During the course of hearing of the appeal, this court was
shocked to note that none of the prosecution witnesses were cross
examined by the learned counsel for the appellant. It will be apt to
reproduce the cross-examination of the victim who was the star
witness. The said cross examination runs as under;
“It is not correct to suggest that, the accused did not
commit sexual intercourse with me. It is not correct to
suggest that, whatever statement, I have given today
is entirely false.
It is noted that almost all witnesses are cross examined in
the similar fashion and there is no cross examination of any witness
on the vital issues of the case. It is thus abundantly clear that the
appellant did not get the fair trial. Though it was the mistake on the
part of the learned counsel for the appellant to cross examine the
witnesses in such a superficial manner, without going into the merits
of the evidence of the witnesses, the learned trial Court was also
under obligation to see that the appellant gets fair trial. In the instant
case, it was necessary for the learned trial Court to intervene and to
find out from the lawyer if he was competent to appear for and on
behalf of the appellant. The learned trial Court was not prevented
from appointing a lawyer from the panel maintained under the Free
Legal Aid. In brief, it can be stated that the appellant is entitled for
fair opportunity to defend himself.
If the appellant did not
understand the carelessness and negligence shown by his counsel,
the learned trial Court should have immediately taken necessary
steps to see that the appellant gets a fair trial.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.398 OF 1998
Anantram @ Moru s/o. Babulal Bawankar,
V
The State of Maharashtra,
CORAM : M.L. TAHALIYANI, J.
DATED : 17th JULY , 2014.
Citation;2015 ALLMR(CRI)975
The appellant has been convicted for the offence
punishable under Section 376 read with Section 511 of Indian Penal
Code and Section 3(1)(xi) of the Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act. The victim was 6 years old at the
time of incident and she belongs to Scheduled Caste. The appellant
had allegedly attempted to commit rape on her in his agricultural
field. There were three child witnesses present at the time of incident.
Their statements were recorded during the course of investigation.
Victim was sent for medical examination. Appellant was also sent for
medical examination. The seized articles were sent for chemical
analysis. After receipt of the report of Forensic Science Laboratory,
charge-sheet
was
filed
against
the
appellant
for
the
offence
punishable under Section 376 of Indian Penal Code and Section 3(1)
(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of
The prosecution had examined 9 witnesses in support of
2]
Atrocities) Act.
its case. The appellant was examined under Section 313 of Cr.P.C by
the learned trial Judge. At the conclusion of trial, the appellant was
convicted for the offence punishable under Section 376 read with
Section 511 of Indian Penal Code and Section 3(1)(xi) of the
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
3]
During the course of hearing of the appeal, this court was
shocked to note that none of the prosecution witnesses were cross
examined by the learned counsel for the appellant. It will be apt to
reproduce the cross-examination of the victim who was the star
witness. The said cross examination runs as under;
“It is not correct to suggest that, the accused did not
commit sexual intercourse with me. It is not correct to
suggest that, whatever statement, I have given today
is entirely false.
It is noted that almost all witnesses are cross examined in
4]
the similar fashion and there is no cross examination of any witness
on the vital issues of the case. It is thus abundantly clear that the
appellant did not get the fair trial. Though it was the mistake on the
part of the learned counsel for the appellant to cross examine the
witnesses in such a superficial manner, without going into the merits
of the evidence of the witnesses, the learned trial Court was also
under obligation to see that the appellant gets fair trial. In the instant
case, it was necessary for the learned trial Court to intervene and to
find out from the lawyer if he was competent to appear for and on
behalf of the appellant. The learned trial Court was not prevented
from appointing a lawyer from the panel maintained under the Free
Legal Aid. In brief, it can be stated that the appellant is entitled for
fair opportunity to defend himself.
If the appellant did not
understand the carelessness and negligence shown by his counsel,
the learned trial Court should have immediately taken necessary
steps to see that the appellant gets a fair trial.
5]
Needless to state that conviction based on such evidence
where the witnesses were not at all cross examined by the learned
counsel for the appellant, for the reasons known to the learned
counsel himself only, cannot be sustained. It will have to be set aside.
The learned trial Court will have to be directed to give fair opportunity
to the appellant to cross examine all the witnesses examined by the
prosecution. The appellant may appoint a lawyer on his own choice.
If he is not able to appoint a lawyer on his own, the learned trial
Court will have to appoint a lawyer from the panel maintained for the
purpose. Hence, I pass the following order.
6]
Appeal is partly allowed. The judgment and order dated
16th November, 1998, passed by the learned Special Judge, Gondia, in
Special Case No.20 of 1994 is set aside.
The record and proceedings shall be sent back to the trial
Court.
The trial Court is directed to intimate the appellant about
the order of this Court and shall summon him to appear before itself.
The trial Court shall give opportunity to the appellant to
appoint a lawyer of his own choice. If the appellant is unable to
appoint a lawyer for the reason of financial constraint, the trial Court
A
fresh
judgment
shall
be
delivered
after
cross
examination of the witnesses and fresh statement of the appellant
under Section 313 of Cr.P.C.
shall appoint a lawyer from the panel maintained for the purpose.
Appeal accordingly stands disposed of.
JUDGE.
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