MD. ABBAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application has been preferred by the petitioner-accused challenging the impugned order dtd. 20/3/2024 passed by learned Special Judge, POCSO, Siliguri in Special POCSO Case No. 58 of 2023 (arising out of Matigara Police Station Case No. 682 of 2023 dtd. 21/8/2023) under Ss. 363, 366, 302, 376A of the Indian Penal Code, 1860 (In short, IPC) read with Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act'), rejecting the prayer of the petitioner-accused under Sec. 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') for further cross-examination of prosecution witnesses on recall.

(2.) The brief fact of the case is that the opposite party no.2-defacto complainant lodged a written complaint at the local Matigara Police Station to the effect that his 16 years old daughter, who left for the school on 21/8/2023 at 9:30 hours, did not return home. Subsequent thereto at about 17:35 hours the dead body of his daughter was found at an isolated place near Motajote Rabindrapallinagar. On the basis of the aforesaid complaint, FIR was registered being Matigara Police Station Case No. 682 of 2023 dtd. 21/8/2023 under Sec. 302 of the IPC. Upon completion of investigation, charge-sheet was submitted on 19/10/2023 against the petitioner-accused under Ss. 363, 366, 302, 376A of the IPC read with Sec. 6 of the POCSO Act. On 1/12/2023, supplementary charge sheet was also filed. The cognizance of the offences was taken on the basis of the materials placed before the learned Trial Court. On 14/12/2023, the sum and substance of charges under Sec. Ss. 363, 366, 302, 376A of the IPC read with Sec. 6 of the POCSO Act were read out, to which the petitioner-accused pleaded 'not guilty'. Charges under the aforesaid offences were framed and dates were fixed in the month of January, 2024 for examination of prosecution witnesses, which was accordingly done. At the stage of cross-examination of P.W.21, on 21/2/2024, the petitioner-accused filed an application under Sec. 311 of the Code for further cross-examination of P.W.1, Dr. Jagadish Biswas, P.W.6, S.I. Arun Roy, P.W.12, Neha Modak, P.W.13, Minoti Modak, P.W.14, Puspajit Barman and P.W.16, Sri Samuel Bag. The learned Trial Court on 20/3/2024, after closure of examination of prosecution witnesses, considered the application of the petitioner-accused under Sec. 311 of the Code and rejected the same. Being aggrieved by and dissatisfied with the impugned order of the learned Trial Court, the petitioner-accused has preferred the present revisional application.

(3.) Mr. Subham Ghosh, learned advocate for the petitioner submitted that fair trial is an essence of criminal justice system. It is inherent in concept of due process of law that condemnation should be rendered only after trial in which hearing is real one, not sham or a mere farce or pretence. Hasty trial in which proper and sufficient opportunity not provided to the accused to defend himself or herself would vitiate trial as being meaningless and stage-managed. In the present case at hand, the learned Trial Court has taken up examination of substantial numbers of prosecution witnesses within a span of 16 days in a hurried manner without affording sufficient opportunity for the defence to prepare itself and cross-examine the prosecution witnesses. The prosecution witnesses were not produced as per the schedule and additional witnesses were produced on the date fixed. The learned defence counsel was compelled to cross-examine the witnesses which has affected the right of the petitioner-accused to have a fair opportunity to defend himself. There was also non-compliance Sec. 207 of the Code in supplying documents namely, digital photographs and copy of certificates under Sec. 65B of the Evidence Act which were exhibited without due supply of copies. Due to such hurried trial, certain important questions and suggestions, which were relevant for just adjudication of the case, were mistakenly, out of inadvertence, left out during cross-examination of the witnesses by the learned defence counsel. On such ground, the petitioner-accused submitted an application before the learned Trial Court for recalling of P.W.1, Dr. Jagadish Biswas, P.W.6, S.I. Arun Roy, P.W.12, Neha Modak, P.W.13, Minoti Modak, P.W.14, Puspajit Barman and P.W.16, Sri Samuel Bag for further cross-examination pertaining to questions annexed to the petition which is an innocuous prayer for proper adjudication and fair trial. Therefore, such hurried trial in a criminal case of serious nature ought not have been undertaken by the learned Trial Court in the manner it has proceeded which is not in consonance with the principles of administration of criminal justice system. It is the consistent view of the Hon'ble Supreme Court that there should be fair trial providing proper and sufficient opportunity to the accused otherwise it would vitiate trial. To buttress his contentions, he relied on the following decisions of the Hon'ble Supreme Court: