DARSHAN LAL Vs. STATE OF J&K
HIGH COURT OF JAMMU AND KASHMIR
STATE OF JANDK
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(1.) THIS petition is directed against the order dated 30 -11 -1998 passed by the Sessions Judge, Jammu rejecting the application filed u/s 540 Cr.
P.C. for re -examination of the prosecutrix Miss Shindi Devi. The facts of
the case are these. A case u/s 376 RPC was registered in Police Station
Bishna against the petitioner on the written report of Mst. Dharmo Devi
maternal grandmother of the prosecutrix. After investigations the police
found that the allegation of rape against the petitioner was
substantiated. He was accordingly sent up for trial. The charge u/s 376
RPC was framed against him on 30 -05 -1996 to which he pleaded not guilty.
Statement of Mst. Shindi Devi, the prosecutrix was recorded by the court
on 12 -08 -1996. An application for her re -examination was moved on behalf
of the petitioner on 07 -05 -1997. The learned Sessions Judge dismissed the
application by his order dated 07 -07 -1997. After the statements of all
the witnesses were recorded, a fresh application to recall the
prosecutrix for her re -examination was filed on 18 -11 -1998 on the ground
that she was suffering from Schizophrenia and was not capable of
understanding the meaning of what is stated in the court when examined as
a prosecution witness. The learned trail court dismissed the application
on the ground that the statement made by the prosecutrix is not
indicative that she was unable to understand the question.
(2.) THE order has been assailed on the ground that the prosecutrix was before and at the time of occurrence suffering from Schizophrenia and
continues to suffer from the same disease till date. So if this fact is
not put to her in the cross -examination, it may result in miscarriage of
justice, for her examination by the Board of Doctors to find out her
mental condition is also necessary to rule out the possibility that her
statement was not the product of external influence.
(3.) THE contention of Mr. JP Singh, learned counsel for the petitioner is that since the petitioner was denied bail there was no
effective communication between him and his counsel which hampered the
cross -examination of the prosecutrix. Failure to cross -examine her with
regard to the treatment she got form Psychiatric Hospital, Jammu in the
peculiar circumstances of the case was neither inadvertent nor
deliberate, but only due to the absence of proper brief about the real
facts. Since there is documentary support that she was getting the
treatment from the Psychiatric, application for re -examination is neither
an afterthought nor an attempt to delay or defeat the final outcome of
the trial. The summoning of the prosecutrix for re -cross -examination
occurring to Mr. Singh is necessary for the just decision of the case.
The application has been opposed on behalf of the prosecution firstly on the ground that no revision lies against the order refusing to
summon the witness and secondly no case is made out for exercising
inherent jurisdiction of the court u/s 561 -A Cr P.C. because the order
refusing to summon the witness is neither manifestly nor amounts to an
abuse of the process of the court.;
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