Point of Law: Rape - Power to summon material witness, or examine person present - It is clear that the application under section 311 Cr.P.C. has not been moved in a bona fide manner by revisionist to secure ends of Justice.

Headnote:
Criminal Procedure Code, 1973 - Section 311 - Indian Penal Code, 1860 - Section 376 - Protection of Children from Sexual Offences Act, 2012 - Sections 3/4 – Offence of Rape - On date of occurrence, when she went outside to ease herself in morning the accused dragged her into the fields and committed rape on her, after which she returned to her house and informed her mother of the said incident and subsequently her father informed Police. After recording the evidence, the trial is at the stage of final arguments, when the prosecutrix moved an application under Section 311 Cr.P.C. before the trial Court seeking permission to recall her as a witness.
Finding of the court: From a bare perusal of her statement and cross examination, it is clearly borne out that she did not doubt the identity of the accused who would have been present in Court. She herself has stated during her cross examination that in the Police Station she had met accused and was informed about his name. Thus, all along she was aware of the identity of accused till she chose to file application under section 311 Cr.P.C. After duly considering facts of case, plea set forth by revisionist does not inspire any confidence and is clearly not supported by the facts on record - Neither has delay been explained, and Court opinion that same has not been filed in a bona fide manner and therefore no ground for interference is made out with impugned rejection order - It is clear that statement of prosecutrix was recorded and after nearly two and half years, an application u/s 311 Cr.P.C. has been moved, whereby prosecutrix herself wanted to bring on record fact that accused was not the person who committed rape on her. When asked by Court from counsel for revisionist as to what purpose would be served or the reason for delay in moving application under section 311 Cr.P.C. in light of fact that statement of the prosecutrix had been recorded before trial Court in the year 2018, in presence of the accused, no explanation was forthcoming.
Result: Revision rejected

JUDGMENT :

1. Heard Sri Ashish Raman Mishra, learned counsel for the revisionist as well as learned Additional Government Advocate for the State of U.P. through video conferencing in view of COVID-19 pandemic.

2. The revisionist has assailed the order dated 18.03.2021, passed by the Additional Sessions Judge/Special Judge (POCSO), Bahraich in Special Sessions Case No. 36 of 2016 -State Vs. Ajay Kumar, arising out of Case Crime No. 58 of 2016, under Section 376 of the Indian Penal Code (I.P.C). and Sections 3/4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Police Station -Jarwal Road, District -Bahraich, whereby the application preferred by the revisionist/prosecutrix under Section 311 Cr.P.C. for re-recording her statement has been rejected.

3. It has been submitted by the Counsel for the revisionist that a first information report was lodged on 13.01.2016, under Section 376 I.P.C. and Sections 3/4 of POCSO Act against one Ajay Kumar S/o Peshkar, R/o Tapesipah, Police Station -Jarwal Road, District - Bahraich, alleging that the said accused had sexually assaulted the prosecutrix when she had gone to the fields to ease herself in the morning. Investigation was carried out and statements of prosecutrix under Sections 161 and 164 Cr.P.C. were recorded. She reiterated and supported the contents of first information report and after investigation, charge sheet was filed in the Court, pursuant to which the trial commenced against the accused under Sections 376 I.P.C. and Sections 3/4 of POCSO Act. During trial, statement of prosecutrix was also recorded on 19.10.2018, which has been placed on record. The prosecutrix has stated that on the date of occurrence, when she went outside to ease herself in the morning the accused Ajay Kumar dragged her into the fields and committed rape on her, after which she returned to her house and informed her mother of the said incident and subsequently her father informed the Police. After recording the evidence, the trial is at the stage of final arguments, when the prosecutrix moved an application under Section 311 Cr.P.C. before the trial Court seeking permission to recall her as a witness.

4. The trial Court after considering the submissions of learned counsel for the parties has rejected the application u/s 311 Cr.P.C., on the ground that it is a clear attempt by the prosecutrix to delay the trial and now she is making efforts to exonerate the accused for some reasons which have not been disclosed. The prosecutrix not being satisfied by the rejection has approached this Court, and hence this revision.

5. Learned counsel for the revisionist has submitted that the prosecutrix after coming to know that the named accused Ajay Kumar is not the person who had committed rape upon her, moved an application u/s 311 Cr.P.C. for re-recording her statement so as to bring the truth on record. It was vehemently urged that the trial Court has wrongly and illegally rejected the application of the prosecutrix.

6. Learned Additional Government Advocate has opposed the revision by submitting that inter alia, the prosecutrix is attempting to give an exculpatory statement in favour of the accused so as to exonerate him, for the reasons best known to her, and the application has not been filed in a bona fide manner, and further, there is no explanation for the delay in filing the same. It is also urged that her examination in chief and cross examination has been recorded way back in 2018. In either of the said statements she has not mentioned that she could not identify the accused or that she had wrongly identified the accused. It is submitted that even otherwise, this fact is patently false which would be abundantly clear from a bare perusal of her own statements recorded during investigation and also during the trial, and thereby, he has defended the impugned order and has prayed that the revision is devoid of merits and may be dismissed.

7. Heard learned counsel for the parties and perused the re