen drive to show intimate relationship between the appellant and the prosecutrix. Looking to the nature of the offence, these photographs and pen drive are necessary for proper adjudication of the matter pending before the trial Court, but the trial Court has ignored this fact, therefore, the appellant has been deprived from his right to defence and therefore, further cross-examination on the above point is necessary for defence of the appellant, Under these circumstances, he prays that the impugned order be set aside and the application filed under section 311 of Cr.P.C be allowed and the appellant be permitted to further cross-examine the prosecutrix on the aforesaid issue. 5. Learned counsel for the respondent/State has opposed the\ prayer made by counsel for the appellant and prays for its rejection by submitting that the impugned order passed by the trial Court is just and proper and does not call for any interference by this Court. 6. 5. Learned counsel for the respondent/State has opposed the\ prayer made by counsel for the appellant and prays for its rejection by submitting that the impugned order passed by the trial Court is just and proper and does not call for any interference by this Court. 6. From perusal of the record, it appears that the appellant is facing trial for the offence under sections 354, 354-A. 323 of IPC and sections 3(1)(w)(ii) and 3(2)(va) of SC & ST ( Prevention of Atrocities) Act, 1989, but defence of the appellant is that the appellant and the prosecutrix are neighbour and they have cordial relationship. Some photographs and pen drive have been filed after examination of the prosecutrix, therefore, no relevant question in that regard has been put up in her cross-examination. 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 judiciously and not capriciously or arbitrarily. It is not a case of lacuna but a case of providing proper and sufficient opportunity to the appellant for his defence. 7. The trial Court has passed the impugned order without application of mind and without assigning any legal and appropriate reason. Therefore, the ground of rejection of application under section 311 of Cr.P.C. is bad in law. 8. In view of the above, this Court is of the considered view that one last opportunity should be given to the appellant to further cross-examine the prosecutrix (PW-1) 9. Accordingly present appeal is allowed and the impugned order dated 22.6.2023 passed by the trial court is set aside. The trial Court is directed to recall the prosecutrix (PW-1) and afford only one opportunity to the appellant to further cross-examine the said witness. The appellant is permitted to further cross-examine the said witness subject to deposit of Rs. 2,000/- by him in District Court Legal Aid Committee, Rajgarh. A copy of this order be sent to the concerned trial court for information and necessary compliance.