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Baikunth Lal Soni vs Smt. Rukhsana Parveen 30 … on 17 January, 2019

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HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 145 of 2019

 Baikunth Lal Soni S/o Murlidhar Soni Aged About 55 Years R/o Mathpara,
Chandi Chowk, Durg, Tahsil And District Durg Chhattisgarh

—- Petitioner

Versus

1. Smt. Rukhsana Parveen W/o Jakir Hussain Aged About 45 Years R/o Subhash
Nagar, Durg Tahsil And District Durg Chhattisgarh

2. State of Chhattisgarh Through District Magistrate, Durg District Durg
Chhattisgarh

—- Respondents

For Petitioner : Shri T.K. Jha, Advocate
For Respondent/State : Shri Anant Bajpai, PL for the State

Hon’ble Shri Justice Goutam Bhaduri

Order On Board

17/01/2019

1. Heard.

2. The present petition is against the order dated 28.12.2018 passed by the First

Additional Sessions Judge, Durg in Criminal Revision No.167/18.

3. The facts of this case are that one complainant was examined in a case under

Section 354 IPC in criminal case No.32704/03 in between State Vs. Baikunth

Lal Soni therein after examination and cross-examination, the

witness/complainant wanted to depose something but then the Judicial

Magistrate dismissed the same on the ground that the examination-in-chief and
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cross-examination has already been recorded. Against such observation, the

complainant went into revision. The revisional Court directed that according to

the memo of revision one line should be added that “the accused has also

touched her waist with bad intention”.

4. Learned counsel for the petitioner submits that the said word has not been

uttered and the revisional Court could not have directed for recording of such

statement unless it is deposed, therefore, he submits that that part of the order

of the revisional Court of recording the statement on the basis of the memo of

revision cannot be sustained, accordingly that line may be omitted.

5. Perused the order. The deposition of the complainant after para 20 of the

cross-examination reflects that she wanted to further add something. Section

138 of the Indian Evidence Act, 1872 defines the order of examinations, which

includes that the witnesses shall be first examined-in-chief, then (if the adverse

party so desires) cross-examined, then (if the party calling him so desires) re-

examined. The complainant/witness in this case in all probability wanted to get

her re-examined after cross-examination, the examination having been not

allowed, the same was subject of revision and the revisional Court ordered that

a word is to be added in the deposition on the basis of the pleading in the

memo of revision. The deposition as has been ordered by the revisional Court

on the basis of the pleading in the memo of revision cannot be added unless it

is deposed by the witness. The witness would be free to depose anything and it

is for the trial Court to examine the veracity of the same. The revisional Court

cannot step into shoes of complainant and convert a pleading into evidence
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unless it is been uttered before the Court below. Therefore, that part of the

revisional Court’s order whereby it is directed that one word is to be added in

the deposition that “the accused had also touched the waste with a bad

intention”, stands deleted. The complainant shall be at liberty to re-examine

herself before the Court below.

6. With such observation, the petition stands disposed of.

Sd/-

Goutam Bhaduri
Judge
Ashu

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