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2019 Supreme(Del) 515
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJEEV SACHDEVA, J.
Dev Kumar Yadav @ Deva - Appellant
Versus
State - Respondent
Criminal Appeal No. 780 of 2018
Decided On : 10-05-2019
Adit S. Pujari, Adv., Meenakshi Dahiya, Adv.
The failure of justice due to lack of effective cross-examination of the prosecution witnesses and the violation of principles of natural justice.
Headnote:
POCSO - Offence under Section 6 Protection of Children from Sexual Offence Act - 6, 391 Cr. P.C. - The court found that the trial court erred in not remedying the situation at the appropriate stage by appointing another Defence counsel to conduct the cross-examination of the witnesses. The judgment referred to the judgment of the Supreme Court in Brig. Sukhjeet Singh (Retd.) MVC Vs. The State of Uttar Pradesh & Ors., 2019 SCCOnline(SC) 72 and held that the manner in which the cross-examination has been conducted has clearly led to failure of justice. The matter is remanded to the Court of Additional Sessions Judge for a re-trial. Trial shall commence from the stage of the cross-examination of the prosecution witnesses.
Fact of the Case:
The appellant impugns judgment on conviction dated 27.03.2018 and orders on sentence dated 02.04.2018 whereby, the appellant has been convicted of an offence under Section 6 Protection of Children from Sexual Offence Act (in short 'POCSO') and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 5000/-, in default, to undergo one month simple imprisonment.
Finding of the Court:
The court found that failure of justice has occurred on account of lack of effective cross examination of the prosecution witnesses. The impugned judgment in the facts of the case cannot be sustained. The matter is remanded to the Court of Additional Sessions Judge for a re-trial.
Issues: The manner in which the cross-examination has been conducted by the Amicus Curiae, the failure of justice, and the violation of principles of natural justice.
Ratio Decidendi: The court held that the trial court erred in not remedying the situation at the appropriate stage by appointing another Defence counsel to conduct the cross-examination of the witnesses. The judgment referred to the judgment of the Supreme Court in Brig. Sukhjeet Singh (Retd.) MVC Vs. The State of Uttar Pradesh & Ors., 2019 SCCOnline(SC) 72 and held that the manner in which the cross-examination has been conducted has clearly led to failure of justice.
Final Decision: The matter is remanded to the Court of Additional Sessions Judge for a re-trial. Trial shall commence from the stage of the cross-examination of the prosecution witnesses.
Sanjeev Sachdeva, J.
Crl.A. 780/2018 & Crl. M.A. 4512/2019 (for summoning of witnesses)
1. Appellant impugns judgment on conviction dated 27.03.2018 and orders on sentence dated 02.04.2018 whereby, the appellant has been convicted of an offence under Section 6 Protection of Children from Sexual Offence Act (in short 'POCSO') and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 5000/-, in default, to undergo one month simple imprisonment.
2. As per the prosecution, a complaint was received on 29.01.2016, from the mother of the child victim that on 29.01.2016 at about 1.00 am, her son S... (hereinafter referred to as 'child victim), a minor boy aged about 5 years, disclosed to her that accused had called him in his room and committed sodomy with him after removing his clothes, due to which, he suffered a lot of pain and after committing this act, the accused also threatened him not to disclose about this to anyone, otherwise he would kill him. She further stated that she herself checked the anus of child victim and found some blood was oozing from it. When her husband returned home in the night at around 11.00 pm, she told him about it and thereafter, police was informed.
3. In order to prove the charge against the petitioner, prosecution examined as many as 13 witnesses. The appellant/accused did not lead any evidence in his defence. The trial court, relying on the testimony of the prosecution witnesses and also noticing the fact that there was no material cross-examination of the witnesses, held the appellant guilty and convicted him of the said offence.
4. An application under Section 391 Cr. P.C. has been filed on behalf of the appellant contending that the manner in which trial has been conducted shows that principles of natural justice have been violated and the appellant has been declined a fair opportunity of being defended. It is contended that an Amicus Curiae was appointed by the trial court on behalf of the appellant, but he did not provide the requisite assistance.
5. Digital Copy of the Trial Court was requisitioned and examined.
6. Perusal of the cross-examination of the witnesses shows that some witnesses have not been cross examined and for others, there is very sketchy cross examination and even for those witnesses who have been cross examined, on material aspects there is no cross examination at all.
7. Pw-3 i.e. the victim has been cross-examined as under:-
"Mere Papa ke pass rickshaw hai. Ye kehna sahi hai ki mere papa ki rickshaw accused ke ghar ke saamne hi khadi rehti hai. Ye baat sahi hai ki accused ko achha nahi lagta tha ki mere papa ki rickshaw uske ghar ke saamne khadi ho aur is baat per mere papa ki aur Deva uncle ki ladai hui thi. Ek baar main apne bhai ke sath khelte khelte cycle per muh ke bal gir gaya tha. Ye kehna galat hain ki papa ke kehne per maine aaj Deva uncle ke baare main jhoth bola hai. Ye kehna galat hai ki Deva uncle ne mere sath kuchh nahi kiya".
8. Pw-4, mother of the child victim who had extensively deposed and exhibited several documents has been cross-examined as under:-
"It is correct that my husband has a rickshaw. It is wrong to suggest that my son S received injury while playing with his brother. It is wrong to suggest that accused Dev Kumar has been falsely implicated in the present case as my husband used to have quarrel with him. It is wrong to suggest that no such offence was committed by accused Dev Kumar. It is wrong to suggest that I am deposing falsely at the instance of my husband".
9. Pw-5, father of the child who has also deposed extensively cross-examined as under:-
"It is correct that I have a rickshaw. It is wrong to suggest that my son S received injury while playing with his brother. It is wrong to suggest that accused Dev Kumar has been falsely implicated in the present case as I used to have quarrel with him over parking of rickshaw. It is wrong to suggest that no such offence was committed by accused Dev Kumar. It i
