JUDGMENT : This appeal, under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), has been preferred against the judgment and order dated 13.10.2015 passed by Fast Track Court/Special Judge (POCSO)/Additional District Judge, Dehradun, in Special Sessions Trial No.17 of 2014, whereby said court has convicted the accused/appellant under Section 376/511 of The Indian Penal Code, 1860 (for short, the IPC) and has sentenced him to undergo rigorous imprisonment for a period of ten years and fine of Rs. 15,000/-. It was also directed that in default of payment of fine, the accused shall undergo simple imprisonment for a period of one month. 2. Heard Mr. Chitrarth Kandpal, learned Amicus Curiae and Mr. P.s. Bohara, learned Assistant Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that on 23.08.2014 Smt. Afsana lodged a first information report at P.S. Pathribag, Dehradun, stating therein that on 22.02.2014 when she was sitting outside her house, at about 10.30 pm her husband (the present accused/appellant) came and asked to give him food. She replied that she has prepared food and he may take the same on his own, as she is going to listen the speech of Imam Sahab. After sometime, she heard the screams coming from her house. She rushed to her house and in the light of lantern she saw that the accused/appellant was trying to commit rape with her handicapped daughter. On the basis of F.I.R., chik F.I.R. was prepared and case crime no.80 of 2014 was registered against the accused/appellant in respect of offences punishable under Section 376/511 of IPC and one punishable under Section 7/8 of Prevention of Children from Sexual Offences Act, 2012 (for short, POCSO). Investigation of the case was given to S.I. Kiran Aswal, who during the course of investigation, recorded the statement of witnesses, got recorded the statement of prosecutrix under Section 164 Cr.P.C., got conducted medical examination of the prosecutrix, visited the spot and prepared the site-plan, and after completion of investigation, submitted charge sheet against the accused/appellant under Section 376/511 of IPC and 7/8 of POCSO. 4. 4. Learned Special Sessions Judge, Dehradun, on receipt of the charge sheet, appears to have given necessary copies to the accused as required under section 207 of Cr.P.C. After hearing the parties, on 29.05.2014, charge was framed against the accused/appellant in respect of offence punishable under Section 376/511 of IPC and one punishable under Section 8 of POCSO. 5. The prosecution, in order to prove its case, got examined P.W.1 the prosecutrix, P.W.2 Smt. Afsana, the complainant, P.W.3 Saleem, P.W.4 Dr. Vandana Sundriyal, P.W.5 Sub Inspector Kiran Aswal and P.W.6 Head Constable Harkesh Singh. 6. P.W.1 is the prosecutrix, aged 12 years. She made the assertion as narrated in the F.I.R. She also stated that after the incident, her father caught the neck of her mother and their neighbour had come to save her mother. She was medically examined and her statement was also recorded before the Magistrate. In cross-examination, she stated that her father always used to come in drunken state and abuse her mother and there had been quarrel between her mother and father for that reason. 7. P.W.2 Smt. Afsana has reiterated the contents of the F.I.R. in her testimony. In cross-examination, she stated that she along with her family is residing in one room. There are 35 huts near her house and one Mani Ram also resides in the adjacent house. 8. P.W.3 Saleem is brother-in-law (Jija) of the complainant. He has stated that on 22.3.2014 at about 10.30-11 pm, the complainant called him on phone whereafter he went to her house where she told him that the accused/appellant has tried to commit rape with the prosecutrix. 9. P.W.4 Dr. Vandana Sundriyal has stated that on 24.03.2014 she was posted as Medical Officer, Women Hospital Dehradun. She had conducted medical examination of the prosecutrix and had found no external sign of injury on the body of prosecutrix. 10. P.W.5 Smt. Kiran Aswal, Sub Inspector has conducted investigation of the case. In her testimony, she has stated that during the course of investigation, she has recorded statement of witnesses, took clothes of the prosecution into her possession, arrested the accused, got conducted medical examination of the prosecutrix and also got her statement recorded. In cross-examination she admitted that she has received FSL report after submission of charge sheet and as per FSL report, spermatozoa and blood stains were not found on the clothes. 11. In cross-examination she admitted that she has received FSL report after submission of charge sheet and as per FSL report, spermatozoa and blood stains were not found on the clothes. 11. P.W.6 Head Constable Harkesh Singh is a formal witness, who has prepared the chik F.I.R. Ext.ka-9. 12. Thereafter, oral and documentary evidence was put to the accused/appellant under section 313 Cr.P.C. in the form of questions. He gave specific reply to each question and submitted that he has been falsely implicated in the case. He also submitted that her wife had illicit relationship with her brother-in-law (P.W.3). 13. The trial court, after hearing the parties and perusal of the record, passed the impugned judgment and order, convicting and sentencing the accused/appellant, as above. Feeling aggrieved, this appeal has been preferred by the accused/appellant from Jail. 14. Mr. Chitrarth Kandpal, learned Amicus Curiae for the appellant, at the very outset, taking the Court through the statement of the accused person, recorded under Section 313 CrPC, has submitted that the learned trial Judge committed gross error by failing to comply with the statutory provisions prescribed by sections 232 and 233 of Cr.P.C. by not calling upon the accused person to adduce his defence evidence. On behalf of the convict-appellant, it is submitted by the learned counsel that no opportunity was given to the accused person to adduce defence evidence and thus, much prejudice has been caused to the convict-appellant, and the impugned judgment and order is liable to be set aside on this ground alone. 15. Per contra, Mr. P.S. Bohara, learned Assistant Government Advocate submitted that though it is not reflected in the impugned judgment and order that the accused person was asked to adduce defence evidence but the record shows that he was provided opportunity to lead defence evidence but he declined to enter into his defence. 16. I have heard learned counsel for the parties and perused the entire record. 17. Before any discussion, it would be necessary to reproduce Sections 232 and 233 CrPC, which read as follows:- "232. Acquittal If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal." 233. Acquittal If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal." 233. Entering upon defence (1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." 18. In view of the above statutory provisions, there is no dispute that it is the bounden duty of the trial Court to call upon the accused person to enter on his defence to adduce any evidence, he may have in his support, if he is not acquitted under Section 232 Cr.P.C. 19. In the present case, order sheet of the trial court reveals that after the prosecution evidence was closed on 04.09.2015, the learned Trial Judge fixed the case for 8.9.2015 for recording the statement of the accused u/s 313 Cr.P.C. Thereafter, on 08.09.2015, statement of the accused was recorded u/s 313 Cr.P.C. After recording the statement of the accused u/s 313 Cr.P.C. 10.09.2015 was fixed and signatures of the accused were taken on the left side of the order sheet by putting the word D.E. on the left side of order sheet. It appears that subsequently the order sheet was written by the Reader of the Court and not by the Court itself. The accused was not made aware in vocal words that 10.09.2015 is fixed for his defence evidence. Order dated 10.09.2015 is extracted hereunder: “10.09.2015 okn iqdkjk x;kA vfHk;qDr U;kf;d vfHkj{kk esa mifLFkr gSA vf/koDrk vfHk;qDr }kjk Ik`"Bkadu fd;k x;k fd vc dksbZ cpko lk{; ugha nsuk gSA vfHk;qDr fn0 11-09-2015 rd U;kf;d vfHkj{kk esa jgsxkA i=koyh okLrs cgl fn0 11-09-2015 dks is'k gksA i=koyh fu;r frfFk ij is'k gksA^^ 20. Order dated 10.09.2015 is extracted hereunder: “10.09.2015 okn iqdkjk x;kA vfHk;qDr U;kf;d vfHkj{kk esa mifLFkr gSA vf/koDrk vfHk;qDr }kjk Ik`"Bkadu fd;k x;k fd vc dksbZ cpko lk{; ugha nsuk gSA vfHk;qDr fn0 11-09-2015 rd U;kf;d vfHkj{kk esa jgsxkA i=koyh okLrs cgl fn0 11-09-2015 dks is'k gksA i=koyh fu;r frfFk ij is'k gksA^^ 20. English translation of order dated 10.09.2015 is as follows: “10.09.2015 Case called out. Accused present in judicial custody. An endorsement has been made by counsel for the accused that the accused do not want to give any defence evidence. Accused will remain in judicial custody till 11.09.2015. Case fixed for 11.09.2015 for arguments.” 21. It would be relevant to mention the endorsement made by the defence counsel (Amicus Curiae) on dated 10.09.2015, which reads as under: ^egksn;] dksbZ cpko lk{; ugha nsuk gSA^ 22. In view of the above discussion, it is found that no opportunity was given to the accused person to adduce defence evidence and thereby much prejudice has been caused to him. The accused/appellant was not specifically informed to lead his defence evidence on the next date i.e. on 10.09.2015. On the said date, an endorsement was made by the Amicus Curaie to the effect that do not want to give defence evidence. Endorsement made by the learned Amicus Curiae on the order sheet dated 10.09.2015 does not reflect that this endorsement was made by the counsel on the instructions of the accused and that the accused was informed or made aware about his legal rights to adduce evidence. Simply mentioning in the order to fix the case for D/E does not show that the trial court has discharged its mandatory duty cast upon it under Section 233 of Cr.P.C. Non-compliance of the mandatory provision prescribed by section 233 Cr.P.C., is a serious lapse causing prejudice to the accused person. Therefore, without applying with the statutory provision as prescribed by section 233 Cr.P.C., the conviction and sentence recorded by the learned trial Judge, cannot stand the test of law. 23. In the light of what has been stated above, I set aside the impugned judgment and order dated 13.10.2015 passed by Fast Track Court/Special Judge (POCSO)/Additional District Judge, Dehradun, in Special Sessions Trial No.17 of 2014. 23. In the light of what has been stated above, I set aside the impugned judgment and order dated 13.10.2015 passed by Fast Track Court/Special Judge (POCSO)/Additional District Judge, Dehradun, in Special Sessions Trial No.17 of 2014. The matter is remanded to the learned trial Court for re-trial from the stage provided by sections 232 and 233 Cr.P.C., after duly complying with the statutory provision as prescribed by law. It is also provided that, the learned trial Judge shall take steps to dispose of the appeal within a period of three months from the date of receipt of a copy of this judgment and the lower court record. I make it clear that I have not expressed any opinion on the merits of the case. 24. The Registry shall return the Lower Court Record along with a copy of this judgment and order to the learned trial Court immediately. 25. With the above observations and directions, the appeal stands disposed of.