BABLU TIWARI Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) The present petition under Article 226 of the Constitution of India read with Sec. 482 of the Code of Criminal Procedure, 1973, has been instituted by the petitioner seeking the following reliefs: -

(2.) The brief facts of the case are that an FIR No. 545/2016 was registered against the petitioner on 2/9/2016 with the Police Station Punjabi Bagh under Ss. 354/354A of the Indian Penal Code, 1860 (IPC) and Ss. 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) alleging that on 31/8/2016, when the prosecutrix was returning from tuition, an unknown male person touched the breasts of the prosecutrix and attempted to flee, however, the prosecutrix caught hold of the said unknown person and raised alarm, as a result of which, a huge crowd gathered and, in the meanwhile, the prosecutrix phoned her father who, thereafter, arrived at the place of the incident and called the Police and the petitioner was apprehended on 31/8/2016, on the same date of the incident. It is further alleged that the statements of the prosecutrix and her father were recorded on 2/9/2016 at Police Station Punjabi Bagh.

(3.) It is submitted by learned counsel for the petitioner that by admitting by and large all the evidences of the prosecution without the knowledge of the petitioner and refusing to bring out the defence evidence, the defence counsel of the petitioner, who was representing him in the trial court, virtually conceded to the case of the prosecution. It is further submitted that the defence counsel of the petitioner did not build any defence and failed to demolish the case of the prosecution, therefore, the petitioner did not get the fair opportunity to establish his defence. It is further submitted that when an application under Sec. 294 Cr.P.C. was filed on behalf of the petitioner, learned Trial Court did not intervene and did not separately explain the nature and consequences of the said application. It is further submitted that during the cross-examinations of the prosecutrix and her father, no relevant questions were put to them. It is further submitted that the defence counsel of the petitioner in the learned Trial Court only cross-examined four (04) out of fourteen (14) witnesses and even those witnesses who had been cross- examined were not cross-examined properly. It is further submitted that at the time of the recording of the statement under Sec. 313 Cr.P.C., the petitioner was not aware about the line of defence and was taken by a surprise and gave mechanical answers. It is further submitted that the defence counsel of the petitioner closed the defence evidence without any knowledge of the petitioner. It is further submitted that the petitioner being an illiterate and poor person posed his complete trust in the DLSA counsel which was appointed by the learned Trial Court, however, the said counsel did not conduct the trial in a proper manner. Learned counsel appearing on behalf of the petitioner relied upon Salamat Ali vs. State (Crl. Appeal No. 242 of 2010), Kishore Chand vs. State of Himachal Pradesh [AIR 1990 SC 2140], State vs. Mohd Afzal and Ors. [107 (2003) DLT 385] and K.L. Tripathi vs. State Bank of India and Ors. [(1984) 1 SCC 43].