SUGAN CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 22.04.2011 passed by Special Judge (Prevention of Women Atrocities & Dowry Cases), Jaipur City, Jaipur. whereby the learned Judge has dismissed the petitioner's application under Section 311 Cr.P.C. for recalling certain witnesses and for production of the prosecutrix's clothe and for the production of the F.S.L report before the court.

(2.) Briefly, the facts of the case are that on 02.09.2009, Sunita Yadav lodged a report at Police Station Murlipura wherein she alleged that her daughter, Poonam Yadav was ravished by the petitioner. On the basis of the said report, a formal F.I.R, F.I.R No.305/ 2009 was chaked out for offences under section 456 and 376 I.P.C. Subsequently, after investigation, charge-sheet was submitted against the petitioner. The learned trial Court framed the charges for offences under Sec.450, 376(1) I.P.C, and the trial commenced. During the course of the trial, initially the complainant filed an application under Section 231 Cr.P.C. praying that the clothes seized during investigation should be produced before the trial Court. Moreover, the complainant prayed that the F.S.I, report should also be produced before the trial Court. However, the said application was subsequently withdrawn by the prosecutrix. Poonam Yadav was examined as PW-1, Sunita Yadav as PW2 and Suresh Yadav as PW-4. The petitioner moved an application under Section 311 Cr.P.C. inter-alia praying that the clothes of the prosecutrix. which were recovered by the police and the FSL report thereon should be produced before the trial Court. Moreover, after production of the said article and the document, PW-1 PW-2 and PW-4 should be recalled for further examination. However, vide order dated 22.04.2011, the said application has been dismissed. Hence this petition before this Court.

(3.) Mr. Ghanshyam Sisodia, the learned counsel for the petitioner has raised the following contentions before this Court. Firstly, that according to the provisions of the Evidence Act, the best evidence has to be produced in order to do complete justice to a case. Relying on the testimony of Poonam Yadav, he has further contended that according to her, her clothes were recovered by the police. Moreover, according to the charge- sheet submitted by the police, it clearly reveals that the clothes were indeed recovered by them. Moreover, the said clothes were sent to the FSL for its examination. However, neither the clothes, nor the F.S.L report has been submitted before the learned trial Court. Secondly, that the petitioner requires the production of clothes as well as the F.S.L report as his defence is that the incident had never occurred. He further contends that the petitioner is being falsely implicated in a case of rape, whereas according to the petitioner the entire dispute relates to repayment of certain loan amount. Thus, the clothes and the F.S.L report needs to he produced in order to falsify the prosecution case and in order to buttress his innocence. Thirdly, that the right under Section 311, Cr.P.C. is as much available to the accused as to the prosecution. Moreover, according to this Court, the power under Section 311 Cr.P.C. should be invoked by the trial Court in order to do substantial justice to the accused. In order to buttress this contention, the learned counsel has relied on the case of Trilok Singh v. State of Rajasthan, 2002 1 CriCC 569 , Iddar & Ors. v. Aabida & Anr., 2007 3 CriCC 847 , Harish Mourya v. State of Rajasthan, 2008 1 WLC(Raj) 98 and Prem Babu alias Vinod Kumar v. The State of Rajasthan & Anr., 2009 3 WLC(Raj) 215. Lastly, the learned counsel has contended that in case these articles were produced, it is imperative that PW-1, PW-2 and PW-4 should be recalled as witnesses under Section 311, Cr.P.C. so as to give the accused an opportunity to cross examine them vis-a-vis the recovery and the F.S.L report.