Narender@Ninde v. State

1. By this appeal^vi^d'' ^|.^l;','^a|lenges the judgment dated 24 March,2017passedb^heTd^^^l^ditj^rSessionsJudgeconvictingthe appellant for offence punishable under'Section 6 ofProtection ofChildren from Sexual Offences Act(POCSO)and Section 377 IPG and the order on sentence dated 31^^j'VI^:arGh,,'2^ whereby,Ae was directed to undergo rigorous imprisonmentfor a period of16 years and to pay afine of?5000/for offence punishable under Section 6 POCSO. No separate sentence was awarded for offence punishable under Section 377IPG.

2. The main ground urged by learned counsel for the appellant seeking setting aside ofthe impugnedjudgment ofconvietion and order on sentence are that the counsel for the appellant riled an application before the learned Trial Court under Section 311 Cr.P.C. for recalling the victim and the CRLA.604/2017 2022:DHC:5954 mother of the vietim, however without deeiding the said application, the learned Trial Court proeeeded to convict the appellant. Further material witnesses were examined in the absence of the learned eounsel for the appellant and hence no appropriate opportunity was given to cross-examine the said material witnesses eausing grave prejudice to the appellant.

3. A perusal ofthe order sheets ofthe learned trial eourt would reveal thatehargefor offences punishable under Section6POCSO Actand Section 377 IPG was framed against the appellant on 3'"'' November,2015 and the matter was listed for examination of the prosecution witnesses oh 5 January, 2016. On S"'' January,'2,0'16..iPW^l and 2 i.e. the victim aged 10 years and his mother respectively--werd examined and discharged., T.i?e matter wasthen listed for prosecution evidence on 12^^ February,2016 when father of the victim and allconcerhed:^octors were summoned. On 12"' February,2016 i.e. the date nextto'the examination ofPW-1 and PW-2,the appellant moved an appheatibh'-utider.Se6^ 311 Cr.P.C. for recalling of PW-1 and PW- 2 as they were npt prbperly dross-examined. On the said date PW-3 to PW-6 i.e.- fa®^of;tfc and the three Doctors were i examined,eross-examined and discharged.

4. The application ofthe appellant under,Section 311 Cr.P.C. was listed for 14'" March,2016,however,thereaftehthe said application was not taktj^ up. On the next date i.e. 14'" March,2016, PW-7and PW-8 were examined and discharged and the witnesses PW-10 to PW-14 were summoned for the next date i.e. 29'" April, 2016. In the meantime, the appellant filed an application for interim bail on the ground that his wife- was suffering and vide order dated 8'" April,2016 he was granted interim bail. On 10'" May, 2016 PW-9 was examined and discharged and the matter was listed for CRL.A.604/2017 Page2of[6] <3^ th remaining prosecution evidence on 3^" June,2016. On June,2016 the appellantwaspresentoninterim bail,however, hiscounsel wasnotpresent andinthe absenceofcounsel,PW-10andPW-11 i.e.ConstableRakesh and ASI Maha Singh were examined and discharged. On the next date i.e. 4 August, 2016 due to strike, no PW was present and thus the matter was listed on 6'*'August,2016 when the appellant was present on interim bail. However,since his interim bail period was over he was taken in custody. On August,2016againlearned counselforthe appellant wasnotpresent when PW-12 and PW-13 i.e. H.gCharan Singh and Const. Sombir were examined and cross-examined by.tlie.apc'used and discharged. Examination in chiefofPW-14 was recorded apdlhis cross-examination was deferred for 23 September,2016 whenthe I.O.andPW-14were summoned. Thereafter on 23 September,2016PW:14;,whs/g^ and discharged and as the FSL result was not on record lite:^dme was directed to be filed which was filed on 9"' Novemi)et,''2di6v same date copy ofthe FSL report was handed-OAi^g,..tp.ihe;-^app the last witness i.e. the investigating officer was examirie^fi^ discharged and the prosecution evidence was closed. On 30^'' January,2017 statement ofthe appellant was recorded under Section 313 Cr.P.C. whereinjhe also stated that he did not wish to lead any deferice'evidence, hence the matter was listed for final arguments whereafter the impugnedjudgment was pronounced.

5. From the orders passed by the learned Trial Court, it is evident that despite the appellant filing the application under Section 311 Cr.P.C. for recalling PW-1 and PW-2 who were the most material witnesses on the next date itself before the Trial Court, without deciding the said application, the impugnedjudgment was passed. CRL.A.604/2017 Page3of[6]

6. A pemsalofthe cross-examination ofPW-1 andPW-2would reveal thatthere was virtually no cross-examination. AsregardsPW-1 the learned Trial Courtnoted thatkeeping in view ofthe tender age ofthe witness,the suggestionstobegiventothewitnessandthecontradictionsinhisstatement shall be given due attention at the time ofhearing ofthe final arguments. However,there was minimal cross-examination ofeven PW-2,the mother of the victim. Whether the victim and the mother were required to be recalled ornot,was requiredtobedecidedbythelearnedTrialCourtbefore the prosecution evidence was closed and thejudgment was passed. In the absence of decision on the said application, particularly the mother ofthe victim having not been eross-examihed yirtually,it can be safely held tm serious prejudice has beencausedtothe appellant.

7. Further,as noted above appellant yvas asked to cross-examinePW-10 to PW-13 whose depositions:were,recorded in the absence of learned counsel for the appellant. ■Nd,.firid,ing'h^^ been recorded qua the reason for absence ofcounsel fbr'tieap^^lanf^and in the absence ofa counsel, appellant required legal aid.,ThuscM®U on this aspect, it is evident that the appellant has been prejudiced during the trial.

8. Hon'ble Supreme Court,in the decision reported as (2012) 2 SCC 584 Mohd. Hussain vs. State (hereinafter refdfrfed as Mohd. Hussain-I) w^,,s faced with a situation wherein a judgment was delivered by the Sessions Court and the Hon'ble Supreme Court on going through the record of the proceedings and order sheets of the trial court, found that the accused was initially assisted by a counsel appointed by the learned Sessions Judge, however, midway through the case, the said counsel disappeared from the scene i.e. before the conclusion of the trial. During the said period, the CRL.A. 604/2017 of[6] accused wasnotasked bythelearned Trial Courtasto whetherhe would be abletoengageacounselorwishestohaveacounselappointedbytheCourt ThetwolearnedJudgesoftheHonhleSupreme Courtagreedthatthere was miscarriage ofjustice as a result ofthe accused not having the seivices of thecounselthroughoutthetrial, though,theydiffered ontheconsequential order.Hence,the matter wasreferred to the three Judge Bench reported as (2012) 9 see 408 Mohd. Hm.iain vs. StniP fGovt. nf Nrr of (hereinafter referred as Mohd.Hussain-II). The three Judge Bench ofthe Hon'ble SupremeCourt held that^ihpe the offence with which the accused had been charged was ofsenous nhture/the prosecution had to be taken to its logical conclusion and thus heiif&at the retrial ofthe appellant in the facts and circumstances wasii.ot dispensable.

9. Even in the present case; the.^appellant has been charged with and convicted of serious offpnce punishiabld iinder Section 6 POCSO wherein the minimum sentence'prespribe.d-ii^.years imprisonment. As the decision on his application offour material witnesses in the absence ofthe counsel,consequently,the impugnedjudgment ofeonviction and order on sentence are set,aside and the matter is remanded back to the learned Trial Court fof deciding the-application of the appellant under Section 311 Cr.P.C. and if need be recalling PW-1 and PW-2 as also permitting the cross-examination ofPW-10to PW-13 bylearned counsel for the appellant. The appellant was in custody during the course oftrial and is in custody presently also. Therefore, learned Trial Court is requested to conclude the trial expeditiously preferably within four months from the next date before it. CRL.A.604/2017 Page5of[6] oj? * •

10. Trial Court Record be sent to the learned Trial Court expeditiously through special messenger by the Registry and the matter be listed before the learned Trial Courton 21®'January,2022.

11. Appeal is disposed of.

12. Order be uploaded on the website of this Court and be conveyed to the learned Trial Court. Crl. MTBain 7877/2020 Disposed offas infructous.

JANUARY 12,2022 'ga' (MUKTA GUPTA) JUDGE X. 0- CRL.A.604/2017 Page Oof[6]