The accused has the right to call a defense witness and have a full opportunity to defend himself, including the recording of the statement of a Judicial Magistrate under section 164 of the Code of Criminal Procedure.

ORDER :

1. In this criminal revision filed under Section 401 of the Code of Criminal Procedure, the applicant/accused has challenged the order dated 01.08.2023 passed by the First Additional Sessions Judge (POCSO), District - Janjgir Champa, Chhattisgarh in Special Sessions Trial No. 36/2022 under Sections 363, 366, 376 IPC and Sections 4 & 6 of the Protection of Children From Sexual Offenses Act, 2012 whereby the application preferred by the applicant/accused for calling the Judicial Magistrate, Pamgarh, as a defense witness, for evidence by whom the statement of the prosecutrix was recorded under Section 164 of the Code of Criminal Procedure has been rejected.

2. The facts of the case, in brief, are that the accused/applicant is alleged to have allured the prosecutrix aged about 15 years old and took her with him on the pretext of marriage and had physical relationship with her several times. The prosecutrix was recovered from the possession of applicant. Crime No.145/2022 was registered at PS Baloda and charge sheet was filed. After framing of charges, total 10 witnesses were examined by the prosecution. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. The case was fixed for defense evidence. At the stage of defence evidence when the accused presented an application, the order in question was passed.

3. Learned counsel for accused/applicant argues that in the court statement during trial, the prosecutrix has made exaggerated statement in support of the prosecution case. Under Section 164 of the Code of Criminal Procedure, the statement of the prosecutrix was recorded by Judicial Magistrate First Class, Pamgarh, District-Janjgir Champa, Chhattisgarh on 11/05/2022 in which the prosecutrix did not make any statement against the accused. During trial, when the prosecutrix was confronted with that statement Ex. P-8, she said that she had not given such statement to the Judicial Magistrate. In such a situation, it has become necessary for the accused/applicant to get the statement of the Judicial Magistrate recorded as a defense witness in the trial Court who recorded the statement under Section 164 of the Code of Criminal Procedure. But his application has been rejected which is not just and proper and he is not getting full opportunity of hearing. Therefore, in the interest of justice, allowing the criminal revision the order in question be set aside and the concerned Judicial Magistrate should be allowed to be called as a defense witness. In support of his contention counsel for applicant relied upon the judgment of the Hon’ble Supreme court in the case of P. Yuvaprakash v. State Rep. by Inspector of Police 2023 SCC Online SC 846.

4. Learned counsel appearing for the State submits that the order in question is just and proper in the light of available facts and evidence and prays for dismissal of the revision application.

5. Heard both the parties and perused the records.

6. From perusal of the record, it is clear that the statement of the prosecutrix recorded under section 164 of the Code of Criminal Procedure Ex. P-8 does not contain any statement regarding the crime against the accused but during trial, the prosecutrix denied the said statement to have given before the Judicial Magistrate. In such a situation, the document Ex. P-8 is an important document for the defense of accused/applicant. The view/concept expressed by the Honorable Supreme Court in Para – 29 & 30 of the case of P. Yuvaprakash (supra) relied upon by the applicant/accused party is as follows:

29. The above surmise by the trial court is untenable. The prosecution did not concededly produce the Judicial Magistrate who recorded the statement; however, that officer was available and was stationed at Erode. She deposed during the trial, as DW-1, and importantly affirmed the veracity of the victim’s statement (Ex. P-4) by stating as follows:

“It is a true statement given by the said girl wilfully. The said statement was not