Smt. Khurshida vs State & Anr on 11 May, 2009

                               1

     Smt.Khurshida Vs.      The State of Rajasthan & Anr.

     S.B. CRIMINAL REVISION PETITION NO.40/2006


           DATE OF ORDER           :   11th May, 2009.


          HON'BLE MR. JUSTICE MANAK MOHTA


Mr.P.N.Mohnani for the petitioner.
Mr.A.R.Nikub , Public Prosecutor.
Mr.Vineet Jain for Mr.Sandeep Mehta for respondent No.2.


     This revision petition has been filed by the-petitioner

against the order dated 05.10.05 passed by the learned Addl.

Sessions Judge No.2, Chittorgarh Camp Begu in Sessions

Case No.52/05 under section 366 and 376 IPC by which the

accused has been acquitted.



     With the consent of the parties, the matter was heard at

the admission stage and is being disposed of by this order.



     Brief facts of the case are that, on the complaint made

by the husband of the present petitioner a case       vide FIR

No.170/05 was registered against accused respondent No.2

Arjun Kumar under sections 366, 376 IPC and after usual
                                   2

investigation case was challaned in the court and the matter

was committed to the court of Sessions Judge, where charges

were framed and           prosecution evidence started. During

prosecution evidence, statement of PW/3           Smt. Khurshida

(petitioner), was recorded. She did not support the prosecution

story.



         Considering her statement , learned Public Prosecutor did

not want further time to produce other evidence. The learned

trial court, after recording the statement of the accused under

section 313 Cr.P.C. and after hearing both sides, did not find

the charges against the accused          proved and thereby he

acquitted the accused vide impugned judgment and            order

dated 05.10.05. Against that order the present revision has

been filed by the petitioner. Notice of this revision was issued

to the respondents, record of the case was called             and

arguments were heard.



         During the course of arguments, learned counsel for the

petitioner submitted that the learned trial Judge has passed

the order in a hasty manner. He should not have closed the
                                  3

evidence and should have summoned all the other witnesses.

It was also    stated    that   during the     statement of Smt.

Khurshida, (PW/3) she was not confronted with her previous

statements recorded under 161 and 164 Cr.P.C. Thus, the trial

is vitiated and the impugned order is bad in law. A request

was made      to quash     the same and the revision may be

allowed. The learned counsel for the         petitioner also cited

judgments given in       Shailendra Kumar vs. State of Bihar

[2002 Cri.L.J. 568) and K.Anbazhagan vs. Superintendent

of Police [2004 Cri.L.J.583], in support of his contentions.



     On the contrary , learned Public Prosecutor, as well as

learned counsel appearing on behalf of accused respondent ,

refuted the contentions     placed by learned counsel for the

petitioner and supported the judgment given by the learned

trial court. It was     submitted that    the statement of Smt.

Khurshida, given during trial,       which has not supported the

prosecution story, has not       been      disowned even during

argument. Thereafter, nothing remains to be probed and no

fruitful purpose was going to be served by confronting with the

earlier statements and calling of all the remaining witnesses.
                                     4

Therefore , the learned Public Prosecutor has not demanded

further time to produce evidence and learned trial court has

rightly proceeded and          acquitted the accused. There is no

ground for interference in judgment. The authorities cited by the

learned counsel for the petitioner do not apply to the present

case and prayed that the revision may be dismissed.



     I have considered the rival submissions and perused the

material    available on record. I have also gone through the

judgments cited by the learned counsel for the petitioner.



     The charges against the accused respondent           were of

sections 366 and 376 IPC. During the course of trail ,

statement    of   petitioner    PW/3    Smt.Khurshida   has   been

recorded, in which she has not supported the allegations and

further has stated her age to be 32 years and she is mother of

three children. She has stated that she went with the accused

with her on accord and lived with accused with her own wish.

The relevant portion of her statement is quoted as under :



      "म अरन क स थ मर              मर   स गई थ । हम ब हर
      क ट स ईड म घमन क ल ए गय थ। म और अरन
                                5

      10-12 द"न तक ब हर रह थ। स थ -स थ ह रह थ। र
      भ हआ मर मर स हआ अलभयक अरन न मर स
      क ई र ररबर"सत      नह ( क) ह* । अरन न मर स थ
      रबर"सत क ई ख ट क म नह ( ककय अथ त समभ ग
      नह ( ककय । हम एक ह म.हल         म रहत ह* म अरन क
      र नत ह0( प (च स     स मर अरन स " सत ह* । मर
      आ"म न कय4 ररप ट कर य म नह ( बत सकत वह
      र न। अरन न मर स थ रबर"सत क ई ख ट क म
      नह ( ककय   न रबर"सत          गय ।"



     Considering the material       which came    out from her

statement , learned Public Prosecutor did not seek further time

for evidence. In that scenario, the learned trial court proceed

further and after recording the statement under section 313

Cr.P.C., acquitted the accused vide the said judgment.



     During the course of       arguments, on behalf of the

petitioner , her recorded statement during trial has not been

disputed. In that position, the contentions      of the learned

counsel for the petitioner that she has not been confronted

with her previous statements and other     witnesses have not

been called, are not having any legal force. Considering the

position of the case, learned Public Prosecutor did not seek
                                 6

further time for producing the other witnesses and learned

court has proceeded in accordance with law.



     I have also perused the judgments cited by the learned

counsel for the petitioner in the case of Shailendra Kumar's

case (supra) it was observed that even after the order closing

prosecution evidence by High Court, the trial court was

competent for allowing the prayer for producing the witnesses .

It was a case where        charges were framed        against the

accused persons for the offence punishable under sections of

148, 149, 323, 449 and 302 IPC.         In that case, the evidence

was closed by the concerned trial court on the pretext that

time was not sought by the learned Public Prosecutor. Later on

that order was recalled, but the order of         recall was not

maintained by High Court.           Thereafter, application under

section 311 Cr.P.C. for producing of witnesses was filed but

that was also rejected in the light of earlier order of the High

Court. But that is not the position in the present case. Neither

the evidence was closed by the trial court, nor any grievance in

that respect was made with regard to production of evidence

by the petitioner, or by State before the trial court. Likewise, in
                                  7

the other judgment in K.Anbazhagan's case (supra) the case

related to P.C. Act , wherein the scope of 154 Evidence Act

has been dealt with but facts of the present case are different.

Thus, both the the judgments do no help the contentions of the

petitioner.



           Thus, on the basis of aforesaid discussion, I do not

consider any illegality or irregularity in the impugned judgment

and order. There is no ground for interference. This revision

petition is liable to be dismissed and is hereby dismissed.



                                            (MANAK MOHTA), J.

l.george