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Golu v. State Of U.P. & Another - APPLICATION U/s 482 No. - 16444 of 2006  RD-AH 17942 (16 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Crl. Misc. Application no. 16444 of 2006
Golu . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . Applicant.
State of U.P. and another . . . . . . . . . . . . . . . . . . . .Opp.Parties.
Hon'ble R.K. Rastogi,J.
This is an application under section 482 Cr.P.C. to quash the order dated 3.10.2006 passed by the Addl. District & Sessions Judge, Court No. V, Moradabad in S.T. no. 639 of 2004, State of U.P. Vs. Golu & others, under section 376 I.P.C. police station Kanth district Moradabad.
The facts relevant for disposal of this application are that the aforesaid sessions trial is pending against Golu, Salim, Adil under section 376(2)(G), 120-B and 506, I.P.C. and section 25 Arms Act and against Chhoti and Khuso under section 376(2)(G),120-B and 506 I.P.C. in the aforesaid court. The statement of prosecutrix Shabnam who was allegedly aged about 12 years at the time of incident has been recorded as P.W.1 and she was cross examined by the learned counsel for the accused. Then statements of Hafiz Shah and Ali Hasan were recorded as P.Ws. 2 and 3 respectively. Thereafter an other counsel was engaged from the side of the accused who moved an application for recalling Shabnam P.W.1 for putting following questions to her:
1.Question regarding her age,
2.Suggestion regarding her age.
3.Question regarding menses,
4.Question on the point whether she resisted at the time of rape or not?
5.Question regarding interse relationship of accused persons.
6.Question as to who were residing in Haveli where the disputed incident of rape took place;
7.Contradictions regarding statement under section 164 Cr.P.C.
8. Suggestions regarding enmity and denial of incident.
The learned Presiding Officer of the court after hearing both the parties rejected the above application on the ground that the witness had been sufficiently cross examined and the question regarding interse relationship of the accused persons have already been put and as such there was no justification for recalling the witness. He further observed that application appears to have been moved with a view to delay the proceedings. Aggrieved with that order the present accused-applicant has filed this application under section 482 Cr.P.C.
I have heard learned counsel for the applicant, learned A.G.A. for the State at the admission stage and since the point involved in the case is legal one, I am deciding it on merits at the admission stage with consent of the parties. No notice is required to be given to Munnawwar Shah, the informant O.P. no.2 as it is a State case.
On perusal of the copy of the statement of Km. Sabnam, which has been annexed as Annexure no. 9 to the affidavit filed in support of the application, I find that out of all the aforesaid questions listed at serial nos. 1 to 8 no question has been put to Km. Sabnam except the question of interse relationship of the accused persons. The remaining questions listed at serial nos. 1 to 4 and 6 to 8 are also relevant and important questions in a case of rape. These questions were not put to the witnesses during cross examination. It is true that accused had ample opportunity to cross examine the witness, but if his counsel did not put these relevant & important questions to her, the accused should not be penalised by depriving him of opportunity to put these questions to the witness and seek her reply. As such I am of the view that P.W.1 Km.Sabnam should be re-summoned for putting questions no. 1 to 4 and 6 to 8 to her on the expenses of the accused -applicant.
I, therefore, allow this application under section 482 Cr.P.C. Let Km. Sabnam be summoned from her present place of residence for limited further cross examination on the questions no. 1 to 4 and 6 to 8 specified above, provided the accused applicant deposits her travelling expenses for coming from her present place of residence to the court and for going back to that place and her diet money, which shall be paid to her when she appears in court for her statement.
No further question shall be permitted during this further cross examination which shall be limited to the questions no. 1 to 4 and 6 to 8 only.
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