Sabee Alam v. State (Govt of NCT of Delhi) & Anr

1. Matter has been listed today in terms of the directions given by Hon’ble the Chief Justice in view of observations contained in [Vijay Kumar & Ors. v. State of Rajasthan] Special Leave Petition (Criminal) 773/2026 (DoD 08.01.2026).

2. The point involved in the present petition is very short and precise.

3. The accused is facing trial for committing offence of sexual assault upon a minor.

4. When the case was at the stage of recording of statement of the accused under Section 313 Cr.P.C, an application was filed by him under Section 311 Cr.P.C., seeking recalling of the victim i.e. witness Ms. B (PW-3) for further cross-examination but such request was declined.

5. Such order is under challenge.

6. When the abovesaid victim, named as Ms. B, entered into witness box on 05.08.2015, learned prosecutor made reference to her statement which she had made under Section 164 Cr.P.C. and such statement was admitted in CRL.M.C. 8849/2024 2 evidence as Ex PW-3/A. In her deposition, she also claimed that the petitioner herein had sexual intercourse with her twice, albeit, she claimed that it was with her consent.

7. Her cross-examination was deferred and when she was, eventually, cross-examined on 27.09.2018 after putting few questions, she was discharged. It’s a very sketchy cross-examination.

8. The point in the present petition is, however, limited with respect to the contents of the statement which she had made under Section 164 Cr.P.C. In her such statement, the copy of which has been placed on record, she, categorically, claimed that she and others had only roamed together and that she had not been wronged (हम चार ों Bihar में सिर्फ ़ घूमे थे और क ु छ नह ोंहुआ।).

9. Learned counsel for the petitioner submits that though the abovesaid statement has been admitted in evidence, fact remains that the then learned defence counsel did not confront the witness with respect to the contents of the statement. He does acknowledge that the then learned defence counsel should have been extra-vigilant and careful but supplements that in view of the abovesaid peculiar situation, if the opportunity to confront with her own previous statement made on oath, is not granted to the petitioner, it would amount to denial of fair trial and would be travesty of justice.

10. The cross-examination of the abovesaid witness also indicates that she got married somewhere in the year 2014. Of course, it is not always appropriate to call any such victim of sexual assault to appear repeatedly, fact remains that in view of the fact that her statement made under Section 164 Cr.P.C. completely exonerates the petitioner herein, this Court is inclined to give one last and final opportunity to the petitioner in this regard.

11. The petition is, accordingly, allowed with the direction that the CRL.M.C. 8849/2024 3 prosecution would make sincere effort to produce victim-Ms. B(PW-3) for cross-examination limited to the abovesaid aspect i.e. for confronting her with the statement made under Section 164 Cr.P.C.

12. The abovesaid order is subject to her availability and subject to the cost to be imposed by learned Trial Court. Such cost shall also take care of her traveling expenditure and her boarding in Delhi as she is, reportedly, settled in Punjab. She be summoned only after such cost is deposited with the learned Trial Court.

13. The next date before the learned Trial Court is stated to be 05.12.2026 whereas the next date in the present matter before this Court is 06.11.2026.

14. The abovesaid fixed date of 06.11.2026, in view of the abovesaid order, stands cancelled.

15. Petition stands disposed of in aforesaid terms.