This appeal is filed by the accused in Special Case

(POCSO) No.48/2018 on the file of the II Additional Sessions

Judge at Kalaburagi (for short, ‘Special Court’). The Special

Court, by the impugned judgment and order of sentence,

both of which are dated 12.07.2019 has convicted the

appellant for the offences punishable under Sections 366-A

and 376(2)(n) of Indian Penal Code, 1860 (for short, ‘the IPC’)

and Section 6 of Protection of Children from Sexual Offences

Act, 2012 (for short, ‘the POCSO Act’). The appellant’s father

has stood trial before the Special Court in Special Case

(POCSO) No.49/2018 after split-up charge sheet is filed

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against him. The appellant’s father is also convicted for the

offences punishable under Sections 366-A, 376(2)(n) r/w

Section 109 of IPC and Section 6 r/w Section 17 of the

POCSO Act. The appeal by the appellant’s father in Crl.

Appeal No.200064/2020 is pending consideration, and this

appeal is disposed of separately because of the limited

ground of lack of complete opportunity in the trial.

2.

The Special Court, while directing compensation

of Rs.5,00,000/- to the victim as required under Section

33(8) of the POCSO Act, has sentenced the appellant to

undergo rigorous imprisonment for life and to pay a sum of

Rs.1,00,000/- as fine for the offences punishable under

Section 376(2)(n) of IPC and Section 6 of POCSO Act with

default simple imprisonment of two years, and a further fine

of Rs.1,00,000/- is imposed on the appellant for the offence

punishable under Section 366-A of IPC with default simple

imprisonment of two years.

3.

The prosecution’s case against the appellant [and

his father] is that on 25.08.2018 when the victim [who,

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according to the prosecution, was aged about 17 years as of

that date] had stepped out of her house to wash clothes, the

appellant followed teasing her, and again in the evening

when the victim stepped out to answer nature’s call, the

appellant, instigated by his father, forced the victim to

accompany him alluring her with false promise of marriage.

He stayed with her in his relatives place at Shahabad, and

enroute committed rape. He later took her to Mumbai, and

they stayed in Mumbai in a rented premises for a day where

he repeatedly committed the offence of rape on the victim.

4.

It is the appellant’s case that the appellant had

engaged the services of a learned counsel who filed vakalat on

his behalf before the charge-sheet is filed. The victim’s

testimony is recorded as contemplated under the provisions of

Section 35(1) of the POCSO Act, but the learned counsel did

not cross- examine the victim. After the appellant’s statement

is recorded as required under Section 313 of Code of Criminal

Procedure, 1973 (for short, ‘the Cr.P.C.’), his counsel is

permitted on 08.01.2019 to retire from the case. On

19.03.2019, through another learned counsel an application

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under Section 311 of Cr.P.C is filed for recall of the victim for

cross examination. Thus, the fulcrum of the appellant’s

case before this Court is that with the rejection of the

application under Section 311 of Cr.P.C. there is denial of an

opportunity to cross-examine, and the appellant is convicted

because the victim’s testimony remains unchallenged.

5.

Sri Prakash Yeli, the learned Addl. State Public

Prosecutor, does not dispute that the learned counsel for the

appellant originally on record for the appellant before the

Special Court did not participate in the trial and only after

the appellant’s statement is recorded under Section 313 of

Cr.P.C., an application under Section 311 of Cr.P.C is filed

through another learned counsel, and that the Special Court

has rejected this application proceeding to pass the

impugned judgment and order of sentence holding that

victim’s testimony remains unchallenged.

6.

The question for consideration in the aforesaid

circumstances would be:

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Whether this Court must interfere with the Special

Court’s judgment of conviction