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2023 DIGILAW 548 (RAJ)

Kumbh Singh @ Kirat Singh v. State of Rajasthan

2023-02-16

MANOJ KUMAR GARG

body2023
ORDER : 1. No one has put in appearance on behalf of the respondent No. 2 even in the second round. 2. The instant criminal misc. petition has been filed by the petitioner challenging the order dated 16.07.2022 passed by learned Special Judge, POCSO Act Cases, Jodhpur, Distt. Jodhpur in Sessions Case No. 7/2021 whereby, the learned Special Judge dismissed the application filed by the petitioner under Section 311 Cr.P.C for cross-examining the victim. 3. Learned counsel for the petitioner submits that the cross-examination of the victim could not be done because the counsel for the accused-petitioner appearing before the trial court was under impression that the parties have entered into a compromise. Despite request for adjournment, the trial court closed the opportunity of the petitioner to cross-examine the victim and also dismissed the application under Section 311 Cr.P.C. Learned counsel submits that the petitioner is facing the trial under the POCSO Act so the victim is a material witness and if the petitioner is not allowed to cross-examine the victim, he will suffer irreparable loss and shall be deprived of opportunity to prove his innocence. The learned trial court without considering the matter in true perspective has closed the cross-examination of the victim. It is prayed that for just decision of the case, the petitioner may be granted one more opportunity to cross-examine the victim. 4. Per contra, learned Public Prosecutor has opposed the prayer of the petitioner and submits that the despite several opportunities, the petitioner did not cross-examine the victim and he only wants to delay the matter. However, if this Court accepts the prayer of petitioner granting him one opportunity, then sufficient cost may be imposed upon the petitioner. 5. I have heard the rival contention of the parties and gone through the material on record. 6. The petitioner is facing the trial under the POCSO Act and the evidence of victim is material in such cases. Since the right of cross-examination is a valuable right in order to prove his innocence, therefore, in these circumstances and taking into consideration the entire facts and circumstances, in the interest of justice, it will be just and appropriate to grant one opportunity to the petitioner to cross-examine the said witness. Accordingly, in the interest of justice, one opportunity is granted to the petitioner to cross-examine the victim subject to deposition of cost of Rs. Accordingly, in the interest of justice, one opportunity is granted to the petitioner to cross-examine the victim subject to deposition of cost of Rs. 2500/- before the trial court within a period of two weeks, which shall be disbursed to the victim/respondent no. 2 immediately. 7. In view of the above, the impugned order dated 16.07.2022 is hereby quashed and set aside. The trial court is directed to summon the said witness and fix the date for cross-examination. It is clarified that no further opportunity shall be granted to the petitioner for cross-examination. 8. The criminal misc. petition is disposed of. Stay petition also stands disposed of.