Judgment:
Oral Judgment:
1] 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 Atrocities) Act.
2] The prosecution had examined 9 witnesses in support of 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;
âÂÂIt 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.
4] 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.
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 shall appoint a lawyer from the panel maintained for the purpose. 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.
Appeal accordingly stands disposed of.