The failure to put material circumstances to the accused during examination under Section 313 of the CrPC vitiated the trial, leading to acquittal despite serious charges.

JUDGEMENT

ABHAY S. OKA, J.

FACTUAL ASPECT

1. This is a very unfortunate case. The victim of the offence was ten years old at the time of the incident. On 27 th May 2009, around 9.00 a.m., she and her first cousin, PW-2, had gone to a pasture to graze her goats. The age of PW-2 was seven years at that time. As the victim was thirsty, she went near a tubewell cabin. The appellant-accused was working as an operator of the tubewell appointed by the owner of the tubewell. The victim requested the appellant to provide drinking water. The allegation of the prosecution is that, with evil intentions, the appellant took her inside the cabin. He committed rape on her and, after that, murdered her. According to the prosecution’s case, PW-2 saw the appellant forcibly taking the victim inside the cabin and raping her. By 11.00 a.m., PW-2 returned to PW-1, the victim's father. PW-1 was the uncle of PW-2. After PW-2 narrated the story to PW-1, he went to the tubewell cabin to find the victim and found the dead body of the victim hidden in a haystack in that cabin. On being questioned by PW-1, the appellant fled from the spot and thereafter, PW-1 registered the First Information Report.

2. The Trial Court, by judgment and order dated 24th December 2012, convicted the appellant for the offences punishable under Sections 376 , 302 and 201 of the Indian Penal Code (for short, ‘the IPC’). The Trial Court also convicted the appellant under the provisions of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the SCST Act’). The Trial Court imposed capital punishment.

3. The High Court heard the reference under Section 366 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) with an appeal preferred by the appellant. Though the High Court confirmed the conviction, the death penalty was set aside and the appellant was sentenced to undergo life imprisonment for the remainder of his natural life subject to the exercise of powers of grant of remission or grant of clemency by the constitutional functionaries.

4. The present appeal is against the judgments mentioned above. By order dated 20th May 2022, this Court granted bail to the appellant after noting that he had undergone actual incarceration for about 13 years. We may note here that earlier, learned counsel Shri M Shoeb Alam was appointed as amicus curiae to espouse the cause of the appellant. After his designation as a senior advocate, he continued to assist this Court. Shri Talha Abdul Rahman, Advocate-on-Record, was appointed amicus curiae to assist the learned senior counsel.

SUBMISSIONS

5. The learned senior counsel appearing for the appellant has taken us through the evidence of the prosecution witnesses. Inviting our attention to evidence of PW-1, Heera Lal, the father of the victim, he pointed out that the version of the witness in his examination-in-chief is based on what was reported to him by PW-2, the minor witness. But, if we compare the depositions of PW-2 with the examination-in-chief of PW-1, there is a significant variance between the version of PW-2 as stated by PW-1 and what PW-2 stated in his examination-in-chief. He pointed out that in the cross-examination, PW-1 has tried to improve upon his version by trying to depose consistently with the version of PW-2. Inviting our attention to the proceedings before the Trial Court, he submitted that when the examination-in-chief of the PW-1 was recorded, the appellant-accused was not represented by any advocate. Therefore, the cross-examination was adjourned to enable the appellant to engage an advocate.

An advocate was appointed to espouse his cause after the examination-in-chief of PW-1 was recorded. The appellant was not represented by any advocate at the time of the framing of the charge.

6. Coming to the depositions of PW-2, the learned senior counsel for the appellant urged that considering the difference between the version of PW-1 in his examination-in-chief and cross-