Uttarakhand High Court
CRLA/231/2021 on 24 March, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SRI JUSTICE S.K. MISHRA, A.C.J.
AND
SRI JUSTICE R.C. KHULBE, J.
24TH MARCH, 2022
IA No. 01 OF 2021
IN
CRIMINAL APPEAL No. 231 OF 2021
Between:
Mohit.
...Appellant
and
State of Uttarakhand.
...Respondent
Counsel for the appellant. : Mrs. Neetu Singh, the learned counsel.
Counsel for the respondent. : Mr. J.S. Virk, the learned Deputy
Advocate General assisted by Mr.
Rakesh Joshi, the learned Brief Holder
for the State of Uttarakhand.
Upon hearing the learned Counsel, the Court made
the following
JUDGMENT : (per Sri S.K. Mishra, A.C.J.)
This matter has been listed today for orders,
and for hearing on the Bail Application (IA No. 01 of
2022) filed by the appellant under Section 389 of the
Code of Criminal Procedure (hereinafter referred to as
"the Cr.P.C."). The appellant has been convicted for the
offences under Sections 376(3) and 506 of the Indian
Penal Code (for short "the IPC") and Section 3/4 of the
Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as the "POCSO Act"). For the
offence under Section 376(3) IPC, the appellant has
been sentenced to twenty years' rigorous imprisonment
with a fine of Rs. 50,000/-, and in default of payment of
fine to undergo further six months' additional
imprisonment. For the offence under Section 506 IPC,
the appellant has been sentenced to undergo two years'
rigorous imprisonment with a fine of Rs. 5,000/-, and in
default of payment of fine to undergo further six months'
additional imprisonment. Since the punishment
prescribed under Section 376(3) IPC and Section 3/4 of
the POCSO Act is same, the learned Trial Judge
proceeded to sentence the appellant only under Section
376(3) IPC.
2. During the course of the arguments, it was
brought to our notice that the victim-girl was not cross-
examined at all by the appellant, and his application to
re-call the witness for cross-examination was rejected by
the learned Trial Judge on 24.02.2021 on the ground
that it is provided under Sub-Section (5) of Section 33 of
the POCSO Act that repeated attendance of the child
should be avoided.
3. We have carefully examined the order-sheet
of the case. The case was posted to 09.08.2019. On
that day the examination-in-chief of the victim-girl was
taken up. Further, the deposition itself shows that, on
that day, the Presiding Officer of the Court of Special
Judge POCSO/FTC/ADJ got engaged in some other cases
in the midst of the examination of the child witness.
Neither the order-sheet, nor the deposition (comments
on the deposition), shows that the appellant's lawyer
was not ready to cross-examine the child witness. So,
we presume that, on that day, the learned counsel for
the accused-appellant was present, but the learned
Court itself took up other cases for trial etc. leaving the
examination of the child halfway.
4. The case was deferred to 14.08.2019, for
cross-examination of the child. While rejecting the
application to re-call the child, the learned Additional
Sessions Judge/FTSC Roorkee took into note Sub-
Section (5) of Section 33 of the POCSO Act, which
provides that the Special Court shall ensure that the
child is not repeatedly called to testify in the Court.
5. In this case, we find that when the
examination-in-chief of the child was done on the first
date, i.e. on 09.08.2019, it was because of the action of
the learned Judge presiding that the case was adjourned
to 14.08.2019. The learned Judge presiding could have
firstly taken up the said case, and only after cross-
examination of the victim-girl, she could have engaged
herself in other works. We could not understand why
the child was asked to again report to it on 14.08.2019
for cross-examination, when on 09.08.2019 itself the
entire cross-examination could have been done.
6. On 26.08.2019, an application for re-calling
the child witness was filed by the appellant. We have
also carefully examined the order-sheet maintained by
the learned Additional Sessions Judge/Special Judge,
POCSO in the trial, and it is apparent therefrom that the
matter was never taken up by the Court for
consideration. The matter was taken up only after a
lapse of about 1½ years, when the application for re-
calling the child witness was dismissed by the learned
Additional Sessions Judge/FTSC. We note that, by that
time, the learned Judge presiding the Special Court was
transferred. In totality, we find that the learned
Additional Sessions Judge/FTSC presiding the matter
was not sensitive to the needs and requirements of a
child while examining her.
7. In that view of the matter, it was erroneous
on the part of the learned Additional Sessions
Judge/FTSC to reject the application to re-call the child
witness only on the ground that Sub-Section (5) of
Section 33 of the POCSO Act provides that repeated
attendance of the child should be avoided. Moreover, an
accused, who is arraigned for committing serious offence
like rape and penetrative sexual intercourse, should be
given an adequate opportunity of cross-examining the
witness.
8. Hence, in the interest of justice, we hold that
this Criminal Appeal should be allowed. Accordingly, the
order dated 24.02.2021 passed in the application to re-
call the child witness, and the final judgment dated
28.06.2021 convicting the appellant for the offences
under Sections 376(3) and 506 IPC and Section 3/4 of
the POCSO Act, 2012, are hereby set-aside. The
application dated 26.08.2019 to re-call the child witness
is, hereby, allowed.
9. However, we hasten to add that, while cross-
examining the child witness on re-call, the learned
Additional Sessions Judge/Special Judge POCSO shall
apply the principles and directions issued by the Hon'ble
Supreme Court in the case of Smruti Tukaram Badade
v. State of Maharashtra & Anr.; Criminal Appeal
No. 1101 of 2019 dated 11.01.2022.
10. We also observe that, while re-calling the child
witness for cross-examination, the learned Additional
Sessions Judge/Special Judge POCSO may take into
consideration the use of Mobile Van that has been
provided by this High Court, along with the State Legal
Services Authority, for recording of evidence, if it is
considered appropriate by the learned Additional
Sessions Judge.
11. With such observations, this Criminal Appeal
is, hereby, allowed. The order dated 24.02.2021 passed
in the application seeking re-call of the child witness,
and the final judgment dated 28.06.2021 convicting the
appellant, are hereby set-aside, as stated above. The
Lower Court Records be sent back to the concerned
Court for trial according to law, and the observations
made by us in this judgment.
12. In sequel thereto, all pending applications also
stand disposed of.
________________
S.K. MISHRA, A.C.J.
_____________
R.C. KHULBE, J.
Dt: 24th March, 2022
Rahul
(Urgent certified copy of this
judgment be provided to the learned
counsel for the parties, as per Rules.)
