GAHC010109712024 2025:GAU-AS:15797

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P./224/2024

MOFIDUL ISLAM

S/O ABU TAHER MANDAL, R/O SIJUBARI (BIHARI BASTI), P.O. AND P.S.-

HATIGAON, GUWAHATI-781038

VERSUS

THE STATE OF ASSAM AND ANR.

REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

2:MD. AJAJ

S/O SAMIULLAH VILL- SIJUBARI

BIHARIBASTI

P.S.-HATIGAON

GUWAHATI-

DIST- KAMRUP (M)

ASSA

Advocate for the Petitioner : DR. T KALITA, MR P K DAS,MR A RAZZAK,MR. V K

CHANDAK

Advocate for the Respondent : PP, ASSAM, MR. SARFRAZ NAWAZ, AMICUS CURIAE (R-2)

BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

ORDER

14.11.2025

1. Heard Mr. T. Kalita, the learned counsel for the petitioner. Also heard Mr. P. Borthakur, the learned Additional Public Prosecutor appearing for the State of Assam, as well as Mr. Safaraz Nawaz, the learned Amicus Curiae for respondent No. 2.

2. This application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India has been filed by the petitioner, namely, Mofidul Islam, impugning the order dated 16.05.2024, passed by the court of the learned Special Judge (POCSO), Kamrup (M), Guwahati in Sessions Case No. 39/2019 whereby, the prayer made by the present petitioner under Section 311 of the Code of Criminal Procedure, 1973 for recalling the PW- 1 (victim girl) for further cross examination was rejected by the trial court. 3. The fact relevant for consideration of instant revision petition is that the petitioner is facing a trial for charges under Section 376/448 of the Indian Penal Code, 1860 read with Section 8 of the POCSO Act, 2012 in Sessions Case No. 39/2019, which is pending before the court of the learned Special Judge (POCSO), Kamrup (M), at Guwahati.

4. During the course of the trial, prosecution side has already examined 6(six) prosecution witnesses, including the victim girl as PW-1, the informant as PW-2 and the Investigating Officer as PW-6. The statement of the petitioner (as accused) has already been recorded under Section 313 of the Code of Criminal Procedure, 1973 and the aforesaid case is fixed for argument before the trial court tomorrow, i.e. on

15.11.2025.

5. The learned counsel for the petitioner has submitted that on the day of argument, which was originally fixed before the trial court, the petitioner filed an adjournment application on the ground that he intends to engage another counsel for final argument and as such the said adjournment was allowed.

6. After engagement of the new counsel, while preparing the case for argument, he found that the victim girl (PW-1) was not cross- examined as regards certain contradictions and omissions made by her in her testimony before the trial court as PW-1 vis-a-vis her statement made before police and learned Magistrate under Section 161 and 164 of the Code of Criminal Procedure, 1973 respectively. Therefore, an application was filed by the petitioner under Section 311 of the Code of Criminal Procedure, 1973 for recalling the PW-1 for further cross-examination. However, by the impugned order said prayer was rejected by the trial court.

7. The learned counsel for the petitioner has submitted that since the entire prosecution case rest mainly upon the testimony of the victim girl as PW-1, hence, unless the material contradictions and omissions by PW-1 are brought on record, the petitioner would be highly prejudiced.

8. The learned counsel for the petitioner further submits that the trial court, by the impugned order had on mere technical ground rejected the prayer of the petitioner for recalling PW-1 which has caused great prejudice to the petitioner.

9. He submits that as the plea taken by the petitioner itself shows that the examination of the victim girl is necessary for the end of justice. Hence, the interest of justice and fair play requires that the victim girl, who has not been put any question about material contradictions and omissions made by her in