Dev Kumar Yadav @ Deva vs State
2019 Latest Caselaw 2456 Del

$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                 Judgment delivered on: 10.05.2019
+      CRL.A. 780/2018
DEV KUMAR YADAV @ DEVA                                    ..... Appellant
                                  versus

STATE                                                     ..... Respondent
Advocates who appeared in this case:
For the Petitioner :      Mr. Adit S. Pujari, Advocate.

For the Respondent:        Ms. Meenakshi Dahiya, Addl. PP for the State with
                           SI C.L. Kaphungkan, PS Keshav Puram.

CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                              JUDGMENT

SANJEEV SACHDEVA, J. (ORAL) CRL.A. 780/2018 & Crl. M.A. 4512/2019 (for summoning of witnesses)

1. Appellant impugns judgment on conviction dated 27.03.2018 and orders on sentence dated 02.04.2018 whereby, the appellant has been convicted of an offence under Section 6 Protection of Children from Sexual Offence Act (in short 'POCSO') and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 5000/-, in default, to undergo one month simple imprisonment.

2. As per the prosecution, a complaint was received on

29.01.2016, from the mother of the child victim that on 29.01.2016 at about 1.00 am, her son S... (hereinafter referred to as 'child victim), a minor boy aged about 5 years, disclosed to her that accused had called him in his room and committed sodomy with him after removing his clothes, due to which, he suffered a lot of pain and after committing this act, the accused also threatened him not to disclose about this to anyone, otherwise he would kill him. She further stated that she herself checked the anus of child victim and found some blood was oozing from it. When her husband returned home in the night at around 11.00 pm, she told him about it and thereafter, police was informed.

3. In order to prove the charge against the petitioner, prosecution examined as many as 13 witnesses. The appellant/accused did not lead any evidence in his defence. The trial court, relying on the testimony of the prosecution witnesses and also noticing the fact that there was no material cross-examination of the witnesses, held the appellant guilty and convicted him of the said offence.

4. An application under Section 391 Cr. P.C. has been filed on behalf of the appellant contending that the manner in which trial has been conducted shows that principles of natural justice have been violated and the appellant has been declined a fair opportunity of being defended. It is contended that an Amicus Curiae was appointed by the trial court on behalf of the appellant, but he did not provide the

requisite assistance.

5. Digital Copy of the Trial Court was requisitioned and examined.

6. Perusal of the cross-examination of the witnesses shows that some witnesses have not been cross examined and for others, there is very sketchy cross examination and even for those witnesses who have been cross examined, on material aspects there is no cross examination at all.

7. PW-3 i.e. the victim has been cross-examined as under:-

"Mere Papa ke pass rickshaw hai. Ye kehna sahi hai ki mere papa ki rickshaw accused ke ghar ke saamne hi khadi rehti hai. Ye baat sahi hai ki accused ko achha nahi lagta tha ki mere papa ki rickshaw uske ghar ke saamne khadi ho aur is baat per mere papa ki aur Deva uncle ki ladai hui thi. Ek baar main apne bhai ke sath khelte khelte cycle per muh ke bal gir gaya tha. Ye kehna galat hain ki papa ke kehne per maine aaj Deva uncle ke baare main jhoth bola hai. Ye kehna galat hai ki Deva uncle ne mere sath kuchh nahi kiya".

8. PW-4, mother of the child victim who had extensively deposed and exhibited several documents has been cross-examined as under:-

"It is correct that my husband has a rickshaw. It is wrong to suggest that my son S received injury while playing with his brother. It is wrong to suggest that accused Dev Kumar has been falsely implicated in the present case as my husband used to have quarrel with

him. It is wrong to suggest that no such offence was committed by accused Dev Kumar. It is wrong to suggest that I am deposing falsely at the instance of my husband".

9. PW-5, father of the child who has also deposed extensively cross-examined as under:-

"It is correct that I have a rickshaw. It is wrong to suggest that my son S received injury while playing with his brother. It is wrong to suggest that accused Dev Kumar has been falsely implicated in the present case as I used to have quarrel with him over parking of rickshaw. It is wrong to suggest that no such offence was committed by accused Dev Kumar. It is wrong to suggest that I am deposing falsely in order to implicate the accused."

10. There is no cross-examination done of the witnesses who have deposed as PW-6, PW-8, PW-9 and PW-11.

11. The Investigating Officer, who was examined as PW-10 and who has exhibited material documents, has been cross-examined as under:-

"It is correct that place of incident is a residential area. I did not record any statement of any neighbour. During the course of inquiry, I did not find any person who had seen the victim child while entering the room of accused or going away from the same.

It is wrong to suggest that during the course of investigation, I came to know that the victim child sustained injury due to a fall on a bicycle while playing with other children. It is wrong to suggest that the blanket was planted in the present case after due fabrication. It is

wrong to suggest that in collusion with the parents of victim child, I had falsely registered a case against the accused or that I am deposing falsely. It is wrong to suggest that exhibits were fabricated and tempered at the police station prior to sending the same to FSL."

12. PW-13 who is the doctor who had medically examined the victim and prepared the MLC has been cross-examined as under:-

"It is wrong to suggest that during play, these injuries are possible, if the child falls on a bicycle. It is further wrong to suggest that I mentioned the alleged history on the MLC as told to me by the accompanying police official."

13. It is thus apparent from the record that on material aspects of the case there is either no cross-examination or no effective material cross-examination of the witnesses.

14. Even the trial court in the impugned judgment, while discussing the evidence produced by the prosecution and the testimony of the witnesses, has recorded that there is no material cross-examination of some of the witnesses.

15. The trial court in the impugned judgment records that for PW-1, PW-2, PW-5, PW-6, PW-7, PW-8, PW-9, PW-11 and PW-12 there is either no cross-examination or no material cross-examination.

16. The judgment clearly reflects on the manner in which the trial has been conducted.

17. The appellant has been charged of an offence under Section 6

of POCSO Act, which is punishable with an imprisonment of not less than 10 years and may extend to imprisonment to life.

18. When a person is charged with an offence which may entail punishment up to life, it is incumbent upon the State as also the trial Courts to ensure that a fair trial is held and a fair opportunity to defend is afforded to every accused.

19. Accused is entitled to free legal aid in case the accused is not in a position to engage a private counsel. In the present case, the appellant was entitled to a fair opportunity of defending himself. he did not engage a private counsel but was provided a legal aid counsel.

20. The manner in which the cross-examination has been conducted on the part of the accused by Amicus Curiae clearly shows that no serious efforts were made to defend the accused. If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.

21. Reference may be had to the judgment of the Supreme Court in Brig. Sukhjeet Singh (Retd.) MVC Vs. The State of Uttar Pradesh & Ors. 2019 SCC Online SC 72 in Crl. Appeal No. 148 of 2019, whereby the Supreme Court has laid down that power to take

additional evidence under Section 391 Cr. P.C. is with an object to appropriately decide the appeal and to secure ends of justice.

22. The Supreme Court referring to an earlier judgment in Rajeshwar Prasad Misra Vs. State of West Bengal & Anr. AIR 1965 SC 1887 held that additional evidence may be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it.

23. No doubt, the appellate court would allow an application under Section 391 Cr. P.C. very sparingly and only in suitable cases.

24. In my view the present case, as noticed above, is one of the rare case where clear failure of justice has occurred on account of complete non-effective cross-examination of the prosecution witnesses. Further, the trial court also erred in not remedying the situation at the appropriate stage by appointing another Defence counsel to conduct the cross-examination of the witnesses.

25. Reference may also be had to the judgment dated 21.02.2014 of a Division Bench of this Court in State Vs. Sanjay Kumar Valmiki: Death Sentence Reference No. 3 of 2012 (2014 SCC OnLine Del 794 : 2014 Cri LJ (NOC 396) 120) directed a retrial, where the Bench found that failure of justice had occasioned. The Division Bench quoted the following paragraphs of the judgment of the Supreme Court in Zahira Habibullah Sheikh Vs. State of Gujarat (2004) Crl. L.J. 2855) as

under: -

"35. .....The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice -- often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no

analytical, all-comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."

26. Further, reference may also be had to the judgment of this Court in 'Mumtaz vs. State (Govt. of NCT of Delhi)', 2013 (2) JCC 1308 and 'Nav Rattan Vs. State (NCT of Delhi', 2014 (2) JCC 1193 wherein in similar circumstances, this Court noticing that there was either no or ineffective cross-examination by the legal aid counsel, issued directions for an opportunity to the accused to cross-examine the witnesses afresh.

27. In view of the above, I am of the view that failure of justice has occurred on account of lack of effective cross examination of the prosecution witnesses. The impugned judgment in the facts of the case

cannot be sustained. Accordingly, the impugned judgment dated 27.03.2018 and order on sentence dated 02.04.2018 are set aside.

28. The matter is remanded to the Court of Additional Sessions Judge for a re-trial. Trial shall commence from the stage of the cross- examination of the prosecution witnesses. It is clarified that the transcript of the evidence already recorded will remain and can be referred to by counsel on either side. A proper opportunity shall be given to learned counsel for the accused to cross-examine the prosecution witnesses afresh. This would include the right of the prosecution to seek re-examination of any of the witnesses in accordance with law. Further the right of the accused to lead evidence in accordance with law is also reserved.

29. This Court appoints Mr. Adit S. Pujari, Advocate on the panel of the Delhi High Court Legal Services Committee as the Amicus Curiae for the accused/appellant in the Trial Court.

30. The Matter shall be listed before the District & Sessions Judge, Rohini Courts (North-West), Delhi on 20.05.2019 for being assigned to the Court of learned Additional Sessions judge, other than the one who delivered the impugned judgment on conviction and order on sentence which have been set aside.

31. The accused/appellant shall also be produced from judicial custody in that Court. It is further clarified that in case the accused/appellant wishes to engage any other counsel of his choice

then the option would be made available to him by the learned District & Sessions Judge, Rohini Courts (North-West), Delhi.

32. The concerned trial court is directed to expedite the trial and endeavour to conclude the same within a period of three months from the date of first assignment and a judgment be delivered not later than one month of conclusion of the trial.

33. The appeal is, accordingly, allowed in the above terms. The appeal along with the pending application is accordingly disposed of.

34. This Court appreciates the assistance rendered by Mr. Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee as also by Ms. Meenakshi Dahiya, Advocate, Addl. PP for the State.

Crl. M. (Bail) 1190/2018 (for suspension of sentence)

Application for suspension of sentence is rejected.

However, it would be open to the appellant to apply for grant of bail before the concerned court and on such an application being moved, the same would be considered in accordance with law, without being influenced by anything stated in this judgment.

35. Order Dasti under signatures of the Court Master.

MAY 10, 2019                             SANJEEV SACHDEVA, J
'rs'