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2019 DIGILAW 3058 (RAJ)

Khushwant @ Kushwant v. State of Rajasthan

2019-12-17

SANDEEP MEHTA

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JUDGMENT Sandeep Mehta, J. - Heard. Perused the material available on record. 2. The matter comes up for orders on an application filed by appellant s counsel under Section 311 read with Section 391 & 482 Cr.P.C. for summoning/recalling the prosecution witnesses. 3. The appellant herein has been convicted and sentenced as below vide the judgment dated 16.01.2017 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Merta District Nagaur in Sessions Case No.213/2016 (43/2015) Offences Sentences Fine Fine Default sentences Section 363 IPC 7 Years' Simple Imprisonment Rs. 5,000/- 1 Month's SI Section 368 IPC 7 Years' Simple Imprisonment Rs.5,000/- 1 Month's SI Section 366A IPC 7 Years' Simple Imprisonment Rs. 5,000/- 1 Month's SI Section 376 (2) (I) IPC 10 Years' Simple Imprisonment Rs.5,000/- 1 Month's SI Section 3/4 of POCSO Act 10 Year's Simple Imprisonment Rs.5,000/- 1 Month's SI 4. During trial, the statements of material prosecution witnesses viz. victim Mst. S (PW.4), IO Rampratap Mehrada (PW.5) and Smt. Sharda (PW.7), mother of the victim were recorded by the trial court on oath but no cross-examination could be carried out from these witnesses. The examination-in-chief of PW. 4 Mst. S was recorded by the trial court on 15.03.2016. On that day, the accused was not produced from judicial custody and thus, her statement could not be completed. The victim again appeared before the learned trial court on 02.05.2016, on which day, her examination-in-chief was completed. Surprisingly enough the defence counsel representing the appellant did not put even a single question in cross-examination of the victim and the right of the appellant to cross-examine the prosecutirix was closed. Later on, the accused filed an application under Section 311 Cr.P.C. which was rejected by the trial court. 5. The Misc. Petition (No.1608/2016) filed by the petitioner under Section 482 Cr.P.C. against the closure of cross-examination and rejection of the application under Section 311 Cr.P.C. was dismissed by the Coordinate Bench of this Court vide order dated 17.06.2016 observing that the prosecutrix had appeared in the trial court on four occasions and thus, she could not be repeatedly re-summoned for cross-examination. The order dated 17.06.2016 was clarified by this Court by order dated 28.11.2017 passed in S.B. Criminal Misc. Petition No.3921/2017 wherein the petitioner was given opportunity to raise all permissible objections and pleas at the appropriate stage. The order dated 17.06.2016 was clarified by this Court by order dated 28.11.2017 passed in S.B. Criminal Misc. Petition No.3921/2017 wherein the petitioner was given opportunity to raise all permissible objections and pleas at the appropriate stage. The appellant was convicted by the trial court vide judgment dated 16.01.2017 for obvious reasons as he was virtually undefended at the trial because no cross-examination was conducted from the victim and other material witnesses. 6. It is trite that in a case under the POCSO Act, the victim cannot be called repeatedly in the court for recording her evidence but the fact remains that in the case at hand, on one occasion, the prosecution was responsible for second appearance of the prosecutrix because on the first date of her examination-in-chief, the accused was not produced from judicial custody in the Court. As a matter of fact, there is a serious question mark on the admissibility of the said part of her testimony keeping in view the ratio of Hon ble the Supreme Court in the case of Atmaram vs State of Rajasthan being Criminal Appeal No.656-657 of 2019 decided 11.04.2019. 7. Every party in a criminal case has legal right to pursue his/her cause as per law whereas the accused has a fundamental right to defend himself as enshrined by Article 20 of the Constitution of India. If in a case involving offence (s) punishable under the POCSO Act or for that matter in any other criminal case, the accused is not given an appropriate opportunity to cross-examine the material witnesses, the said fundamental right would definitely be breached. 8. Thus, this Court is of the firm opinion that for ensuring a just decision of the appeal and to ensure that the principles of fair trial are not violated and the accused appellant is provided appropriate opportunity to defend himself, he deserves to be given one opportunity to cross-examine witnesses namely Mst. S (PW-4), IO Ram Pratap Mehrada (PW.5) and Smt. Sharda (PW.7) subject to the condition that he shall deposit cost of Rs.5000/- in the trial court which shall be paid to the victim on her appearance before the trial court at the time when she is summoned for crossexamination. Accordingly, the case is remitted to the trial court for recalling and for permitting cross-examination from the three witnesses Mst. Accordingly, the case is remitted to the trial court for recalling and for permitting cross-examination from the three witnesses Mst. S (PW.4), IO Rampratap Meharda (PW.5) and Smt. Sharda (PW.7) by the defence. Record be returned to the trial court forthwith. Requisite exercise in this regard shall be completed within two months from today whereafter, the record shall be returned to this Court with completed statements of the witnesses. 9. The application is allowed accordingly.