# Mamta Kumari Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 6 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-06
- **Case number:** Crl. Revision No. 342 of 2021
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mamta-kumari-revisionist-v-state-of-u-p-anr-opp-parties-47119
- **Pages:** 10

## Headnote

Govt. Advocate

Application by Prosecutrix for re-recording
her statement rejected-application moved
at the stage of final argument-after two
and half years-afterthought-no ground of
interference.

Held, Undoubtedly, the power to recall any
witness is vested in the trial Court and can be
exercised at any stage of the trial, but the same
has to be done in a reasonable and bona fide
manner to meet the ends of justice. It is also to
be taken into account that the statement of the
prosecutrix during trial was recorded as far back
as 2018. (para 25).

Revision rejected.(E-8)

List of Cases cited:

## Text

6 All. Mamta Kumari Vs. State of U.P. & Anr.
441
23.03.2021 are strictly followed/observed
by all the concerned officers.

(ii) The State Government shall
further ensure that paragraph 12 of the
policy decision dated 23.03.2021 is strictly
implemented, which at the cost of repetition
is reproduced below:

1⁄411⁄2 Hkkjr ds lafo/kku ds vuqPNsn&21 dk
mYya?ku djrs gq;s fdlh O;fDr dh voS/k fgjklr
fd;s tkus ds fy, vuq'kklfud izkf/kdkjh }kjk tkap esa
nks"kh ik;s tkus ij mRrjnk;h vf/kdkjh ds fo:)
m0iz0 ljdkjh lsod 1⁄4vuq'kklu ,oa vihy1⁄2
fu;ekoyh] 1999] fn vky bafM;k lfoZlst 1⁄4fMflIyhu
,aM vihy1⁄2 :Yl] 1969 ,oa m0iz0 v/khuLFk Js.kh ds
iqfyl vf/kdkfj;ksa dh 1⁄4n.M vkSj vihy1⁄2 fu;ekoyh]
1991 1⁄4;Fkk la'kksf/kr1⁄2 esa laxr fu;eksa ds varxZr
n.MkRed dk;Zokgh dh tk;sxhA

1⁄421⁄2 vuq'kklfud izkf/kdkjh }kjk viuh tkap
fjiksVZ 03 ekg esa vFkok laxr fu;ekoyh esa ;Fkk
mfYyf[kr le;kuqlkj izLrqr dh tk;sxhA

1⁄431⁄2 ;fn fdlh ukxfjd dh voS/k :i ls
fgjklr izekf.kr ik;h tkrh gS rks ihfM+r O;fDr dks
:0&25]000@ dh /kujkf'k dk Hkqxrku eqvkots ds :i
esa fd;k tk;sxkA

(iii) The State Government shall
publish Para 12 of its Policy decision dated
23.03.2021
in
all
largely
circulated
National
Level
Newspaper
having
circulation in the State of Uttar Pradesh
and shall also display it on display board
at prominent places within public view, in
all blocks, Tehsil Headquarters, Police
Stations and
in
campus of
District
Collectorate in the whole of the State of
Uttar Pradesh.

(iv) Copy of this order shall be sent by
the State Government to all District level
and Tehsil level Bar Associations in the
whole of the State of Uttar Pradesh.

25. Let a copy of this order be sent by
the Registrar General of this Court to the
Chief Secretary of the State of Uttar
Pradesh
and
the
Additional
Chief
Secretary, Home, for strict compliance.
----------
(2021)06ILR A441
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.05.2021

BEFORE

THE HON'BLE ALOK MATHUR, J.

Crl. Revision No. 342 of 2021

Mamta Kumari ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Ashish Raman Mishra

Counsel for the Opp. Parties:
Govt. Advocate

Application by Prosecutrix for re-recording
her statement rejected-application moved
at the stage of final argument-after two
and half years-afterthought-no ground of
interference.

Held, Undoubtedly, the power to recall any
witness is vested in the trial Court and can be
exercised at any stage of the trial, but the same
has to be done in a reasonable and bona fide
manner to meet the ends of justice. It is also to
be taken into account that the statement of the
prosecutrix during trial was recorded as far back
as 2018. (para 25).

Revision rejected.(E-8)

List of Cases cited:

1. Jamatraj Kewalji Govani Vs St. of Mah. - AIR
1968 SC 178

2. Mohanlal Shamji Soni Vs U.O.I. & anr., 1991
Suppl.(1) SCC 271

3. Raj Deo Sharma (II) Vs St. of Bihar, 1999 (7)
SCC 604,

4. U.T. of Dadra and Nagar Haveli & anr. Vs
Fatehsinh Mohanish Chauhan, 2006 (7) SCC 529
442 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Iddar & ors. Vs Abida & ors., AIR 2007 SC
3029

6. P. Sanjeeva Rao Vs St. of A.P., AIR 2012 SC
2242

7. Rajaram Prasad Yadav Vs St. of Bihar, (2013)
14 SCC 461

8. State (NCT of Delhi) Vs Shiv Kumar Yadav,
(2016) 2 SCC 402

9. Umar Mohammad other's Vs St. of
Raj.[2007] 14 SCC 711

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Ashish Raman Mishra,
learned counsel for the revisionist as well
as
learned
Additional
Government
Advocate for the State of U.P. through
video conferencing in view of COVID-19
pandemic.

2. The revisionist has assailed the
order dated 18.03.2021, passed by the
Additional Sessions Judge/Special Judge
(POCSO), Bahraich in Special Sessions
Case No. 36 of 2016 - State Vs. Ajay
Kumar, arising out of Case Crime No. 58
of 2016, under Section 376 of the Indian
Penal Code (I.P.C). and Sections 3/4 of the
Protection
of
Children
from
Sexual
Offences Act, 2012 (POCSO), Police
Station - Jarwal Road, District - Bahraich,
whereby the application preferred by the
revisionist/prosecutrix under Section 311
Cr.P.C. for re-recording her statement has
been rejected.

3. It has been submitted by the
Counsel for the revisionist that a first
information
report
was
lodged
on
13.01.2016, under Section 376 I.P.C. and
Sections 3/4 of POCSO Act against one
Ajay Kumar S/o Peshkar, R/o Tapesipah,
Police Station - Jarwal Road, District -
Bahraich, alleging that the said accused had
sexually assaulted the prosecutrix when she
had gone to the fields to ease herself in the
morning. Investigation was carried out and
statements of prosecutrix under Sections
161 and 164 Cr.P.C. were recorded. She
reiterated and supported the contents of
first
information
report
and
after
investigation, charge sheet was filed in the
Court,
pursuant
to
which
the
trial
commenced against the accused under
Sections 376 I.P.C. and Sections 3/4 of
POCSO Act. During trial, statement of
prosecutrix
was
also
recorded
on
19.10.2018, which has been placed on
record. The prosecutrix has stated that on
the date of occurrence, when she went
outside to ease herself in the morning the
accused Ajay Kumar dragged her into the
fields and committed rape on her, after
which she returned to her house and
informed her mother of the said incident
and subsequently her father informed the
Police. After recording the evidence, the
trial is at the stage of final arguments, when
the prosecutrix moved an application under
Section 311 Cr.P.C. before the trial Court
seeking permission to recall her as a
witness.

4. The trial Court after considering
the submissions of learned counsel for the
parties has rejected the application u/s 311
Cr.P.C., on the ground that it is a clear
attempt by the prosecutrix to delay the trial
and now she is making efforts to exonerate
the accused for some reasons which have
not been disclosed. The prosecutrix not
being satisfied by the rejection has
approached this Court, and hence this
revision.

Q
5. Learned counsel for the revisionist
has submitted that the prosecutrix after
coming to know that the named accused
6 All. Mamta Kumari Vs. State of U.P. & Anr.
443
Ajay Kumar is not the person who had
committed rape upon her, moved an
application u/s 311 Cr.P.C. for re-recording
her statement so as to bring the truth on
record. It was vehemently urged that the
trial Court has wrongly and illegally
rejected the application of the prosecutrix.

 6. Learned Additional Government
Advocate has opposed the revision by
submitting that inter alia, the prosecutrix is
attempting to give an exculpatory statement
in favour of the accused so as to exonerate
him, for the reasons best known to her, and
the application has not been filed in a bona
fide manner, and further, there is no
explanation for the delay in filing the same.
It is also urged that her examination in
chief and cross examination has been
recorded way back in 2018. In either of the
said statements she has not mentioned that
she could not identify the accused or that
she had wrongly identified the accused. It
is submitted that even otherwise, this fact is
patently false which would be abundantly
clear from a bare perusal of her own
statements recorded during investigation
and also during the trial, and thereby, he
has defended the impugned order and has
prayed that the revision is devoid of merits
and may be dismissed.

7. Heard learned counsel for the
parties and perused the record.

8. From the perusal of record as well
as impugned order it is clear that statement
of prosecutrix was recorded on 19.10.2018
and after nearly two and half years, an
application u/s 311 Cr.P.C. has been
moved, whereby the prosecutrix herself
wanted to bring on record the fact that the
accused was not the person who committed
rape on her. When asked by the Court from
counsel for the revisionist as to what
purpose would be served or the reason for
delay in moving the application under
section 311 Cr.P.C. in light of the fact that
the statement of the prosecutrix had been
recorded before the trial Court in the year
2018, in the presence of the accused, no
explanation was forthcoming.

To examine the validity of the
impugned order, as well as examine the
scope of the power under section 311
Cr.P.C. before the trial Court, it is
necessary to look into the statutory
provisions and its interpretation by the
Hon'ble Apex Court.

9. Section 311 Cr.P.C. reads as
under:-

"311. Power to summon material
witness, or examine person present:

Any Court may, at any stage of any
inquiry, trial or other proceeding under
this Code, summon any person as a
witness,
or
examine
any person
in
attendance, though not summoned as a
witness, or recall and re-examine any
person already examined; and the Court
shall summon and examine or recall and
re-examine any such person if his evidence
appears to it to be essential to the just
decision of the case"

10. The Supreme Court in the case of
Jamatraj Kewalji Govani Vs. State of
Maharashtra - AIR 1968 SC 178, has held
in paragraph 14 that:-

"14. It would appear that in our
criminal jurisdiction, statutory law confers
a power in absolute terms to be exercised
at any stage of the trial to summon a
witness or examine one present in court or
to recall a witness already examined, and
444 INDIAN LAW REPORTS ALLAHABAD SERIES
makes this the duty and obligation of the
Court provided the just decision of the case
demands it. In other words, where the court
exercises the power under the second part,
the inquiry cannot be whether the accused
has
brought
anything
suddenly
or
unexpectedly but whether the court is right
in thinking that the new evidence is needed
by it for a just decision of the case. If the
court has acted without the requirements of
a just decision, the action is open to
criticism but if the court's action is
supportable as being in aid of a just
decision the action cannot be regarded as
exceeding the jurisdiction."

11. In the decision reported in
Mohanlal Shamji Soni vs. Union of India
and another, 1991 Suppl.(1) SCC 271, the
Apex Court again highlighted the importance
of the power to be exercised under Section
311 Cr.P.C. as under in paragraph 10:-

"10....In order to enable the court to find
out the truth and render a just decision, the
salutary provisions of Section 540 of the
Code (Section 311 of the new Code) are
enacted whereunder any court by exercising
its discretionary authority at any stage of
enquiry, trial or other proceeding can
summon any person as a witness or examine
any person in attendance though not
summoned as a witness or recall or re-
examine any person in attendance though not
summoned as a witness or recall and reexamine any person already examined who
are expected to be able to throw light upon
the matter in dispute; because if judgments
happen to be rendered on inchoate,
inconclusive and speculative presentation of
facts, the ends of justice would be defeated."

12. In the decision in Raj Deo
Sharma (II) vs. State of Bihar, 1999 (7)
SCC 604, the proposition has been
reiterated by the Apex Court as under in
paragraph 9:-

"9. We may observe that the power of
the court as envisaged in Section 311 of the
Code of Criminal Procedure has not been
curtailed by this Court. Neither in the
decision of the five-Judge Bench in A.R.
Antulay case nor in Kartar Singh case such
power has been restricted for achieving
speedy trial. In other words, even if the
prosecution
evidence
is
closed
in
compliance with the directions contained in
the main judgment it is still open to the
prosecution to invoke the powers of the
court under Section 311 of the Code. We
make it clear that if evidence of any witness
appears to the court to be essential to the
just decision of the case it is the duty of the
court to summon and examine or recall and
re-examine any such person."

13. In U.T. of Dadra and Nagar
Haveli and Anr. Vs. Fatehsinh Mohanish
Chauhan, 2006 (7) SCC 529, the decision
has been further elucidated by the Supreme
Court as under in paragraph 15:-

"15. A conspectus of authorities
referred to above would show that the
principle is well settled that the exercise of
power under Section 311 Cr.P.C. should be
resorted to only with the object of finding
out the truth or obtaining proper proof of
such facts which lead to a just and correct
decision of the case, this being the primary
duty of a criminal court. Calling a witness
or
re-examining
a
witness
already
examined for the purpose of finding out the
truth in order to enable the court to arrive
at a just decision of the case cannot be
dubbed as "filling in a lacuna in the
prosecution case" unless the facts and
circumstances of the case make it apparent
that the exercise of power by the court
6 All. Mamta Kumari Vs. State of U.P. & Anr.
445
would result in causing serious prejudice to
the accused resulting in miscarriage of
justice."

14. In Iddar and Others Vs. Abida
& Others, AIR 2007 SC 3029, the object
underlying under Section 311 Cr.P.C., has
been stated by the Apex Court as under in
paragraph 11:-

"11. The object underlying Section
311 of the Code is that there may not be
failure of justice on account of mistake of
either party in bringing the valuable
evidence on record or leaving ambiguity in
the statements of the witnesses examined
from either side. The determinative factor
is whether it is essential to the just decision
of the case. The section is not limited only
for the benefit of the accused, and it will
not be an improper exercise of the powers
of the court to summon a witness under the
section merely because the evidence
supports the case for the prosecution and
not that of the accused. The section is a
general section which applies to all
proceedings, enquiries and trials under the
Code and empowers Magistrate to issue
summons to any witness at any stage of
such proceedings, trial or enquiry. In
Section 311 the significant expression that
occurs is ''at any stage of inquiry or trial or
other proceeding under this Code'. It is,
however, to be borne in mind that whereas
the section confers a very wide power on
the court on summoning witnesses, the
discretion conferred is to be exercised
judiciously, as the wider the power the
greater is the necessity for application of
judicial mind."

15. In P. Sanjeeva Rao Vs. State of
A.P., AIR 2012 SC 2242, the scope of
Section 311 Cr.P.C. has been highlighted
by the Apex Court by making reference to
an earlier decision of the Court and also
with particular reference to the case, which
was dealt with in that decision in
paragraphs 13 and 16, which are as under:-

"13. Grant of fairest opportunity to the
accused to prove his innocence was the
object of every fair trial, observed this
Court in Hoffman Andreas Vs. Inspector of
Customs, Amritsar, (2000) 10 SCC 430.
The following passage is in this regard
apposite:

"In such circumstances, if the new
counsel thought to have the material
witnesses further examined, the Court
could adopt latitude and a liberal view in
the interest of justice, particularly when the
court has unbridled powers in the matter as
enshrined in Section 311 of the Code. After
all the trial is basically for the prisoners
and courts should afford the opportunity to
them in the fairest manner possible."

16. Considering all the previous
judments, the Supreme Court outlined
certain principles for excise of power under
section 311 Cr.P.C. in the case of Rajaram
Prasad Yadav v. State of Bihar, (2013) 14
SCC 461.

"17. From a conspectus consideration
of the above decisions, while dealing with
an application under Section 311 Cr.P.C.
read along with Section 138 of the
Evidence Act, we feel the following
principles will have to be borne in mind by
the courts:

a) Whether the Court is right in
thinking that the new evidence is needed by
it? Whether the evidence sought to be led in
under Section 311 Cr.P.C. is noted by the
Court for a just decision of a case?

b)
The
exercise
of
the
widest
discretionary power under Section 311
Cr.P.C. should ensure that the judgment
446 INDIAN LAW REPORTS ALLAHABAD SERIES
should not be rendered on inchoate,
inconclusive speculative presentation of
facts, as thereby the ends of justice would
be defeated.

c) If evidence of any witness appears
to the Court to be essential to the just
decision of the case, it is the power of the
Court to summon and examine or recall
and re-examine any such person.

d) The exercise of power under
Section 311 Cr.P.C. should be resorted to
only with the object of finding out the truth
or obtaining proper proof for such facts,
which will lead to a just and correct
decision of the case.

e) The exercise of the said power
cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and
circumstances of the case make it apparent
that the exercise of power by the Court
would result in causing serious prejudice to
the accused, resulting in miscarriage of
justice.

f) The wide discretionary power
should be exercised judiciously and not
arbitrarily.

g) The Court must satisfy itself that it
was in every respect essential to examine
such a witness or to recall him for further
examination in order to arrive at a just
decision of the case.

h) The object of Section 311 Cr.P.C.
simultaneously imposes a duty on the Court
to determine the truth and to render a just
decision.

i) The Court arrives at the conclusion
that additional evidence is necessary, not
because
it
would
be
impossible
to
pronounce the judgment without it, but
because there would be a failure of justice
without such evidence being considered.

j) Exigency of the situation, fair play
and good sense should be the safe guard,
while exercising the discretion. The Court
should bear in mind that no party in a trial
can be foreclosed from correcting errors
and that if proper evidence was not
adduced or a relevant material was not
brought on record due to any inadvertence,
the Court should be magnanimous in
permitting such mistakes to be rectified.

k) The Court should be conscious of
the position that after all the trial is
basically for the prisoners and the Court
should afford an opportunity to them in the
fairest manner possible. In that parity of
reasoning, it would be safe to err in favour
of the accused getting an opportunity
rather than protecting the prosecution
against possible prejudice at the cost of the
accused. The Court should bear in mind
that improper or capricious exercise of
such a discretionary power, may lead to
undesirable results.

l) The additional evidence must not be
received as a disguise or to change the
nature of the case against any of the party.

m) The power must be exercised
keeping in mind that the evidence that is
likely to be tendered, would be germane to
the issue involved and also ensure that an
opportunity of rebuttal is given to the other
party.

n) The power under Section 311
Cr.P.C. must therefore, be invoked by the
Court only in order to meet the ends of
justice for strong and valid reasons and the
same must be exercised with care, caution
and circumspection. The Court should bear
in mind that fair trial entails the interest of
the accused, the victim and the society and,
therefore, the grant of fair and proper
opportunities to the persons concerned,
must be ensured being a constitutional
goal, as well as a human right."

17. I have given my anxious
consideration to the facts as narrated
hereinabove. Briefly the facts are that
father of the revisionist lodged first
6 All. Mamta Kumari Vs. State of U.P. & Anr.
447
information report against the accused on
13/01/2016 under section 376 IPC and 3/4
of the Protection of Children from Sexual
Offences Act, 2012 at Police Station -
Jarwal
Road,
District
-
Bahraich.
Subsequently, investigation was conducted
by the police and charge sheet was
submitted against be accused, and the trial
commenced vide Special Sessions Case
No. 36 of 2013. During the trial, the
statement of the revisionist was recorded as
PW 2 in 2018. It is only after a lapse of
nearly 3 years the application was moved
by the revisionist for recall of witness along
with a prayer for her being examined again.

18. In order to examine the validity
and legality of the order passed by the trial
court rejecting the application under
Section 311 Cr.P.C. preferred by the
revisionist we have to advert to the various
pronouncements of the Hon'ble Apex Court
as referred to herein above where it has
been stated that the object underlining
Section 311 of the code is that there may
not be a failure of justice on account of
mistake of either party in bringing valuable
evidence on record or leaving ambiguity in
the statement of witnesses examined from
either side, and on the other hand the
exercise of power has to be made on settled
principles as enumerated in the case of
Rajaram Prasad Yadav (Supra).

19. With regard to the scope of an
application under Section 311 of the code
for recall of the witnesses it has been
observed by the Hon'ble Apex Court in the
case of State (NCT of Delhi) v. Shiv
Kumar Yadav, (2016) 2 SCC 402 :

"Certainly recall could be permitted if
essential for the just decision but not on
such consideration as has been adopted in
the present case. Mere observation that
recall was necessary "for ensuring fair
trial" is not enough unless there are
tangible reasons to show how the fair trial
suffered without recall. Recall is not a
matter of course and the discretion given to
the court has to be exercised judiciously to
prevent
failure
of
justice
and
not
arbitrarily. While the party is even
permitted to correct its bona fide error and
may be entitled to further opportunity even
when such opportunity may be sought
without any fault on the part of the opposite
party, plea for recall for advancing justice
has to be bona fide and has to be balanced
carefully
with
the
other
relevant
considerations
including
uncalled
for
hardship to the witnesses and uncalled for
delay in the trial. Having regard to these
considerations, we do not find any ground
to justify the recall of witnesses already
examined."

20.

The
precipice
of
the
abovementioned Judgments is that the
primary object of the application under
section 311 Cr.P.C. is to ensure a fair trial
and any evidence which may be brought on
record should in fact be taken on record so
as to prevent any failure of justice, but on
the other hand such an application has to be
filed in bona fide manner for advancement
of securing a fair trial and even extends to
correct any bona fide error.

21.

Adjudicating
a
similar
controversy the Hon'ble Supreme Court in
the case of Umar Mohammad other's v
state of Rajasthan [2007] 14 SCC 711,
upheld the rejection of the application
under Section 311 of the code where the
same was filed after 9 months of the
deposition of the prosecutrix and after 4
years of the incident and it was observed
that the delay was itself of pointer to the
fact that the victim had been won over. It
448 INDIAN LAW REPORTS ALLAHABAD SERIES
was further observed that "it is absurd to
content that he, after a period of 4 years
and that too after his examination in chief
and cross examination was completed,
would file in application on his own will
and volition. The Supreme Court upheld
the order of trial court and observed
"application
was,
therefore
rightly
dismissed".

22. The reason disclosed by the
revisionist for filing the application under
section
311
Cr.P.C.
enumerated
in
paragraph no. 7 of the revision is that the
revisionist was under the impression that
the named accused is the person who had
committed rape, but after recording her
evidence when she saw the named accused
during the trial, she realised that the named
accused is not the person who has
committed rape on her, and therefore
prayed that she be recalled as witness so
that she, by fresh statement, could bring on
record this fact.

23. It is for the aforesaid reason that
the revisionist moved an application under
section 311 of the Cr.P.C. for recalling her
as a witness and re-recording her statement.

24. The trial court has rejected the
application under section 311 of the crpc
after observing that the stage of evidence is
over and the matter is fixed for final
arguments. Further, it has been considered
that the statement of the prosecutrix had
already been recorded as PW 2 and the
statement of the accused has also been
recorded as per Section 313 of the Cr.P.C.
where he has not denied his identity as
being Ajay Kumar. It has also been
observed that in case there was a dispute
regarding identity of the accused, an
application should have been moved on
behalf of the accused rather than the
prosecutrix, and for these reasons the
application was rejected.

25. In the present case, the application
u/s 311 Cr.P.C. has been filed after a
considerable delay of more than two and a
half years which has not been explained
which leads us to an irresistible conclusion
that the same is an afterthought and has not
been filed in a bona-fide manner, and
further, it is an attempt for some reason,
which seems to be questionable, seeks to
materially dispute the identity of the
accused, and thereby completely alter the
very basis of the prosecution, of which the
revisionist
herself
is
the
author.
Undoubtedly, the power to recall any
witness is vested in the trial Court and can
be exercised at any stage of the trial, but
the same has to be done in a reasonable and
bona fide manner to meet the ends of
justice. It is also to be taken into account
that the statement of the prosecutrix during
trial was recorded as far back as 2018.

26. According to the provisions of
section 273 Cr.P.C. the evidence during a
trial has to be recorded in presence of the
accused, and therefore in 2018 when the
examination in chief was recorded, the
same must have been done in the presence
of the accused, and there is no denial of the
same in either the application moved before
the trial Court or before this Court. It is
therefore
safe
to
presume
that
the
Examination in chief was recorded in
presence of the accused, and therefore
undisputedly, the revisionist had ample
opportunity to identify or question the
identity of the accused who was present in
court. No dispute about the identity of the
accused was raised before the trial Court or
within any reasonable time subsequently.
No credible or convincing explanation is
forthcoming for not raising the dispute
6 All. Mamta Kumari Vs. State of U.P. & Anr.
449
regarding identity of the accused at that
stage. On the contrary a perusal of
statement of revisionist during trial, the
following
facts
emerge,
which
unequivocally point out that the revisionist
was aware of the identity of the accused:-

A. A perusal of the statement of the
prosecutrix would indicate that she has
categorically named the accused who
sexually assaulted her.

B. During cross examination she has
stated that previously she did not know the
accused but she saw him when she
appeared before the trial court for her
deposition.

C. During cross examination she
stated that she had identified the accused in
the police station where she came to know
about the name of the accused.

D. During cross examination it has
again been stated by the prosecutrix that the
accused had accosted her in the morning of
the date of incident when she had gone to
ease herself in the fields, from behind the
accused had put a muffler around her face
so that she could not shout for help.

27. The application under section 311
CrPC filed by the revisionist, on the face of
it defeats the very purpose for which it has
been moved. It does not in any manner
advance the ends of Justice or the case of
the prosecution but defeats and sets to
naught the entire proceedings conducted till
date. The identity of the accused is one of
the most salient and crucial aspect to be
determined by the trial Court when the
same is questioned by the accused. In the
present case the identity of the accused is
sought to be questioned by the prosecutrix
herself, rather than by the accused, which is
rather unusual. It cannot be ruled out that
the said application has been moved at the
behest of the accused and that the
prosecutrix has been won over for some
undisclosed consideration or threat.

28. A perusal of application u/s 311
Cr.P.C. clearly indicates that same is highly
belated and has not been filed to secure the
ends of justice. Statement of prosecutrix as
well as the statement of accused u/s 313
Cr.P.C. have been recorded, and trial is at
its fag end and there is no cogent
explanation
for
delay
in
filing
the
application at such a belated stage.

29. In light of the above facts, it is
clear that the application under section 311
Cr.P.C. has not been moved in a bona fide
manner by the revisionist to secure the ends
of Justice. It does not seek to fulfill some
lacunae which may have been inadvertently
left out during the examination in chief of
the prosecutrix. From a bare perusal of her
statement and cross examination, it is
clearly borne out that she did not doubt the
identity of the accused who would have
been present in Court. She herself has
stated during her cross examination that in
the Police Station she had met the accused
and was informed about his name. Thus, all
along she was aware of the identity of the
accused till she chose to file the application
under section 311 Cr.P.C. After duly
considering the facts of the case, the plea
set forth by the revisionist does not inspire
any confidence and is clearly not supported
by the facts on record.

30. The Courts have a duty to
examine the attenuating circumstances, and
the reasons set forth in the application for
recalling any witness. In case, there is a
bona fide mistake, or any fact has been
unintentionally left out from the testimony,
or discovery of new fact which was not
earlier in the knowledge of the witness, are
some of the grounds available for which the
450 INDIAN LAW REPORTS ALLAHABAD SERIES
power under section 311 Cr.P.C. may be
exercised for the recall of a witness. But
simultaneously, on the other hand, it has to
be mentioned that the application has to be
moved expeditiously, so that the trial
proceedings do not get procrastinated to the
disadvantage
of
the
accused,
who
undoubtly has a right of speedy trial. We
would hasten to add that in case the said
application has been filed with delay, the
same is not liable to be rejected on this
score alone, but it would be imperative to
explain the delay to the satisfaction of the
Court. In the present case, neither has the
delay been explained, and also this Court is
of considered opinion that the same has not
been filed in a bona fide manner and
therefore no ground for interference is
made out with the impugned rejection
order.

31. In light of the above I do not find
any infirmity with the order of the trial
court, and even otherwise considering the
facts of the case there is no ground to
interfere with the impugned order.

32. The revision lacks merit and
accordingly rejected.

33. The trial Court is directed to
conclude the trial expeditiously. Let a copy
of this order be sent to the Court concerned.
----------
(2021)06ILR A450
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 451 of 2020

Manish Kumar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satyawan Yadav, Sri Ranjeet Yadav, Sri
Anand Kumar Srivastava

Counsel for the Respondents:
G.A., Sri Ashutosh Yadav, Sri Sudhanshu Kumar,
Sri Rajeev Lochan Shukla A.C.

Corpus minor -married out of his free willto a major girl-Petition filed by his
mother-illegal detention by wife-marriage
voidable-major wife cannot be entrusted
with the custody of minor husband-Corpus
send to Safe Home until he attains the age
of 18 years-thereafter be set free to go
wherever he wants.

W.P. allowed. (E-8)

List of Cases cited:

1. T. Sivakumar Vs Inspector of Police of
Theravallur, AIR 2012 Mad. 62

2. Court on its own motion (Lajja Devi) & ors.
Vs St.& ors., 2013 CrLJ 3458

3. Independent Thought Vs U.O.I. & anr., (2017)
10 SCC 800

4.Akbar & anr. Vs St. of U.P.& ors., 2008 (2) ADJ 98

5. Special Leave to Appeal (Crl.) No.2664 of
2008

6. Shahnaz Begum Vs St. of U.P. & ors., decided
on 23.02.2016.

7. Gaurav Nagpal Vs Sumedha Nagpal, (2009) 1
SCC 42

8. Albert G. Smith Vs Walter W. Seibly, 72 Wn.2d
16 (1967) 431 P.2d 719

9. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42

10. Ramesh Tukaram Gadhwe & ors. Vs
Sumanbai Wamanrao Gondkar & anr., 2007 SCC
OnLine Bom 975