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2018 DIGILAW 856 (RAJ)

Mukesh Kumar v. State of Rajasthan

2018-03-23

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal has been filed against the judgment and order dated 16.7.2016 passed by the court of Special Judge (Protection of Children from Sexual Offences Act, 2012) Kota, whereby the accused appellant has been convicted and sentenced in the manner indicated below:- Under Section 363 IPC To undergo three years rigorous imprisonment with a fine of Rs. 3,000/- in default thereof, to further undergo one month simple imprisonment. Under Section 366 IPC To undergo five years rigorous imprisonment with a fine of Rs. 5,000/- in default thereof, to further undergo two months simple imprisonment. Under Section 376(2) (i) & (n) IPC read with section 5(L)/6 of POCSO Act To undergo life imprisonment with a fine of Rs. 10,000/- in default thereof, to further undergo five months simple imprisonment. 2. Learned counsel for the appellant, at the very outset, has submitted that the counsel for the appellant stopped appearing before the trial court, as a result of which, statements of 8 prosecution witnesses were recorded in his absence. Though the appellant was present but due to absence of his counsel, cross-examination of not only the prosecutrix (PW-1) but also the other prosecution witnesses Smt. Badam Bai (PW-2), Dr. Arun Sharma (PW-5), Dr. Neha Chhitora (PW-6), Hansraj (PW-7), Sushri Rakhi (PW-8), Dharm Singh (PW-9) and Dinesh Kumar Nagar (PW-10) could not take place since the counsel, originally engaged by the family members of the appellant was not regularly appearing. On his application, the District Legal Services Authority, at a later stage, provided counsel to the appellant, but by that time counsel Shri Devendra Meena, engaged through the District Legal Service Authority had cross-examined Chhigan Lal (PW-11), Heera Lal (PW-12), Khem Raj Kholia (PW-13) and Brij Raj Singh (PW-14). Counsel has further submitted that immediately after counsel was engaged, he filed two separate applications, one praying for recalling of prosecutrix so that she could be cross-examined was filed on 6th June, 2016 and another application on the same date for recalling of Smt. Badam Bai (PW-2), Dr. Arun Sharma (PW-5), Dr. Neha Chhitora (PW-6), Hansraj (PW-7), Sushri Rakhi (PW-8), Dharm Singh (PW-9) and Dinesh Kumar Nagar (PW-10), for their cross-examination. Arun Sharma (PW-5), Dr. Neha Chhitora (PW-6), Hansraj (PW-7), Sushri Rakhi (PW-8), Dharm Singh (PW-9) and Dinesh Kumar Nagar (PW-10), for their cross-examination. The learned trial court vide its order dated 6th June, 2016 rejected first application and second application vide order dated 29th June, 2016 on the premises that at the time of recording the statement of prosecutrix, counsel for the appellant was not present and on the next date when she appeared, the counsel was not again present and with regard to other witnesses, the trial court observed that despite the name of the counsel being called several times, he did not appear to cross-examine the witnesses, therefore the right to cross-examine the witnesses was forfeited and now at the stage when the evidence is complete the examination of the appellant under Section 313 Cr.P.C. had been taken place, witnesses cannot be recalled. Counsel has therefor submitted that the trial of the case was vitiated because of the counsel was provided to the appellant at the later stage. The learned trial court ought to have provided legal services to appellant at the very outset when the counsel for the appellant stopped appearing and the reason for his non-appearance was that the family members of the appellant could not pay the heavy fee demanded by him. Learned counsel therefore submitted that in view of the above, the matter be remitted back to the trial Court for recalling the aforementioned witnesses for enabling the defence to cross-examine and then for passing the fresh judgment. 3. Learned Public Prosecutor though opposed the appeal and could not justify the judgment of the trial court as the accused-appellant was not immediately provided another counsel through the District Legal Services Authority. On hearing learned counsel for the appellant and learned Public Prosecutor, we find that Devendra Meena, Advocate who was provided to the accused appellant by the District Legal Service Authority indeed moved two separate applications, one for recalling of prosecutrix (PW-1) for the purpose of her cross-examination and another for recalling of Smt. Badam Bai (PW-2), Dr. Arun Sharma (PW-5), Dr. Neha Chhitora (PW-6), Hansraj (PW-7), Sushri Rakhi (PW-8), Dharm Singh (PW-9) and Dinesh Kumar Nagar (PW-10), for their cross-examination. Arun Sharma (PW-5), Dr. Neha Chhitora (PW-6), Hansraj (PW-7), Sushri Rakhi (PW-8), Dharm Singh (PW-9) and Dinesh Kumar Nagar (PW-10), for their cross-examination. In the first application, it was stated by him that on 6th April 2015, the examination in chief of the prosecutrix was completed but due to paucity of time the cross-examination was kept reserved and the matter was deferred for cross-examination of prosecutrix and thereafter she did not appear before the trial court and the trial Court on 6th June 2016, rejected the aforementioned application observing that on 6th April 2015 although the examination-in-chief of the prosecutrix was completed, the matter had to be deferred due to paucity of time but the prosecutrix was required to again appear in the court on 7th April 2015 and she actually appeared on that date but the counsel for the appellant did not appear to cross-examine her. In these circumstances, right to cross-examine was forfeited. Second application has been dismissed vide order dated 29th June 2016, in this order, the learned trial court observed that the examination in chief of Smt. Badam Bai (PW-2) was recorded on 22nd May 2015 and thereafter statements of Dr. Arun Sharma (PW-5) and Dr. Neha Chhitora (PW-6), were recorded on 24th July 2015, statements of Hansraj (PW-7) and Sushri Rakhi (PW-8), were recorded on 18th September, 2015 and the statements of Dharm Singh (PW-9) and Dinesh Kumar Nagar (PW-10), were recorded on 19th September 2015. On none of these dates, the counsel for the accused appellant appeared before the trial court for cross-examination of anyone of these witnesses before the trial court. Opportunity was given to the defence to cross-examine witnesses but his counsel deliberately did not appear before the court and thereafter the evidence of prosecution was completed. The accused appellant was examined under Section 313 Cr.P.C. and the matter was not fixed for evidence of defence. At this stage, application under Section 311 Cr.P.C. filed by the accused could not be allowed. Since no defence evidence was produced the matter was thereafter posted for final hearing. 4. The accused appellant was examined under Section 313 Cr.P.C. and the matter was not fixed for evidence of defence. At this stage, application under Section 311 Cr.P.C. filed by the accused could not be allowed. Since no defence evidence was produced the matter was thereafter posted for final hearing. 4. In our considered view, the approach taken by the trial court was wholly erroneous particularly when the learned trial court was aware that the counsel for the defence was all along absenting from the court and as many as cross-examination of 8 prosecution witnesses including of two doctors and investigating officer was not made because of any fault of the accused who appears to be rustic villager but the counsel who was engaged by family members and deliberately stopped appearing because of non-payment of his fee. 5. There was absolutely no justification for the lawyer stop appearing and refuse to cross-examine the witnesses, for the reason of non-payment of fees. Learned trial court, at the very outset, should have provided an amicus curiae through District Legal Services Authority as the accused was unable to engage a counsel. But the trial court for substantial part of trial had proceeded in the absence of defence counsel which has vitiated the entire trial. In these circumstances, judgment rendered on the basis of statement of the prosecution witnesses with the opportunity being provided to defence cannot be upheld. 6. In the result, the appeal is allowed and the judgment and order dated 16.7.2016 passed by the court of Special Judge (POCSO Act) Kota is set aside and the matter is remitted back to the trial court with a direction to provide competent counsel for the accused appellant through the District Legal Services Authority, giving him opportunity to cross-examine the prosecutrix (PW-1) and also the other prosecution witnesses Smt. Badam Bai (PW-2), Dr. Arun Sharma (PW-5), Dr. Neha Chhitora (PW-6), Hansraj (PW-7), Sushri Rakhi (PW-8), Dharm Singh (PW-9) and Dinesh Kumar Nagar (PW-10) and also put of any additional circumstances emerged from their statements to the accused under section 313 Cr.P.C. and also grant opportunity to accused appellant to adduce any evidence, in defence, if he so desires. After hearing the arguments, the trial court shall pass the judgment afresh in accordance with law. 7. With the aforesaid directions, the appeal is disposed of. 8. After hearing the arguments, the trial court shall pass the judgment afresh in accordance with law. 7. With the aforesaid directions, the appeal is disposed of. 8. A copy of this order be sent to the concerned Legal Services Authority.