High Court
Legal Reasoning
4301.2023APPLN-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD940 CRIMINAL APPLICATION NO. 4301 OF 2023RAJ SANTOSH KOLIVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Niranjan Vasant DhakeAPP for Respondent/State : Mr.S.A. Gaikwad Advocate for Respondent No.2 : Ms. Patil P.A (appointed) ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 19th JANUARY, 2024. PER COURT :- 1.This application is moved for following reliefs :- “B. Be please to quash and set aside the orderbelow Exh.144, dtd.30/10/2023, passed by the ld.Special Sessions Judge (POCSO), Jalgaon in SpecialSessions Case (POCSO) no.221/2021. C.Be please to allow the application for recallof witness PW-3, i.e. Exh.144 in Special SessionsCase (POCSO) no.221/2021, pending before the ld.Special Sessions Judge (POCSO), Jalgaon.”2.Heard learned advocates for the parties. The impugnedorder passed below Exhibit-144 in Special Sessions Case (POCSO)no.221/2021 pending before the learned Special Sessions Judge(POCSO), Jalgaon, is at page 16. 4301.2023APPLN-2- 3.The applicant herein prayed for recording materialomissions, that prayer was not allowed. Therefore, the applicantmoved application under section 311 of the Code of CriminalProcedure and prayed for allowing to ask three questions. Thelearned trial Court turned down that relief and observed as under :-“5.It is pertinent to note that the matter is timebound by the Hon’ble High Court. Till date in all threewitnesses have been examined. Earlier then too, thedefence had moved application for recalling PW-1, whois the mother of the victim no.1. However, the saidapplication was rejected which appears to be similar tothe present application. In such circumstances, whenthe defence was given full opportunity to cross-examinethe witness then it will be not just and proper to recallthe said witness to put certain questions, whenparticularly, the material omissions were put to thewitness during the cross-examination as mentionedabove. In such circumstances, I do not find substance inthe application which deserves no consideration. Withthis I proceed to pass following order: ORDER i)The application stands rejected.” 4.The learned advocate for the applicant pointed out thatsome questions were not earlier asked, however, the trial Court didnot allow the application and rejected the application without legaljustification. The learned advocate is relying upon the judgment in the
Legal Reasoning
4301.2023APPLN-3- case of Mr. Wasudeo S/o Gulabrao Dhoke (in Jail) Vs State ofMaharashtra reported in 2017(1) Mh.L.J. 579. The paras 9 and 10 ofthe said judgment reads as under :-“9.In the case of Netasha Singh, the Hon’bleApex Court has reiterated the view taken by theHon’ble Apex Court in the case of Rajendra Prasad v.Narcotic Cell, through its Officer-in-Charge, Delhi,reported in AIR 1999 Supreme Court 2291. The viewis to the effect that the lacuna in the prosecution issomething which is inherent weakness or a latentwedge in the prosecution case, the advantage of whichordinarily must go to the accused and that there is adifference between inherent weakness i.e. lacuna inthe prosecution case and a mistake or oversight inasking certain questions as a part of management ofthe prosecution case. The later category of mistake orover sight does not fall in the category of inherentweakness or fundamental lacuna in the prosecutioncase and that, it is a curable defect. 10.Thus, it is clear to us that when the witnessescan be recalled to correct the errors occurred in themanagement of the prosecution case, same principlecan be applied to the defence case as well. In theinstant case, certain questions, due to inadvertence,were not put to PW 3 as well as PW 7 and a look atthese questions, as detailed in the Pursis dated22.09.2016, would reveal that they are not in the natureof any attempt to fill up the lacuna as understood inlaw, in the defence case. These questions and 4301.2023APPLN-4- suggestions are as follows :“Question to Witness No.3 : Question - It is true that deceased was ofquarrelsome nature and due to same she was oninimical terms with the other villagers ? Question to PW-7 (Investigating Officer) :Question – Can you tell during curse ofinvestigation statement of how many witnessesalong with their names, were recorded ? Question – On which date statements wererecorded ? Suggestion – You have not sent anyweapon for examination and without sending theweapons got prepared the report from Doctor.” Even otherwise, there is a difference between what iscalled as an attempt to fill up the lacuna in theprosecution case and what is called as an attempt tostrengthen the defence. While the former, if allowed,may cause prejudice to the accused, the later, ifallowed would not cause any prejudice to theprosecution and would only strengthen the right of theaccused to fair trial.” 5.The learned advocate for respondent strongly objected theapplication and submitted that those questions are already put to thesaid witness, who is child below the age of 7 years, and therefore, the 4301.2023APPLN-5- applicant has no right to recall the witness for cross-examination.6.The learned advocate for respondent is relying upon thejudgment in the case of Rakesh V/s State of NCT of Delhi andanother in CRL.M.C. 5032 of 2023 dated 31.07.2023. The paras 21,22 and 23 of the said judgment reads as under :-21.While this Court cannot dispute that the rightto fair trial is a crucial and precious right of the accused,so is the complainant’s right to a fair trial which requiresthat they should not unnecessarily be harassed,especially in the cases of sexual assault-. This Courtnotes that at times, people may not even report suchcases of sexual assault of children of tender age as inthis case, she was only seven years of age for fear ofbeing harassed by continuous visits to the Courts or fearof embarrassment and traumatic cross-examination. Itwould have been a different decision in case the recordwould have revealed that the witnesses’ cross-examination consisted of only asking few formalquestions and not of the incident, but in the presentcase, to the contrary, as already observed above, thecross-examination had been conducted at length and allrelevant aspects had been covered by the previouscounsel for the petitioner. In view of the same, thoughthe accused has to be granted and ensured a fairtrial, it cannot mean being afforded unjustifiedrepeated opportunities of cross-examination inevery case to indicate fair trial. The case of anaccused has to be meritorious where a relief as prayedfor in the present case, can be granted.22.The other contention that in case the presentapplication is not allowed, the case may end intoconviction is also without merit since, at the cost ofrepetition, it is to be taken note of that the previouscounsel has cross-examined the witnesses at lengthand only due to apprehension or fear of the accusedthat cross-examination did not result in answers thatwould have helped him, cannot be a ground to recall thewitnesses after six years of conclusion of theirtestimony. 4301.2023APPLN-6- 23.While balancing the right of the accused to afair trial and upholding the intent of the legislation, thecourts are duty bound to remain sensitive to the plight ofthe seven-year-old sexual assault victim. She and hermother cannot be recalled to relieve the entire traumaonly because the new counsel is dissatisfied with theelaborate cross-examination of these witnesses. Thus,this Court also has a duty to ensure an expeditious andfair trial, preventing misuse of such applications fordelaying the proceedings before the learned TrialCourt.” 7.Nobody will dispute the ratio laid down in the aboveauthorities cited by both sides. However, facts of each case aredecisive. 8.Perused the impugned order, the chief-examination aswell as cross-examination of the prosecution witness no.3 and theproposed three questions. 9.Cross-examination of PW-3 shows that first question out ofproposed question was asked. But the proposed question nos.2 and3 were not asked. Therefore, the permission to ask such thesequestions must be granted to the applicant as it is a part of fair trial.The learned trial Court failed to consider the principle of fair trial. Theapplication, therefore, deserves to be allowed. The impugned orderdeserves to be set aside. Hence the following order :
Decision
4301.2023APPLN-7- ORDER i)The application is allowed as to prayer clause “A” andpartly in respect of prayer clause “B’ with permissionto ask the proposed question nos.2 and 3 only.ii)The Special Sessions Judge (POCSO), Jalgaon isrequested not to grant adjournment, if the learnedadvocate for the applicant is not cross-examining thechild witness (PW-3) on settled date.10.The application is disposed of accordingly.11.The fees of the appointed counsel be paid through the HighCourt Legal Services Sub-Committee, Aurangabad as per Rules. (SANJAY A. DESHMUKH, J.) sga