Allowed

Mohan Dadsena v. State of Chhattisgarh

Chhattisgarh HC24 Jul 2024CRMP/1375/2024

Case brief

AI extract

What is this about?

Accused in a POCSO/IPC kidnapping and rape trial challenged rejection of his Section 311 CrPC application to re-examine the prosecutrix and her mother. Relying on Supreme Court precedent on fair trial, the High Court allowed re-examination, set aside the impugned order and imposed conditions on costs and adjournments.

What did the court decide?

Impugned order dated 09.05.2024 set aside; petitioner permitted to re-cross-examine the prosecutrix and her mother at his expense, subject to conditions imposed by the trial court.

Mohan Dadsena Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 1375 of 2024

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Mohan Dadsena S/o Late Shri Jai Singh Dadsena Aged About 35 Years R/o Ward No. 18, Gudi, P.S. Pithora, Police Station Pithora, Civil And Revenue District And District Mahasamund (C.G.)

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Police Station - Komakhan, District Mahasamund (C.G.)

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---- Respondent

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For Petitioner : Mr. Jameel Akhtar Lohani, Adv For State : Mr. T.S. Sahu, Panel Lawyer

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Hon'ble Shri Arvind Kumar Verma, Judge Order on Board

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25.07.2024

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With the consent of both the respective parties heard finally.

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The petitioner has filed this petition under Section 482 of Criminal Procedure Code, being aggrieved against the impugned order dated 09.05.2024 in Special Criminal Case No. H/42/2023 pending before the Second A.S.J. Mahasamund, distt. Mahasamund (C.G.) whereby an application under Section 311 of Cr.P.C. for re-examination of the prosecutrix and the mother of the prosecutrix was rejected.

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The case in nutshell is that on 17.06.2023 father of the prosecutrix named Khemraj Sinha lodged a report of missing of her minor daughter who is more than 17 years of age since 15.06.202. Upon investigation prosecutrix was found along with accused and was

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recovered from Sargaon Distt. Mugeli on 25.06.2023. thereafter, the accused was arrested and FIR was registered as crime no. 69/2023 for the offence punishable under Section 363, 366, 376(2) (I) of the Indian Penal Code and Section 4 and 6 of POCSO Act.

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Charge sheet was filed and the case is pending before the Second ASJ Mahasamund for its trial.

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Learned counsel for the petitioner contended that the prosecutrix is just about to attend the age of 18. He has been falsely implicated due to previous enmiety between the family members and they were having a lovev affair. She eloped with the petitioner on her own wish and they went to mainpat than Raipur and than at Sargaon.

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He further contended that the petitioner is a patient and is suffering from serious cronic diseases suffered from paralysis attack and is behind the bars and at the other end application filed under Section 311 of Cr.P.C. has been rejected by the Trial Court, which will cause serious injustice to the petitioner and therefore, the impugned order dated 09.05.2024 is liable to be set-aside by providing a chance to the petitioner to re-examine the prosecutrix as well as her mother.

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Per contra, learned counsel for the State opposes the prayer made by the learned counsel for the appellant and states that there is no cogent and valid reason as to why there is a need of interference on the order passed by the learned trial court.

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I have heard learned counsels for both the parties at length and perused the record with utmost circumspection.

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Prosecutrix in her deposition has clearly stated that the accused being her maternal uncle used to visit their house sometimes, in the month of may this year, she went to her uncles’s house and stayed at his house for about a month. When she stayed at her maternal uncle’s house for a month, when her maternal aunt was not at home and the family members were away, the accused used to forcefully have physical relations with her whenever he got the chance. She clarified that during her earlier statement before the Magistrate Court and while giving statement to the police, I had not told that the accused had tied her.

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Hon’ble Supreme Court in the case of Manju Devi V. State of Rajasthan reported in AIR 2019 SC 1976 has held in para 15 as under:-

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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, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be

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tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any Court", "at any stage”, or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”

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Hon’ble Supreme Court in the matter of Natasha Singh Vs. CBI (State) reported in 2013 AIR SCW 3554 has held in para 9 as under:-

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Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right.

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It is observed by the above discussion, right to cross-examination is a part of right to fair which every person has in the spirit of right to life and personal liberty. In the case in hand, the ground of reexamination is that question which is to be asked to the root of the matter but the learned trial court dismissed the application of the petitioner.

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In the result, I find some merit in this petition and accordingly, the same stands allowed only for re-examination of the mother of the prosecutrix and the prosecutrix . The learned trial court shall afford a chance to the petitioner to cross-examine the mother of the prosecutrix and the prosecutrix. The petitioner shall bear the expenses of the witnesses which would be fixed by the learned trial court. The trial court is free to impose conditions as it thinks fit. The impugned order dated 09.05.2024 is set aside.

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Needless to say, it is expected that the learned counsel for the petitioner shall not repeat any question which has already been put to the witnesses in their previous cross-examination. Further more, no adjournment will be sought by him on any ground whatsoever. It is further clarified that in case for any reason if witness is not available for the purpose of further crossexamination, her testimony shall be read in evidence as it is. With these directions, the petition stands disposed of, pending applications, if any, also stands disposed of.

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Accordingly, this petition under section 482 of Criminal Procedure Code deserves to be and is hereby allowed .

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Sd/-

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(Arvind Kumar Verma) Judge

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alfiza

Mohan Dadsena v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Mohan Dadsena v. State of Chhattisgarh

Case brief

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