Dev Singh and Others vs The State of Madhya Pradesh

P.K. Jaiswal, J.

Heard. Case diary perused.

This fourth/repeat application under Section 439 of the Criminal Procedure Code, 1973 for grant of bail has been filed by applicants, who are implicated in Crime No. 117/2014 registered at Police Station, Jeerapur, District Rajgarh (Biaora) (MP) for the offence punishable under Sections 376 (2) (g), 450 and 506 of the Indian Penal Code. They are in custody since 26.05.2014.

Their first application was dismissed as withdrawn by order dated 12.08.2014. Second repeat application was filed after recording Court Statement of the prosecutrix (PW-1). After arguing for some time, learned counsel for the applicants prayed for withdrawal of the application, and therefore, second application was dismissed as withdrawn by order dated 12.12.2014. Their third application was dismissed on merit by order dated 25.03.2015. Relevant part of the order dated 25.03.2015 reads, as under:-

"This third application has been filed after recording the cross-examination of the prosecutrix.

Earlier after considering the statement of prosecutrix, the second application for grant of bail was rejected on 12.12.2014. As per para 24 and 25 of the cross-examination of the prosecutrix, it cannot be said that it is a case of consent, no case for grant of bail, on the basis of the aforesaid cross-examination, as prayed by the learned counsel for the applicants, is made out."

This fourth application has been filed by the applicants on the ground that as per paragraphs 24 and 25 of the cross-examination of the prosecutrix dated 25.02.2015, the prosecutrix has denied the incident of rape and stated that no one has committed rape on her.

Learned counsel for the applicants submits that this part of the Court Statement of the prosecutrix, which was recorded on 25.02.2015, were not considered earlier and as per the aforesaid, it is a case of consent and prays for grant of bail.

On the other hand, learned Panel Lawyer for the non-applicant/State has opposed the prayer and prayed for rejection of repeat application.

As per the record, statement of the prosecutrix (PW-1) (Annexure A/5) was recorded on 04.08.2014. After recording her statement, an application under Section 311 of the Code of Criminal Procedure, 1973 for recalling the prosecutrix to show with certain photographs of her alleged to have been taken while she was with the accused Makhan Singh. This application was rejected by the trial Court on 18.10.2014. The applicants challenged the said order by filing an application under Section 482 of the Code of Criminal Procedure, 1973. A coordinate bench of this Court by order dated 16.12.2014 allowed the application and directed that the applicants may be permitted to recall the prosecutrix for the limited purpose for confronting her with the alleged photographs of her with the accused Makhan Singh. Relevant part of the order dated 16.12.2014 reads, as under:-

"The relevant facts are that the present applicants are facing trial before the learned Additional Sessions Judge, Rajgarh in S.T. No. 184/2014. They filed an application under Section 311 of Cr.P.C. for recalling the prosecutrix to show her certain photographs of her alleged to have been taken while she was with the accused Makhan Singh. It is the defence of the accused that the prosecutrix was having an affair with the accused Makhan Singh and some photographs were taken.

Learned counsel for the applicants argues that in para 17 of her statement a suggestion was made to her that some photographs were taken of her with the accused Makhan. However, she denied this suggestion. Learned counsel stated that the photographs were not available when the prosecutrix was examined. However, now they are available and they want to confront her with the photographs and for this purpose they pray that the prosecutrix should be recalled.

Learned Magistrate dismissed the application on the ground that no reason was shown why the photographs was not shown to her when the counsel for the accused was cross examining her and dismissed the application.

Learned counsel for the State opposes the application on the ground that if the applicants knew that there were certain photographs of the prosecutrix with the accused Makhan, they should have reserved their right for further cross examining the prosecutrix as and when the photographs would be available. However, the Court was not informed by them about their intention to cross examine her on availability of the photographs and as such now they cannot recall the prosecutrix.

I have gone through the statement of the prosecutrix and also the impugned order. It is true that the learned counsel for the applicant should have informed the Court about their intention to cross examine the prosecutrix on availability of photographs in future. However, it is also true that in that application as well as in the present application under Section 482 Cr.P.C., no cogent reasons were stated why they could not obtain the photographs when the prosecutrix was examined and how they came in possession of the photographs now.

However, just to give a chance for fair trial, this application is allowed. The order of the learned Magistrate is set aside. It is directed that the applicants may be permitted to recall the prosecutrix for the limited purpose of confronting her with the alleged photographs of her with the accused Makhan Singh."

Thus, paragraphs 24 and 25 of the cross-examination dated 25.02.2015 is admissible in evidence for the limited purpose of photographs of her with the accused Makhan Singh. Thus, the statement of the prosecutrix that "" is not admissible in evidence. This fact was also considered while dismissing the third application for grant of bail.

Thus, there is no change in the circumstances to consider this repeat application. Fourth application is accordingly dismissed on merit.