The active participation of an accused in the trial, with legal representation, may negate claims of violation of legal aid rights.

JUDGMENT

Prakash D. Naik, J. - The applicant is seeking directions under Section 391 of Code of Criminal Procedure (for short 'Cr.P.C.') to allow the applicant to lead additional documentary and oral evidence by summoning witnesses for examination and also to re-examine the prosecution witnesses in Special Case No.70 of 2017.

2. The applicant has preferred Criminal appeal No.1130 of 2019 challenging the judgment and order dated 9th July, 2019 passed by Special Judge under Protection of Children from Sexual Offences act, 2012 act convicting him for offences punishable under Sections 376(f)(i)(n) and Section 506(II) of Indian Penal Code (for short 'IPC') and under Sections 4, 5 (f)(l) r/w Sections 6, 8 & 9(f) r/w Section 10 of Protection of Children from Sexual Offences act, 2012 (for short 'POCSO act'). For the offences punishable under Sections 376(f),(i),(n) of IPC and Section 5(f)(l) r/w Section 6 of POCSO act, the applicant has been sentenced to suffer imprisonment of ten years and fine of Rs.25,000/-. For the offence under Section 506(II) of IPC, the applicant is sentenced to suffer rigorous imprisonment of one year and fine of Rs.5,000/-. For the offence under Sections 4 of POCSO act, the applicant is sentenced to suffer imprisonment for seven years and fine of Rs.15,000/-. For the offence under Section 8 of POCSO act, the applicant is sentenced to suffer imprisonment of three years and fine of Rs.10,000/-. For the offence under Section 9(f) r/w Section 10 of POCSO act, he is sentenced to suffer imprisonment for five years and fine of Rs.15,000/-. The substantive sentences were directed to run concurrently.

3. The case of the prosecution is that the victim girl was studying in 7th Standard. The accused was her teacher. In the Month of September-2016, the mother of victim girl found that the victim was vomiting and suffered from giddiness and missed her menstrual cycle. The victim was taken to their family doctor. Doctor gave her medicines. Thereafter, on 28th September, 2016, the victim girl was taken to Gynecologist. She was examined and after conducting requisite test, doctor had opined that the victim girl was pregnant. The mother of victim girl inquired with her as to whether anybody has committed wrong with her. The victim girl disclosed that, in the month of april-2016, the accused had committed forceful penetrative sexual assault. She was threatened that, if she discloses the incident to anybody, the accused would kill her and all her family members. She was frightened and could not disclose the incident to anybody. Thereafter, the accused went away. The accused kept on threatening her. In august 2016, the accused again committed similar act in the ladies washroom. She was again threatened by him. Crime was registered on the statement of the victim girl vide C.R. No.I-390 of 2016 with Nerul Police Station for offences under Sections 376(f)(i) (n) and 506(II) of IPC and Sections 4, 5(f)(l)(j-ii), 6, 8, 9(f) and 10 of POCSO act. Statements of witnesses were recorded. accused was arrested on 14th December, 2016 at Delhi. On completing investigation, charge-sheet was filed.

4. The prosecution examined 18 witnesses. Statement of the accused was recorded under Section 313 of Cr.P.C. Vide judgment and order dated 9th July, 2019, the applicant was convicted.

5. Learned advocate for the applicant Mr. Pradhan submitted as follows :-

i. Gross injustice of not having appropriate legal assistance and guidance is violative of articles 21, 14 and 39-a of the Constitution of India.

ii. Section 391 of Cr.P.C. empowers appellate Court to take further evidence or direct it to be taken by the trial Court on the ground that the evidence is essential for the just decision of the case. This exercise can be done during pendency of appeal instead of waiting till appeal is finally heard.

iii. During the course of trial, although the applicant was initially represented by the lawyer, during the time of recording of evidence the cross of the prosecut