BESAHU LAL YADAV Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Heard. Instant petition is against the order dtd. 24/02/2022 whereby an application filed by the petitioner under Sec. 311 of the Cr.P.C. was rejected.

(2.) The brief facts of this case are that the petitioner is facing a trial under Sec. 341, 354, 376 of IPC and Sec. 4 of Protection of Children from Sexual Offences Act, 2012 before the Additional Sessions Judge, F.T.S.C. (POCSO) Manendragarh, District Korea. The prosecution witnesses were examined. The mother and father of the prosecutrix who were examined as PW-1 and PW-3 turned hostile. The prosecutrix was examined as PW-2. The prosecutrix in her statement in the examination-in-chief supported the case of the prosecution, however in the cross-examination she denied the commission of offence by the petitioner, at that juncture the court in exercise of power under Sec. 165 of the Evidence Act asked the question to the prosecutrix as to which version of her is correct then she again affirmed the happening of the incident. Under these circumstances, on a later stage an application under Sec. 311 of the Cr.P.C. read with sec. 165 of the Indian Evidence Act was moved. Learned court below rejected the application by holding that on the earlier occasion the accused/petitioner was being represented by a competent lawyer and with the change of lawyer sec. 311 of Cr.P.C. cannot be invoked.

(3.) Learned counsel for the petitioner would submit that the power under Sec. 165 of the Indian Evidence Act though gives a discretionary power to the court but in the facts of this case, the petitioner should have been given an opportunity to cross-examine to remove the ambiguity. It is stated initially the prosecutrix supported the case of the prosecution but in the cross-examination incident was disowned and subsequently again when the court asked the question, she supported the version of the prosecution, therefore in order to clarify the same, the application under Sec. 311 of the Cr.P.C should have been allowed which would in turn lead to fair opportunity of trial.