SAMEER USMANI Vs. STATE OF M.P.

JUDGEMENT

(1.) This petition has been filed under sec. 482 of CrPC against the order dated 22.7.2017passed by 11th ASJ, Bhopal, in S.T. No.26918/2017; whereby learned ASJ rejected the applicant's application filed under sec. 311 of CrPC for recalling the prosecutrix for further cross-examination.

(2.) Brief facts of the case which are relevant to the disposal of this petition are that the applicant is facing trial in S.T. No.26918/2017 pending before 11th ASJ, Bhopal. During the trial of the case, on 20/6/2017, applicant filed an application averring that the prosecutrix in Para-5 of her statement admitted that it was true that applicant did not committed any act with her, while in her re-examination she deposed that applicant had brought her Mirinda, on drinking which she felt intoxicated . Likewise in her re-examination, she also deposed that when she got up in the morning and there were no clothes on her body at that time accused raped her again. While these facts are not mentioned in her case diary statement recorded by the police under sec. 161 of the CrPC and statement recorded by the JMFC under sec. 164 of CrPC. So applicant be permitted to further cross examine the prosecutrix on that point.

(3.) Learned trial Court rejected the prayer of applicant observing that that the counsel for the applicant had cross- examined the prosecutrix in detail on 15/3/2017, therefore, there was no need to recall the prosecutrix for further cross- examination. Being aggrieved by the impugned order, applicant filed this petition. Learned counsel for the applicant submitted that prosecutrix was re-examined by the prosecution after cross-examination of the prosecutrix by the applicant/accuased . wherein she deposed that applicant had brought her Mirinda, on drinking which she felt intoxicated . She also deposed that when she got up in the morning and there were no clothes on her body at that time accused raped her again. While these facts are not mentioned in her case diary statement recorded by the police under sec. 161 of the CrPC and statement under sec. 164 of CrPC recorded by the JMFC. So she needs to be re-examined on that point. Learned trial Court rejected his application without considering the aforesaid facts. It is, therefore, prayed that the applicant be permitted to further cross examine the prosecutrix regarding these facts in the interest of justice.