MOHIT Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) 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 Sec. 389 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C."). The appellant has been convicted for the offences under Ss. 376(3) and 506 of the Indian Penal Code (for short "the IPC") and Sec. 3/4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "POCSO Act"). For the offence under Sec. 376(3) IPC, the appellant has been sentenced to twenty years' rigorous imprisonment with a fine of Rs.50,000.00, and in default of payment of fine to undergo further six months' additional imprisonment. For the offence under Sec. 506 IPC, the appellant has been sentenced to undergo two years' rigorous imprisonment with a fine of Rs.5,000.00, and in default of payment of fine to undergo further six months' additional imprisonment. Since the punishment prescribed under Sec. 376(3) IPC and Sec. 3/4 of the POCSO Act is same, the learned Trial Judge proceeded to sentence the appellant only under Sec. 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 24/2/2021 on the ground that it is provided under Sub-Sec. (5) of Sec. 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 9/8/2019. 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.