MP High Court Quashes Lower Court Order Allowing Application Of Alleged Rape Victim U/S 311 CrPC To Recall Herself

Justice Atul Sreedharan was dealing with an application under Section 482 CrPC, moved by the Applicant assailing the order of the lower court, whereby the application moved by the Prosecutrix under Section 311 CrPC was allowed.

The case of the Applicant was that he was facing trial for offences punishable under Section 376, 498-A IPC and under Section 3, 4 of the Dowry Prohibition Act, 1961. During the trial, the Prosecutrix had moved an application under Section 311 CrPC before the lower court, asserting that the statements made during her cross-examination was under coercion from the accused and some other persons.

The Applicant argued that the finding of the lower court in the impugned order that the Applicant/accused was adopting procrastinating tactics was bad in law. He further submitted that the trial court had wrongly held that the Prosecutrix had changed her initial statement during her examination-in-chief. Lastly, he asserted that the lower court had taken the version of the Prosecutrix as a gospel truth, without taking any effort to enquire into the matter. He also argued that had the Prosecutrix actually been under pressure, she could've directly informed the court during the time of her cross-examination, but she didn't. Accordingly, he sought for directions of the Court to set aside the impugned order.

Per contra, the State submitted that the Prosecutrix and her parents were all abducted by the Applicant and who then compelled her to give a statement in his favour. Therefore, it was argued that the impugned order did not call for interference of the Court.

Considering the submissions of parties and the trial court record of the case, the Court held that it was not the case that the Prosecutrix had resiled from her previous statements, though she did contradict her statements. The Court further noted that neither she nor her parents were declared hostile by the Prosecution.

The contradictions have been brought out by the defence counsel on account of his ability to do so by cross-examining the prosecutrix. It is not a case where the prosecutrix has totally abandoned her statement in examination-in-chief and has laid down a totally different case in her cross-examination. Nowhere has she stated in her cross-examination that the incident has not happened but, by the contradictions, the courts may doubt the statement of the prosecutrix.

As regards the statements of her parents, which is also recorded on 6.12.2019, they have only stated that they don't know the factual aspects relating to what has happened to their daughter i.e. the prosecutrix. They too have not been declared hostile and neither they have been cross- examined by the defence as no necessity to do so was felt by the defence counsel.

The Court further observed that the lower court ought to have looked into the allegations of abduction levelled by the Prosecutrix before considering her application under Section 311 CrPC. Instead, the Court noted, the trial court believed her version without enquiring into the matter-

There is nothing more than the allegation in the application filed under section 311 Cr.P.C. to corroborate what the prosecutrix has stated in the application. The trial court also did not carry out any kind of enquiry or asked the police to enquire into the said incident and has merely taken the allegations made in the application itself as a gospel truth, which is impermissible and, therefore, the finding relating to the abduction of the prosecutrix by the petitioner is also unfounded and liable to be set aside.

Elucidating the scope of Section 311 CrPC, the Court observed-

An application under section 311 Cr.P.C. cannot be allowed merely for asking as has been done in this particular case by the learned trial court. Time and again the Supreme Court has reminded the trial courts that the ambit and scope under section 311 Cr.P.C. is not an opportunity, given either to the prosecution or the defence, to cover up the lacuna left by them in not examining the witnesses properly on the first occasion.

With the aforesaid observations, the Court set aside the impugned order, holding that the same was untenable on facts and law. It was further observed that pursuant to the impugned order, if any statement of the Prosecutrix was recorded, the same was illegal in the eye of law and it shall not be considered by the trial court while deciding the case before it. Accordingly, the application was disposed of.

Case Title: Sandeep Yadav v. State of Madhya Pradesh and Anr.

Citation: 2022 LiveLaw (MP) 130