( 12-11-2021)

Per : Sunita Yadav, J.

Heard on IA No.4903/2020 an application under Section 389(1) of

the Code of Criminal Procedure, 1973 for suspension of sentence filed on

behalf of the appellant-Rakesh Kushwaha.

2.

The appellant stands convicted for the offences punishable under

Section 363 of IPC and has been sentenced to undergo RI for 3 years with

a fine of Rs.500/-, Section 376(3) of IPC and has been sentenced to

undergo RI for 22 years with a fine of Rs.5,000/-, Section 354 of IPC and

has been sentenced to undergo R.I. for 3 years with a fine of Rs.500/-,

Section 5(n) r/w Section 6 of the Protection of Children from Sexual

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Offences Act, 2012,and has been sentenced to undergo R.I. for 20 years

and fine of Rs.5,000/-, and Section 9/10 of the Protection of Children

from Sexual Offences Act, 2012, and has been sentenced to undergo R.I.

for 5 years with a fine of Rs.1,000/-, with default stipulations.

3.

While hearing the aforesaid IA, it reveals that initially the charge-

sheet under Section 354 of IPC and Section 7/8 of the Protection of

Children from Sexual Offences Act, 2012 was filed against the

appellant/accused. The learned trial Court framed the charges under

Sections 363, 354 of IPC and Section 10 of the Protection of Children

from Sexual Offences Act, 2012 on 10/08/2017. After recording the

statement of accused under Section 313 of Cr.P.C., at the stage of

examination of defence witnesses, an application under Section 216 of

Cr.P.C. was filed by the Special Public Prosecutor on 16/01/2020 which

was allowed by the trial court on 28/01/2020 and additional charges under

Section 376(3) of IPC and section 5 /6 of POCSO Act were framed. After

that the case was fixed on 31/01/2020 for recording plea of the accused.

On 31.01.2020 plea of accused was recorded and the case was again fixed

for examination of defence witnesses without giving an opportunity to the

appallant/accused to further cross-examine the prosecution witnesses with

reference to the additional charges under Section 376(3) of IPC and

section 5 /6 of POCSO Act. At this juncture the provisions of Section 217

of the Cr.P.C. need to be seen which provides “whenever a charge is

altered or added to by the Court after the commencement of the trial, the

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prosecutor or the accused shall be allowed -

“(a)

To recall or re-summon, and examine with reference to

such alteration or addition, any witness who may have been

examined, unless the Court, for reasons to be recorded in

writing, considers that the prosecutor or the accused, as the

case may be, desires to recall or re-examine such witness for

the purpose of vexation or delay or for defeating the ends of

justice;

(b)

also to call any further witness whom the Court may

think to be material”.

4.

On perusal of the record it is clear that the learned trial Court has

ignored the mandatory provisions of 217 of Cr.P.C. by not giving the

accused an opportunity to further cross-examine the prosecution witnesses

with reference to the additional charges. The trial Court has also not

recorded any reason in writing for not recalling the prosecution witnesses

with reference to additional charges.

5.

Section 216 of the Cr.P.C. clearly mandates that it is compulsory on

the part of the Court to check that no prejudice is caused to the accused

and he is allowed to have a fair trial and that is inbuilt safeguard in this

Section. It is compulsory for the learned trial Court to facilitate the trial in

such a manner that no prejudice in favour of any party arises and a fair

trial is affected. The accused must always be made aware of the charges

which is framed against him so that he can properly lead his evidence. In

this case, the above aspect of the trial as has been ignored by the learned

trial Court.

6.

In the light of the above, the impugned judgment and order dated

28/02/2020 is set aside and this case is hereby remanded to the concerned

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trial Court with a direction to give an opportunity to the appellant/accused

for further cross-examination of the witnes