Md. Nurul Islam vs The State Of Tripura
2021 Latest Caselaw 890 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                           Crl.Petn. No.39/2021

Md. Nurul Islam
                                                            ----Petitioner(s)
                                     Versus
The State of Tripura
                                                         -----Respondent(s)

For Petitioner(s)              : Mr. Sankar Lodh, Advocate.
For Respondent(s)              : Mr. S. Ghosh, Addl. P.P.

       HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

                                  Order

10/09/2021

This criminal petition is filed by the original accused against

whom a sessions trial is going on. He is facing charges under the POCSO

Act. The examination and cross-examination of the victim girl took place

before the Special (POCSO) Judge on 12.04.2021. It is not the case of the

petitioner that during such cross-examination the advocate of the petitioner

was not permitted full liberty to put all relevant questions to the witness.

However, shortly after the recording of evidence of this witness (PW-1) was

completed, the petitioner filed an application before the Special Judge on

17.04.2021 stating that at the time of cross-examination due to inadvertence

defence counsel had not put questions to the witness regarding omissions

and contradictions. According to the petitioner, the witness had made

following statements in the examination-in-chief:

"(i) "About one year back one day on Saturday when I was in my classroom I have been called through three students of our school by Najrul Islam, teacher of our school at about 09.00 A.M."

(ii) "Thereafter while Najrul Islam came out of the class room of Class III, I met with him in the veranda of our school and he took me to a vacant class room situated at the extreme end of the school."

(iii) "Subsequently I returned home and I reported the matter to my mother who informed the matter to the police.""

The defence ought to have brought on record the

improvements/contradictions in respect of these statements of the witness

which was not done. The petitioner, therefore, prayed for recall of the said

witness for further cross-examination. This application was dismissed by the

learned Judge by impugned order dated 17.04.2021 dismissing the

application on the ground that during cross-examination sufficient

opportunity was given to the defence counsel and considering the fact that

the victim girl is a minor, her further cross-examination should not be

permitted.

Learned counsel for the petitioner Mr. Sankar Lodh submitted

that due to the error on part of the advocate of the petitioner important

omissions were not brought on record which would damage the petitioner's

defence incurably. He, therefore, requested that a chance may be granted for

further cross-examination on appropriate terms and conditions.

Learned Addl. Public Prosecutor Mr. S. Ghosh opposed this

petition and supported the order passed by the Special Court.

Section 231 of the Code of Criminal Procedure pertains to

evidence for prosecution. Sub-section (2) of Section 231 provides that the

Judge may, in his discretion, permit the cross-examination of any witness to

be deferred until any other witness or witnesses have been examined or

recall any witness for further cross-examination. Under sub-section (2) of

Section 231 of Cr.P.C. thus the Judge-in-Charge of a trial has discretionary

power to permit further cross-examination of a witness after recall. Such

powers must be exercised in appropriate cases but with caution. When the

petitioner has urged that compared to the statements of the witness recorded

under Section 161 and 164 of Cr.P.C., there were certain improvements in

her deposition which were not brought on record due to inadvertence of the

advocate of the defence, in my opinion, the petitioner deserves a chance for

further cross-examination failing which there would be irreparable damage

done to the petitioner. The effect of further evidence of the victim even after

permitting cross-examination, cannot be foreseen at this stage and the same

must be left to the trial Judge for overall assessment of the evidence once

full evidence is recorded. This observation was necessary in order to ensure

that none of the observations made above would prejudice either the

accused or the prosecution in the final evaluation of the evidence that may

be brought on record.

The permission for further cross-examination after recall of the

witness, however, must be on certain stringent terms. This is primarily

because of the reasons that the petitioner has not alleged any curtailment of

his right of cross-examination at the first instance and the victim girl

happens to be minor of very tender age. She must be protected from any

further harassment to the maximum extent possible. The petitioner also must

compensate the victim girl for further cross-examination process.

Under the circumstances, the request of the petitioner for recall

of the witness is allowed with following conditions:

(i) The petitioner shall pay a cost of Rs.25,000/- to the

family of the victim girl;

(ii) The defence shall be allowed only three questions during

such further cross-examination which shall be confined to the three areas of

alleged omission/improvement/contradiction referred to in the earlier

portion of this judgment;

(iii) Such further cross-examination may be at the choice of

the victim to be exercised through her family guidance through video

conferencing. In other words, if the family of the victim girl chooses not to

appear personally before the Court for such further cross-examination, the

learned Special Judge shall make special arrangements for recording her

further evidence through video conferencing by ensuring that she is kept

alone in a room and she is protected against any possible tutoring.

With these directions, petition is disposed of.

Pending application(s), if any, also stands disposed of.

(AKIL KURESHI), CJ

Pulak