Patna High CourtCR. REV./1378/2018allowed

Rakesh Kumar Roshan @ Rakesh Kumar Raushan v. State Of Bihar And ANR

2023-12-13Mr. Justice Bibek Chaudhuri3 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL REVISION No.1378 of 2018 Arising Out of PS. Case No.-9 Year-2009 Thana- DANDKHORA District- Katihar ====================================================== Rakesh Kumar Roshan @ Rakesh Kumar Raushan S/o Late Sita Ram Mandal, Resident of Village- Baluganj, P.S.- Dandkhora, District- Katihar. ... ... Petitioner/s

Versus

State Of Bihar 2.

Neha Kumari, W/o Rakesh Kumar Roshan @ Rakesh Kumar Raushan, D/o Madho Mandal, Resident of Village- Baluganj, P.S.- Dandkhora, DistrictKatihar. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Mukesh Kumar Jha, Adv.

For the Respondent/s :

Mr. Chandrasen Prasad Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI ORAL ORDER 13-12-2023 Heard learned Advocate for the petitioner as well as learned APP for the State.

2. In Sessions Trial No. 342 of 2009, arising out of Dandkhora P.S. Case No. 09 of 2009, the petitioner was charged under Section 376 of the I.P.C. During trial on 5th October, 2018, the present petitioner/accused filed an application stating inter alia that the defence wants to re-examine the victim witness/informant on the ground that the marriage between the victim and the accused has already been solemnized and they are residing together as husband and wife.

3. Learned A.P.P. by filing a written objection opposed the said petition filed on behalf of the defence. It is held by the

Patna High Court CR. REV. No.1378 of 2018(2) dt.13-12-2023 2/3 learned trial court that an offence under Section 376 of the I.P.C. is non-compoundable and, therefore, no compromise can be recorded on the basis of an application under Section 311 of the Cr.P.C. Accordingly, the said application was rejected.

4. Being aggrieved, the accused/petitioner has filed the instant revision.

5. The impugned order dated 27th October, 2018 was passed in a wrong notion that the accused/petitioner wanted to compound the offence under Section 376 of the I.P.C., which is non-compoundable.

6. Section 311 of the Cr.P.C. empowers a Court to summon any witness during trial or enquiry. Part-II of Section 311 of the Cr.P.C. is mandatory in nature, which states that for just decision of a case the Court can summon any witness for examination, re-examination or cross-examination.

7. Though, the allegation has been made of committing rape of the victim by the accused on a particular date, when she was minor. After attainment of majority, the victim willfully married to the present petitioner/accused.

8. In view of such circumstances, it is the duty of the Court to see as to whether the alleged incident is consensual or not, for such purpose the application under Section 311 of the

Patna High Court CR. REV. No.1378 of 2018(2) dt.13-12-2023 3/3 Cr.P.C. ought to have been allowed.

9. For the reasons stated above, the instant revision is allowed on contest. The order dated 27th October, 2018 is set aside.

10. The learned trial Judge shall given an opportunity to the accused to notify the victim witness/informant for reexamination by the defence.

11. The petitioner is at liberty to act on the server copy of the order.

(Bibek Chaudhuri, J) pravinkumar/- U T