1 2025:CGHC:11838 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 889 of 2025 • Ujjwal Shinde @ Soni S/o Late Vishnu Shinde Aged About 28 Years House No. 12, Nagmandir Road, Near Vinod Grocery Store, Ward No. - 12, Contractor Colony, Supela Bhilai, District Durg Chhattisgarh Since In Jail Through His Wife - Priya Soni, W/o Ujjwal Shinde @ Soni, Aged About 28 Years, House No. 12, Nagmandir Road, Near Vinod Grocery Store, Ward No. - 12, Contractor Colony, Supela Bhilai, District Durg Chhattisgarh. ---- Petitioner Versus 1 - State of Chhattisgarh Through Station House Officer, P.S. - Supela, District - Durg Chhattisgarh. 2 – XYZ (Details In Closed Envelope). . ---- Respondents ----------------------------------------------------------------------------------------------- For Petitioner : Ms. Aditi Singhvi, Advocate For Respondent-State : Mr. Vivek Sharma, PL. ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 10.03.2025 1. This petition has been filed under Section 528 of BNSS challenging the orders dated 05.04.2024 & 01.07.2024 (Annexure P-01) by which learned Additional Session Judge, FTSC (POCSO), Durg, (CG) has rejected the application of petitioner filed u/s 311 of Cr.PC seeking re- examination of the victim (respondent No.2 herein). 2 2. Brief facts of this case is that learned Court below has rejected the application of the petitioner filed u/s 311 of Cr.PC on the ground that the petitioner has not placed on record the certificate under Section 65B of Indian Evidence Act, 1872. The second application of the petitioner was rejected on the ground that the earlier application has ben dismissed on merits. 3. Learned counsel for the petitioner submits that learned Court below has erroneously rejected the application of the petitioner, ignoring the fact that age of the victim plays a vital role in this case as the petitioner/accused has also been convicted under the POCSO Act. The presumption is drawn against the accused under Section 29 of POCSO Act and to discharge the said burden, petitioner/accused needs to prove that victim was major on the date of alleged incident. The petitioner has placed on record a government document wherein date of birth of victim (respondent No.2) is mentioned as 01.07.1998, date of birth of victim at different places creates a doubt on the version of the victim, especially when the case is of love affair. Learned Court below has not dealt with aspect of the document pertaining to the age of the victim and merely rejected the second application on the ground that the first application was rejected on merits. The documents pertaining to the age of the victim were retrieved at a later stage after the examination of the victim. Petitioner/accused moved an application u/s 311 of Cr.PC seeking re- examination of the victim in order to bring on record correct facts and circumstances, which could not be elicited during examination of victim. He submits that rejection of application in the given facts and 3 circumstances of the case would amount to failure of justice and it would also amount to abuse of process of the Court. 4. Learned State Counsel opposing the submission of counsel for the petitioner would submit that victim, who is sought to be recalled for re- examination, was already examined and cross-examined extensively by counsel for the defence. There is no sufficient ground to recall the aforesaid witness. The learned Court below has rightly rejected the said application for recall of the victim. 5. Heard learned counsel for parties and perused the order of trial Court placed on record. 6. Trial Court has vide power under Section 311 CrPC to 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 at any time. Section 311 of Cr.PC 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. 7. Considering facts of the case, pleadings made in the petition, submissions of learned counsel for the parties, particularly the submission that petitioner wants to re-examine the victim in order to bring on record correct facts and circumstances and also for just and proper disposal of the trial, further considering the provision of Section 4 311 CrPC, I find it appropriate to grant one opportunity to petitioner to re-examine the victim with regard to her age. 8. Accordingly, the petition is allowed. Impugned orders dated 05.04.2024 & 01.07.2024 (Annexure P-01) are hereby set aside. Application filed by the petitioner for re-calling of victim/respondent No.2 (PW-1) before the Court Below is hereby allowed. It is directed that Court below shall fix the date for re-examination of the victim and give only one opportunity to the petitioner to re-examine the victim with regard to her age. CC as per rules. Sd/- Sd/- (Arvind Kumar Verma) Judge J/-