RAJESH SAHARAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This misc. petition has been filed under Section 482 Cr.P.C. by the petitioner Rajesh Saharan against the order dated 23.12.2011 passed by Additional Sessions Judge Fast Track No. 1 Jaipur Metropolitan Jaipur in Sessions Case No, 9 of 2008 whereby the application of the petitioner under Section 313 Cr.P.C. was rejected. The accused petitioner Rajesh Saharan is facing a trial in criminal case arising out of FIR No. 78/1997 registered at Police Station Mahila, Jaipur for the offence under Secs. 366, 342, 376(2)(g) and Sec. 120B IPC, During pendency of the investigation certain accused persons were arrested and charge sheet was submitted. The investigation against the present accused petitioner and certain other accused was kept pending under Sec. 173(8) Cr.P.C., It is stated in the petition that during the absence of the accused petitioner trial of other accused persons against whom charge sheet was submitted was started and on 27.11.1999 statement of prosecutrix Pragati Vyas was recorded. It is further stated that at that time the accused petitioner was not present as charge sheet was filed against him later on. During the year 2005 charge sheet was filed against the petitioner and charges were framed against him on 19.8.2006. Since prosecutrix did not appear before the trial court for statement the evidence of the prosecutrix was closed which was subsequently challenged before this court and thereafter the stay application was also dismissed and the said order was challenged before the Apex Court and the Apex Court vide order dated 9.9.2011 allowed the application and gave an opportunity to get statements of the prosecutrix and other evidence to be led by prosecutrix before the court below. Thereafter statements of prosecutrix and other witnesses were recorded by the court below on 21.9.2011. The accused petitioner moved an application before the trial Court on 16.12.2011 that he was subjected to statements under Section 313 Cr.P.C. and in those statement things which have never been spoken by the prosecutrix in his presence are being put to the accused as statements which were recorded on 27.11.1999 which were recorded in his absence. After hearing arguments of both the sides the trial Court rejected the application of the accused petitioner vide order dated 23.12.2011. Thereafter the statement of the accused petitioner under Section 313 Cr.P.C. was recorded on 3.1.2012. Now this criminal misc. petition has been filed challenging the order of the trial Court dated 23.12.2011 rejecting the application of the accused petitioner under Section 313 Cr.P.C.

(2.) Mr. Pradeep Chaudhary, learned counsel appearing for the petitioner has argued that the trial Court failed to consider this aspect of the matter that as per section 273 Cr.P.C. the evidence of the prosecutrix against the accused petitioner can only be led in his presence and it has to be recorded in his presence. It is further argued that on 27.11.1999 when the statement of prosecutrix was recorded the accused petitioner was no where in picture. Only incriminating articles which were legally proved against the accused can be put in statements under Section 313 Cr.P.C. In support of his contention reliance has been placed on Naval Kishore vs. State of Bihar, 2004 CrLJ 4252, M/s. Artee Minerals and others vs. State of Rajasthan, 1988 2 Crimes 322, Ramvilas and others vs. State of Madhya Pradesh, 1985 CrLJ 1773, Gurtej Singh and others vs. State of Punjab, 2011 1 Crimes(P&H) 369, Avtar Singh and others vs. State of Punjab, 2002 CrLJ 4330, Ranvir Yadav vs. State of Bihar, 2009 CrLJ 2962 and Ram Shankar Rai vs. State of Bihar, 1975 CrLJ 1402).

(3.) Mr. R.P. Singh, Additional Advocate General appearing for the State opposed the arguments of the learned counsel for the petitioner. It has been argued that the trial court rightly rejected the application of the accused petitioner under Section 313 Cr.P.C. The statement of Pragati Vyas was recorded in the presence of the accused petitioner and the accused petitioner and his counsel were given the opportunity to cross examine the prosecutrix even on his earlier statement before the court recorded on 27.11.1999. If the counsel of the accused petitioner or the accused himself in whose presence the statement of the prosecutrix was recorded on various dates i.e. 27.9.2011, 30.9.2011, 1.10.2011 have not put any question or not cross examined the prosecutrix, they cannot be permitted to file an application that the statement of the prosecutrix recorded earlier in their absence in the court on 27.11.1999 should not be taken into consideration. It is further submitted that even the accused petitioner has himself given his written statement under Section 313(5) Cr.P.C. Reliance has been placed on Central Bureau of Investigation vs. Abu Salem Ansari and another, 2011 4 SCC 426 and State of U.P. vs. Mohd. Iqram and another, 2011 8 SCC 80.