Amitav K. Gupta, J. - (1.) This revision has been preferred against the order dated 09.04.2014 passed by the Addl. District Judge No.VII, Palamau in S.T. No.343 of 2009, whereby the petition filed by the petitioner under Section 311 of the Criminal Procedure Code has been rejected.
(2.) Learned counsel appearing for the petitioner has assailed the impugned order and submitted that P.W-6, Daizy Khatun in her examination-in-chief has stated that " I have prevented him but in spite of my prevention Rashid Khan has committed rape upon me and thereafter he took me to his mother and told her that this is your (bahu) daughter-in-law." That in para- 2, P.W-6 in examination-in-chief has stated that "two types of tablet were given to me and I was told to eat and when I refused to eat, by giving pressure they forced me to eat the medicine and also assured about marriage with Rashid Khan." It is urged that P.W-3, Sanju Khan in para-1 of his cross- examination-in-chief has stated that "rape had been committed on my sister" and in para-5, he stated that "parents of the boy had given the tablets." It is argued by the learned counsel appearing for the petitioner that the said statements had not been made by P.W-6 in the First Information Report neither P.W-3 has made such statement under Section 161 Cr.P.C and the petition was filed to recall P.W-3 and P.W-6 to cross-examine them on the limited question, whether they had made such statement in the First Information Report or under Section 161 Cr.P.C; that the re-examination of PWs 3 and 6 is necessary as they have made improvement and embellishment in their statements during examination-in-chief. In support of his contention, he has relied on the decision rendered in case of "Natasha Singh v. C.B.I" reported in A.I.R 2013 SCW 3554. It is submitted that the accused is facing trial for a serious offence and fair opportunity should be given to ensure that no prejudice is caused to the defence but the court below without appreciating this aspect, has rejected the prayer for recall; that the impugned order is in contravention to the object and scope of the provisions of Section 311.
(3.) Mr. Pankaj Kumar, learned A.P.P. appearing for the State assisted by Mr. Ajay Kumar Pathak, learned counsel appearing for the informant, has submitted that on perusal of the First Information Report and the depositions of P.W-3 and P.W-6, it is evident that the prosecutrix has narrated the occurrence as recited in the F.I.R. and use of word 'rape' is not an embellishment because in the F.I.R., she has stated that despite her protest the accused had physical relationship on the assurance that he would marry her and P.W-3 has used the word 'rape' but this in no way is an embellishment as it is the case of the prosecutrix that the petitioner had established sexual relationship with her despite her protest. That both the witnesses have been cross-examined at length; that the application has been filed after four years of examination of the witnesses only with an intent and purpose to delay and prolong the trial. It is contended that the trial court has considered and discussed the material facts and the provisions of Section 311 Cr.P.C and there is no illegality in the impugned order.;