MANISH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) The revisionist is an accused for the commission of an offence under Section 376(2)(n) to be read with Section 5(1)/9 of POCSO Act and at present he is facing a Special Sessions Trial being Trial No. 120 of 2018, State v. Manish Chauhan, which is pending consideration before the Special Judge, POCSO. The grievance, which has been raised by the revisionist in the present revision is as against the order dated 31st July 2019, passed by the Court below by virtue of which while exercising its powers under Section 311 of the Code of Criminal Procedure to be read with Section 138 of the Indian Evidence Act, the Court has passed an order directing the re-examination of Dr Barkha, who is a doctor who had examined the victim and who appeared and examined herself as PW5 as she has been directed to appear to be re-examined.

(2.) On the initial examination, which has been recorded by her before the Court below apart from the fact that she has disclosed the facts with regard to the respective dates on which the allegation of Section 376 is said to have been committed by the accused person, but as per the statement recorded by her earlier, there was some ambiguity recorded in her statement pertaining to the age or the year of commission of an offence, because as per the finding which has been recorded in the impugned order, the age of the victim as recorded from the date of commencement of Act under Section 376 was projected to be of 17 years of age and the statement of PW5 has also shown that the commission of offence under Section 376 commenced w.e.f. 2017. In order to elucidate the said fact and to remove that ambiguity, which was observed in her statement pertaining to the aforesaid controversy an application Paper No. 41 (kha) was filed on 27th June 2019 by the complainant before the Court below, invoking the provisions contained under Section 311 of the Code of Criminal Procedure for the purposes of re-examining of PW5.

(3.) In answer to it, the learned counsel for the revisionist has drawn the attention of this Court to the statement recorded by PW5 on 18th June 2019, wherein he has made reference to question number 26 as well as question number 4 which depicts the age of the victim to be 20 years of age and if it is to be read in correlation to question number 26 which was posed to PW5, she has submitted that there was no document filed by the mother of the victim with regards to the age of the victim. Apart from it, if the question number 19 is taken into consideration in relation to the argument as extended by the learned counsel for the revisionist, PW5 has recorded her statement that the sexual contact between the victim and the accused-revisionist began for the first time from 2017, and the last sexual contact is said to have been made on 21st May 2018.