( 1 ) THIS is a petition under Section 482 of the Code of Criminal Procedure (the Code) challenging the legality and validity of the order dated 4. 4. 1998 and 18. 4. 1998 passed by the trial court whereby the applications under Section 311 of the Code filed by the petitioner and his two co-accused for recalling some prosecution witnesses have been dismissed.

( 2 ) SIMILAR application dated 1. 2. 1997 filed by the accused persons was earlier dismissed on 17. 4. 97. That order was not challenged.

( 3 ) THE petitioner Devinder and co-accused Vijendar have been charged under Section 506/34 Indian Penal Code and co-accused Surinder Singh and Devinder Singh have been charged under Section 376 Indian Penal Code also. The prosecutrix Kumari Meena aged 12 years has alleged in her first information complaint that on 3. 1. 87 at about 5. 00 p. m. she had gone to fetch water from a tubewell. While she was filling the pitcher and was alone accused Surinder gagged her mouth and the three accused forcibly took her to nearby jungle where Surinder and Devinder one after the other raped her and they and the co-accused Vijendar who remained present had extended threats of killing her if she raised alarm or informed any person thereafter. On return to her home, she told the incident to her mother, at that time her father was not at home and when he came home the incident was also narrated to him. Police was informed; the prosecutrix lodged a report of the incident with one ASI. FIR was registered in the night itself. She was medically examined. Her clothes were seized. The three accused were arrested. Medical report as also CFSL report suggested that rape had been committed. After investigation the three accused have been put to trial. During trial the prosecutrix as Public Witness -1 and her parents as Public Witness -3 and Public Witness -4 deposed supporting the prosecution case. Statement of the prosecutrix recorded under Section 164 of the Code was proved by the Magistrate as Public Witness -2. Some police officials who had joined the investigation were also examined. Statments of the accused persons were recorded under Section 313 Criminal Procedure Code.

( 4 ) THE accused also examined three witnesses in defence. Thereafter on the application of the Prosecution under Seciton 311 of the Code five more witnesses were examined. The accused also further examined DW-4 Mukesh, brother of the prosecutrix who proved a letter alleged to have been written at the instance of the prosecutrix denying that the occurrence had taken place. Affidavits of prosecutrix and her father in support of the letter have also been filed. Thereafter, the present application under Section 311 of the Code was filed seeking recalling for cross-examination of the prosecutrix and her parents on the ground that the prosecutrix has now denied that the occurrence of rape had at all taken place and her complaint is motivated. As already noticed another application under Section 311 Criminal Procedure Code. dated 1. 2. 97 was dismissed by the trial court on 17. 4. 97 but that order was not challenged in revision or by any other proceedings. The second application has also been disallowed by the learned trial court on 4. 4. 98.

( 5 ) LEARNED counsel for the petitioner has contended that the learned trial court has acted illegally and to the great prejudice of the petitioner in disallowing the application as in the facts and circumstances the witnesses ought to have been summoned which was in the interest of justice and for a just decision of the case. He has placed reliance on Mohd. Hussain Umar Kochra etc. Vs. K. S. Dalipsinghji and another AIR 1970 SC, 45, Deepak Tandon Vs. State 53 (1994) DLT 312 (Delhi), State Vs. Ramesh @ Ramesh Kumar, (1990) 1 C. C. Cases 444 (Delhi) and also relying on Mohanlal Shamji Soni Vs. Union of India and Anr. 1991 0 SCC (Cr) 595 has contended that this also support the petitioner. Whereas learned counsel for the State has supported