Hon. S.C. Agarwal, J This revision under Section 397/401 Cr.P.C. is directed against the order dated 6.9.2010 passed by Addl. Sessions Judge, Court No. 8, Bulandshahar in S.T. No. 816 of 2009, State Vs. Raghvendra & others, under Section 363,366, 376 and 506 IPC, P.S. Dibai, District- Bulandshahar, whereby the application 102-A under Section 311 Cr.P.C. filed by the revisionist Raghvendra Singh @ Babua was dismissed.
Heard Sri C.K. Bhardwaj, learned counsel for the revisionist, learned AGA for the State and perused the material available on record.
Revisionist is one of the accused in the aforesaid session trial. The allegations against him are kidnapping and rape of the prosecutrix (daughter of the complainant Roshan Singh). The incident took place on 6.2.2009 at 6 a.m.. It was alleged that the revisionist took away the prosecutrix from the house of the complaint with the promise of marriage. The prosecutrix was recovered after four days on 10.2.2009. During trial, the prosecutrix was examined as P.W.-2 on 8.12.2009 and was cross-examined by the defence. On 23.8.2010, an application was moved by the prosecutrix before learned Sessions Judge stating therein that a false report regarding her kidnapping was lodged. She was not kidnapped by any person nor raped against her own will. Her father and maternal grand-father pressurized her to give false statement under Section 164 Cr.P.C. and they wanted her to marry with a boy, who was not to her liking. She is repentant and wants to correct the mistake committed by her and therefore her statement be recorded again. Affidavit of the prosecutrix was also filed in support of the said application. Again an application was moved by the prosecutrix on 26.8.2010 stating therein that she wanted to testify again, as her father and maternal grand-father are pressurizing her to recall her application dated 23.8.2010. She further stated that her father and maternal grand-father might murder her by way of honour killing and therefore she be protected and her statement be recorded that very day. This application was rejected by learned Addl. Sessions Judge vide order dated 26.8.2010 on the ground that the prosecutrix was not summoned by the court to appear as a witness and she had come to the court alongwith her father. She had already been examined as P.W-2. There was no occasion to re-examine her or to provide any security.
An application was also moved on behalf of the revisionist for summoning the prosecutrix for further cross-examination on the ground that her earlier statement was given under pressure. This application was rejected by learned Addl. Sessions Judge by impugned order dated 6.9.2010 on the ground that P.W.-2 had been thoroughly cross-examined. The evidence of the prosecution has been completed. The statement of accused under Section 313 Cr.P.C. is to be recorded and at this stage there was no sufficient ground for summoning the prosecutrix for further cross-examination. Aggrieved by the said order, this revision has been filed.
Learned counsel for the revisionist submitted that the prosecutrix, through her affidavit and application has made it amply clear that her earlier statement recorded on 8.12.2009 was given by her under pressure of her father and maternal grand-father (Nana) and she had further expressed her desire to bring correct facts before the court and therefore she should have been summoned to clarify the true facts and learned Sessions Judge was not justified in rejecting the application under Section 311 Cr.P.C.
On the other hand, learned AGA submitted that the statement of the prosecutrix was earlier recorded on 8.12.2009 and at that time she was thoroughly cross-examined by the defence and there was no sufficient ground to summon P.W.-2 again further cross-examination. It was further submitted that the defence now wants the prosecutrix to turn hostile and for this purposes, the application under Section 311 Cr.P.C. was filed.
I have gone through the statement of P.W.-2 recorded earlier. There is sufficient material on the record to show that prima-facie she was a consenting party. Though in her statement under Section 164 Cr.P.C., the prosecutrix deposed against the revisionist, in her statement on oath recorded during trial, during examination-in-chief also she deposed against the revisionist but in cross-examination certain facts have come to light, which show that she was in love with the revisionist. She admitted that Suryakant had come to her house to call her stating that Raghvendra was calling her and she went with Suryakant but did not disclose this fact to her family members that she was going to meet Raghvendra. She roamed for 3-4 days with the revisionist but did not try to flee or to raise any alarm, though she claimed that from time to time she was made to smell some intoxicating material. She was also confronted with the love letters written by her to the revisionist and she admitted to writing such letters. On page 9 of the statement of P.W.-2, she admitted that she had written in a letter "I love you Babua" and "Babua and Anuradha". She admitted that Babua is the name of the accused Raghvendra. She also admitted that she started the letter with the words ''Priya Babuaji (dear Babua) I love you'. She has also written in the letter to the revisionist that when you love me, what is the hitch in marriage. She further promised in the letter that she would always be with him birth to birth. She further admitted that in her letter, she had written that her brother wanted to marry her elsewhere but she would not marry anyone else even if she had to die. She further admits that in a different letter she had written that her family members were prepared to kill her.
The above admissions clearly indicated about the love affair between the prosecutrix and the revisionist and these facts also indicate that she might have deposed earlier under pressure of her family members. Now the prosecutrix has shown her willingness to depose true facts before the Court and there is no reason that why her statement cannot be recorded by the court. It is duty of the trial court to bring true facts before the court so that justice should not be denied on the ground of mere technicalities. In this view of the matter, the impugned order cannot be sustained and is liable to be set aside.
The revision is allowed. Impugned order dated 6.9.2010 passed by the Addl. Sessions Judge rejecting the application under Section 311 Cr.P.C. is set aside. The application under Section 311 Cr.P.C. filed by the revisionist is allowed. Learned trial Judge is directed to recall P.W.-2 for further cross-examination for the purposes of bringing true facts before the court.
3.1.2011 KU/