- (1.) BY order impugned dated 25.11.2010 passed by learned Additional Sessions Judge, Shapura (Jaipur), the application preferred by the revisionist under Section 311 of the Code of Criminal Procedure (hereinafter referred as 'the Code') to summon the prosecutrix Santosh for cross examination, stood rejected.
(2.) THE contention of learned counsel for the revisionist, while assailing validity of the order aforesaid, is that although the prosecutrix had been cross-examined by the revisionist but there are certain questions with regard to the Site Plan and the Virginity of the prosecutrix, which could not be asked due to inadvertence. Further that the learned trial court did not appreciate the fact that it is a settled principle that no party in trial, can be foreclosed from correcting errors. Placing reliance on the judicial decision in the matter of Rajendra Prasad vs. Narcotic Cell, 1999 SCC (Cri) 1062, it was urged that court should be magnanimous in permitting inadvertent mistakes to be rectified because the function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. Further that if truth is foreclosed from coming before the court, that is miscarriage of justice. THE court should not go into the technicalities but should try to find out what is the true story. On the other hand the learned Public Prosecutor, assisted by the counsel for the complainant, vehemently opposed the contention of the revisionist, submitting that in the case in hand the examination-in-chief of prosecutrix was recorded on 3.4.2010 and she was cross-examined at length by revisionist's two counsel on three consecutive dates i.e. on 10.6.2010, 16.6.2010 and 17.6.2010 and that the cross-examination continued in 7 pages. Distinguishing the facts of Rajendra Prasad's case (supra), reliance was placed on the judicial decision in the matter of Ramdev v. State of Rajasthan, 2007 (1) RCC 369. It was argued that the witness cannot be called for the purpose of feeling (sic filling) up the lacuna in the case by either side. I have carefully considered the facts and circumstances of the case and the submissions made by the counsel for the rival parties. It is settled law that recalling of a witness at a subsequent stage of the trial, could not be matter of course and is not to be done for the purpose of filling up the lacuna in the case. The court, in exercise of its inherent powers, is to restrain itself from allowing the request for recalling of the witnesses. The discretion vested in the court under Section 311 Cr.P.C. should be exercised judicially and not arbitrarily. With this position of law, if the facts of the case are looked into, I find that the prosecutrix Santosh Soni-PW1, had been examined on 3.4.2010 and was cross-examined on 10.6.2010. Her cross-examination was reserved on account of her ill health on that day. On 16.6.2010 the cross-examination was resumed and it continued for two and a half pages but on account of court time being over, the cross-examination was deferred for the succeeding day i.e. 17.6.2010, which was completed by the defence counsel. On all these dates, the revisionist was present in the Court and assisted his counsel. The record further shows that Site Plan was exhibited on 3.4.2010, and after this date the prosecutrix came three times i.e. on 10.6.2010, 16.6.2010 and 17.6.2010. The revisionist has prayed for recalling the prosecutrix to ask questions with regard to Site Plan but the cross-examination dated 16.6.2010 at page-8, clearly shows that questions with regard to Site Plan, had extensively been asked, which reads as under : ...[VERNACULAR TEXT OMMITED]...
(3.) SO far as the questions with regard to virginity of the prosecutrix are concerned, the medico legal expert has been cross-examined on the issue. The lacunae left by the revisionist, despite opportunity, cannot be allowed to be filled by recalling the witness. The revisionist had been given sufficient opportunity to cross-examine, which was availed also by continuing the cross-examination for three dates running into 7 full scape pages. The learned trial court has elaborately discussed all the aspects of the issue and I do not find any illegality or perversity in the order impugned, which may warrant interference by this court in exercise of its revisional jurisdiction. For the foregoing reasons, this revision is found to be devoid of merit, which deserves to be dismissed and is hereby dismissed with no order as to costs. ;