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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION (STAMP) NO. 3066 OF 2020
Satpalsingh Surajsingh Bawari, Aged 19 years, Occupation Student, Residing at Survey No. 10, Ashoknagar, Yerwada, Pune ...Applicant
Yerwada Police Station, Pune ...Respondent
Mr. Aabad H. Ponda, Sr. Advocate with Mr. Shailesh Kharat for the
Applicant
Ms. S. V. Sonawane, A.P.P for the Respondent–State
ORAL ORDER :
JUDGMENT
1 Heard learned senior counsel for the applicant and the learned A.P.P for the respondent-State.
2 Rule. Learned A.P.P waives notice for respondent-State. SQ Pathan 1/15 Shagufta
Q.
3 Rule is made returnable forthwith, by consent and is taken up for final disposal.
4 By this application preferred under Section 482 of the Code of Criminal Procedure (`Cr.P.C’), the applicant herein is seeking the following substantive relief: “c. This Hon’ble Court may be pleased to kindly set aside the order passed by the Special Court for POCSO At Pune, dated 02-09-2020 refusing to recall P.W. 1 to P.W. 9 for further cross examination and may be pleased to allow the said application at Exhibit 73.”
5 Mr. Ponda, learned senior counsel for the applicant submitted that the applicant is facing a serious prosecution, both-under the provisions of the Indian Penal Code (‘IPC’) as well as under Protection of Children from Sexual Offences Act (‘POCSO’). He submitted that under POCSO, there are statutory legal presumptions, thereby causing a heavy burden on the applicant to prove his case/innocence. He submitted that in the peculiar facts, recalling of the witnesses is necessary, considering that the former advocate representing the applicant, had not put up any defence/omissions/contradictions/improvements to the witnesses to prove his case. He submitted that the minimum sentence with which the applicant SQ Pathan 2/15 can be punished, in the event, the charges are proved against the applicant, is 10 years. According to the learned senior counsel, the applicant was not even produced whilst recording the evidence of the witnesses, either physically or through video-conferencing, nor was he exempted under the provisions of Cr.P.C, thus, causing serious prejudice to the applicant in the conduct of the trial. Mr. Ponda submitted that the applicant’s right to be present during the recording of evidence of witnesses i.e. PW 1 to PW 6 was violated under Section 273 Cr.P.C. He submitted that it is necessary in the facts, to recall and cross-examine the witnesses for a just decision in the case and that if the witnesses are recalled, it would not amount to filling up the lacunaes in the said case. He further submitted that witnesses can be recalled at any stage under Section 311 of Cr.P.C. Learned senior counsel relied on the judgments in the cases of Zahira Habibullah Sheikh vs. State of Gujarat (SC)1, The State of Maharashtra vs. Deepti Anil Devastali (HC)2, Atma Ram & Ors. vs. State of Rajasthan (SC)3 and The State of Maharashtra vs. Raju @ Rajkumar Keshavrao Landge (HC)4, in support of his submission. In the facts, having regard to what is stated aforesaid, serious prejudice is caused to the applicant in his defence.
2 Confirmation Case No. 1/2008 dated 16/09/2008 3 Criminal Appeal Nos.656-657 of 2019 dated 11.4.2019 4 2019 All MR (Cri) 970 SQ Pathan 3/15 6 Learned A.P.P opposed the application. She submitted that no interference was warranted in the impugned order rejecting the applicant’s application seeking recall of the witnesses. Learned A.P.P does not dispute the fact that the applicant was never produced before the Special Judge, either physically or through video-conferencing nor was any exemption granted by the Court, when PW 1 to PW 6 were examined, however, her submission is that the applicant’s advocate never raised any objection with regard to the same. Learned A.P.P relied on the judgment of the Apex Court in the case of State (NCT of Delhi) vs. Shiv Kumar Yadav & Anr.5.
7 Perused the papers. An FIR was lodged with the Yerwada Police Station, Pune bearing C.R. No. I-909/2017 on 15th December 2017 as against the applicant alleging offences punishable under Sections 376(2) (n), 506 of the IPC and Section 5(l)(j) and 6 of POCSO. The applicant was arrested in connection with the said offence on 13th March 2018 and after completion of investigation, charge-sheet was filed against the applicant. Thereafter, the learned Special Judge, Pune, commenced with the applicant’s trial i.e. Special Child Protection Case No. 221 of 2018. The learned Special Judge framed charge against the applicant on 10th December 2018 and proceeded to examine the witnesses. It is not in
SQ Pathan 4/15 dispute that the prosecution examined 9 witnesses in support of its case, after which, the learned Special Judge proceeded to record the 313 statement of the applicant. The applicant’s answers to 313 questions was that as he had not heard the evidence, he could not reply to the questions posed by the learned Judge. Admittedly, the applicant was neither produced before the learned Special Judge whilst recording the evidence of witness Nos. 1 to 6, either physically or through video-conferencing. As noted earlier, during recording of the 313 statement, the applicant refused to answer any question, as he had not heard the evidence recorded as against him. It is at this stage that the applicant filed an application (Exhibit 73) before the learned Special Judge under Section 311 Cr.P.C for recalling of the 9 witnesses, which application was rejected by the learned Special Judge vide order dated 2nd September 2020. Hence, this application.
8 The learned Special Judge, whilst rejecting the said application, observed that during the recording of the cross-examination of the witnesses, the advocate representing the applicant, had not made any grievance with regard to the applicant’s absence; that change of advocate cannot be a ground for recall of witnesses; that recall of witnesses is not permissible to fill up the lacunaes; that it is not clarified as to on which points the new advocate intends to cross-examine the said witnesses; that SQ Pathan 5/15 there is no provision in law which permits further cross-examination; that the new lawyer cannot doubt the competence of the earlier advocate; that although the applicant was not produced, he was represented by an advocate; that the previous advocate was given full opportunity to crossexamine the witnesses; and, that the applicant's advocate never objected or raised any objection about the absence of the applicant during recording of the evidence and voluntarily conducted cross-examination. Based on the aforesaid premise, the learned Special Judge rejected the applicant’s application seeking recall of the witnesses.
9 During the course of hearing, learned senior counsel for the applicant did not press for recall of witness Nos. 1, 3, 4 and 8. However, in the peculiar facts of the case, he pressed for recall of witness Nos. 2, 5, 6, 7 and 9, as their recall was necessary for the just decision of the case. The witnesses whose recall is sought are PW 2, a doctor from the Sassoon Hospital, who examined the prosecutrix; PW 5-the first informant (mother of the victim); PW 6-the prosecutrix; PW 7-the doctor who produced the DNA report and PW 9-the Investigating Officer.
10 The law with regard to when a witness can be recalled under Section 311 Cr.P.C, is no longer res integra. A witness can be examined at SQ Pathan 6/15 any stage of any inquiry, trial or other proceeding, if the said witnesses are essential for a just decision of the case. Admittedly, a witness cannot be recalled for filling up the lacunaes nor a witness can be recalled merely because the advocate did not fare or perform well in the crossexamination.
11 In the instant case, the applicant aged 19 years, a student, is facing prosecution for serious offences punishable under Sections 376(2) (n), 506 of the IPC and Section 5(l)(j) and 6 of POCSO. The minimum sentence that can be imposed on the applicant, in the event, the prosecution case is proved against him, is 10 years. Under the POCSO Act, there are certain statutory legal presumptions that are raised against an accused. The said presumptions are mandatory. Admittedly, in the present case, the applicant was not produced before the trial Court from jail, either physically or through video-conferencing, when prosecution witness Nos. 1 to 6 were examined. The advocate representing the applicant had also not filed any application seeking the applicant’s exemption during the recording of the evidence of these witnesses i.e. PW 1 to PW 6. A perusal of the cross-examination of the witnesses whose recall is sought, shows that the defence of the applicant has not been put to the said witnesses nor has any denial/omission/contradiction/improvement put to the said witnesses. SQ Pathan 7/15
12 As far as the evidence of PW 2 is concerned, the said witness is a doctor from Sassoon Hospital, who had examined the victim girl and has spoken about her age. There is a single line question put in cross to the said witness, who has in detail in the examination-in-chief, deposed the history given to her by the victim and the injuries found on the victim girl and the medical certificate issued by her. It’s a single line cross. No questions have been put to the said witness with respect to the applicant’s case.
13 As far as PW 5, first informant i.e. the mother of the victim girl is concerned, the said witness has produced the birth certificate of the victim girl from the Municipal Corporation. As per the Juvenile Justice (Care and Protection of Children) Act, the birth certificate required to be produced is a certificate from the school or matriculation or equivalent certificate of the concerned examination or Board, if available and in absence thereof, the birth certificate issued by the Corporation or the Municipal Authority or Panchayat. There is no cross-examination with respect to the certificate produced nor a single suggestion or denial/contradiction/omission put to the said witness. Infact, the case of the applicant itself has not been put to the said witness. SQ Pathan 8/15
14 As far as PW 6, the prosecutrix is concerned, she has deposed that she was in a love relationship with the applicant and that the applicant had taken her to a garden in 2017 and despite refusing physical relations, he had physical relations with her. Although the examination-in-chief of the said witness runs into more than 2 pages, the cross-examination of the said witness is of 4-5 lines. Some formal questions have been asked, however, no suggestions of denial have been given nor any question with respect to her age put to the said witness.
15 As far as PW 7-the doctor who produced the DNA report is concerned, no denials have been put nor any case/suggestion put to the said witness.
16 As far as PW 9, the Investigating Officer is concerned, he has not been cross-examined at all. It appears, that when the applicant’s advocate filed an application seeking an adjournment, the learned Special passed an order of `no cross’. Thus, PW 9 has not been cross-examined at all.
17 A perusal of the evidence of the aforesaid witnesses show that no defence of the applicant has been put to any of the said witnesses nor SQ Pathan 9/15 any denials/improvements/contradictions/omissions brought on record. There is also no cross with respect to the age of the victim girl. In the absence of any cross with respect to what is stated hereinabove, there is every possibility that the applicant could suffer serious prejudice.
18 It also appears that the earlier advocate appearing for the applicant was an inexperienced lawyer, who had become a lawyer in 2018. It is argued by the learned counsel for the applicant that the earlier advocate had misrepresented to the applicant that he was practicing as an advocate for about 6-7 years and hence was engaged by the applicant to represent him in the said case. It appears that the applicant has filed a complaint with the Pune Bar Association in respect of the misrepresentation made by the advocate that he was a practicing advocate for about 6-7 years, when infact he had become a lawyer only in 2018.
19 Having regard to the aforesaid, in the peculiar facts and having perused the evidence of the said witnesses i.e. PW Nos. 2, 5, 6, 7 and 9, I am of the opinion that it is essential for a just decision of the case, to permit the applicant to cross-examine the said witnesses i.e. PW Nos. 2, 5, 6, 7 and 9. The object of any cross-examination is to elicit truth. The role of a defence lawyer in a criminal trial is crucial and critical. It is SQ Pathan 10/15 undoubtedly an important role, for it is through his cross-examination that he tries to bring out the truth before the Court. Absence of proper cross by an inexperienced or novice lawyer or one with no professional experience, can at times result in miscarriage of justice. In any criminal trial, the courts have to strike a balance between the rights of an accused and that of the victim. In the present case, the applicant was neither produced physically nor through video-conferencing, when PW 1 to PW 6 were examined. Whether or not the applicant’s advocate had insisted on the applicant’s presence or not during recording of evidence, is not of much significance. The roznama does not reveal that the applicant’s erstwhile advocate had filed any application seeking his exemption during recording of evidence of PW 1 to PW 6. The right of an accused to watch the prosecution witnesses depose is a valuable right. Section 273 Cr.P.C states, that evidence to be taken in presence of the accused, except as otherwise expressly provided or when personal attendance is dispensed with. In the present case, Section 273 stands violated. There is an infringement of the salutary principle laid down in Section 273. It was the bounden duty of the learned Special Judge to ensure that the applicant was either present in-person or through videoconferencing, having regard to the fact, that the applicant was facing serious charges for the alleged offences punishable under the IPC and POCSO, where the minimum sentence for one of the offence is 10 years SQ Pathan 11/15 and also having regard to the statutory presumptions, that will be raised in the said criminal trial. The learned Special Judge cannot be a mute spectator and merely record evidence. It was his duty to ensure that the applicant gets a fair trial. Infact, the applicant when questioned under Section 313 Cr.P.C, has not answered a single question put to him, and stated that he had not heard the evidence, as he was not produced before the Court. In the facts, having regard to what is stated aforesaid, serious prejudice is caused to the applicant in his defence.
20 As far as the judgment relied upon by the learned A.P.P in the case of State (NCT Of Delhi) vs. Shiv Kumar Yadav & Anr. (supra) is concerned, the facts in the said case were different and as such, the said case is clearly distinguishable from the facts of the present case.
21 Infact, in the case of Deepti Anil Devastali (Supra), the Bombay High Court, whilst hearing an appeal against conviction and confirmation case against the accused therein, remitted the matter back to the trial Court and permitted recall of certain witnesses, as they were essential for the just decision of the case. SQ Pathan 12/15
22 In The State of Maharashtra vs. Raju @ Rajkumar Keshavrao Landge (Supra), this Court, in an appeal against conviction, after noting that no efforts were made to bring on record the inconsistencies, contradictions and omissions in the cross-examination of the witnesses and after finding that the lawyer representing the accused therein was totally inexperienced in conducting the sessions case, remitted the matter back to the Special Court to conduct a de novo trial from the stage of framing of charge.
23 In the present case, no effort appears to have been taken by the advocate on record, to either put up the applicant’s case/denials/inconsistencies/contradictions or omissions whilst crossexamining the said witnesses. The opportunity to conduct a crossexamination, cannot be illusory. The object of Section 311 for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. In the facts, it is necessary to recall PW Nos. 2, 5, 6, 7 and 9 for their cross-examination, for the reasons stated hereinabove, as the same is essential for a just decision in the case. SQ Pathan 13/15
24 Considering the aforesaid, the application is allowed and the following order is passed: ORDER (1) The impugned order passed in Special Child Protection Case No. 221 of 2018 by the learned Special Judge dated 2nd September 2020 is hereby quashed and set-aside; (2) The order of `no cross’ of PW 9, passed by the learned Special Judge is also set aside; (3) The learned Special Judge, Pune to issue witness summons for recalling Nos. 2, 5, 6, 7 and 9 for their cross-examination, in the light of the observations made in this order; (4) After the aforesaid witnesses have been cross-examined the learned Judge to record the 313 statement of the applicant; (5) All parties to cooperate with the learned Special Judge in the expeditious disposal of the trial. SQ Pathan 14/15
25 Rule is made absolute in the above terms.
26 Application is disposed of accordingly.
27 All concerned to act on the copy of this order, REVATI MOHITE DERE, J. SQ Pathan 15/15