PIDIKA SAMBARU Vs. STATE OF ODISHA

JUDGEMENT

(1.) The Petitioner, who is the accused in T.R. Case No.80 of 2018, arising out of Narayanpatna P.S. Case No.72 of 2018, pending in the court of the learned Ad hoc Additional District and Sessions Judge, (FTSC), Jepore instituted by the Opposite Party No.2 for alleged commission of offences punishable under Ss. 376(2)(n)/ 450/ 506 of the Indian Penal Code, 1860 (hereinafter referred to as "the Penal Code" for brevity) read with Sec. 4 of the Protection of Children from Sexual Offences Act, 2012 ((hereinafter referred to as "POCSO Act" for brevity), has made a prayer in this CRLREV under Sec. 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for brevity) to set aside the impugned order dtd. 1/11/2021 passed by the learned Ad hoc Additional District and Sessions Judge, (FTSC), Jeypore in the aforesaid case rejecting his petition filed on 27/10/2021 under Sec. 311 of the Code to recall P.Ws.1, 2 and 3 for their cross-examination.

(2.) Prosecution case in brief is that: On 15/9/2018 at 05.14 P.M. the opposite party no.2/complainant presented a written report before the Inspector-In-Charge, Narayanpatna Police Station, Narayanpatna alleging that the present petitioner who is resident of his village has committed rape on his daughter seven months ago in his cottage. While his daughter resisted, the present petitioner threatened her to kill. She narrated her daughter's ordeal to the villagers. By that time, her daughter impregnated with about 7 months. The accused also threatened to the complainant and his family members to kill, if they disclose the matter to anybody or report to police. Hence, they remain silent. On 14/9/2018, there was a village panch meeting at their village for amicable settlement. The village gentries, namely Suba Pidika, Chinaya Pidika, Uttara Tadingi, Narsana Pidika, Kate Pidika, Sasai Pidika, Waralu Huika and others were present in the meeting. They called Sambaru Pidika to the meeting, but he did not attend the meeting. The panch members told him to report the matter at police station. Hence, he made a report before the police on 15/9/2018. Based on which, Narayanpatna P.S. Case No.72 of 2018 was registered for commission of offences under Ss. 376(3)/ 450/ 506 of the Penal Code read with Sec. 4 of the POCSO Act and investigation was initiated. The victim girl was sent to CHC, Narayanpatna for medical examination and subsequently, the Medical Officer, CHC, Narayanpatna referred the victim girl to S.L.N. Medical College and Hospital, Koraput, as there was no lady Medical Officer at CHC, Narayanpatna. After completion of investigation, the Investigating Officer submitted charge-sheet against the present petitioner. Keeping in view the nature of offences and detention of the accused in custody, the hearing of the case has been started. On 9/1/2020, the trial court examined five persons including the victim girl as P.W.2. On 11/2/2020, the medical officer was also examined by the prosecution, while there was no counsel to cross-examine the prosecution witnesses on behalf of the accused, as the accused-petitioner was in custody during that period. After released on bail, the petitioner engaged his lawyer and moved an application under Sec. 311 of the Code on 27/10/2021 to recall P.Ws.1 to 3. Having heard both the parties, the trial court vide order dtd. 1/11/2021 rejected the application of the petitioner on the ground that the discretion under Sec. 311 of the Code cannot be exercised as there is bar under Sec. 33(5) of the POCSO Act under which there is clear prescribed limitations recalling witnesses more particularly the victim of crime. Hence, this revision Application has been filed.

(3.) Learned counsel for the petitioner contended that both P.Ws.1 and 2 are material witnesses. P.W.3 is the victim girl. Unless the petitioner-accused is afforded an opportunity to cross-examine the aforesaid witnesses, he shall be highly prejudiced in his defense. He placed reliance in the case of Dharam Pal vs. State of Haryana, (2016) 4 SCC 160 and contended that the fundamental right of an accused is for a fair trial presupposes a fair investigation and in absence of fair investigation, there cannot be fair trial. But, in this case the investigation has not been done properly and in the absence of proper investigation, the materials relied on by the prosecution are not sufficient to frame charge. But the, case in hand, is different as here further cross-examination has been denied to the petitioner for examining the prosecution witnesses.