Rajasthan High Court Sets Aside Order Convicting POCSO Accused Within 8 Days Of Filing Of Chargesheet, Orders Fresh Trial

Justice Farjand Ali said there is no rat race or competition between the trial judges to see who finishes first and that justice should not be approached from that kind of ambitious perspective. A path in the middle needs to be carved out to conduct the trial in a regular, systematic manner while finding balance between undue haste and undue delay, said the court.

“Quick justice becomes weak justice if not accomplished with compliance of statutory procedure and established conventions. If the accused is guilty of committing an offence then the trial must be concluded in an expeditious manner so that the memory of the witnesses does not fade away but in the present case, the statements and testimonies were recorded too expeditiously which led to re-traumatising of the victim as well as stymying of the right of accused to a trial that is marked by justice, fairness and freedom from bias.”

The court said the conduct of the presiding officer was unreasonable, procedurally unfair and not in accordance with law. However, it clarified that the same may not have been intended. 

"In the willingness to dispose of the case quickly, the presiding officer conducted the trial in such a hurried manner that several deficiencies were overlooked or neglected or missed. There are several defects and contrarieties that have been noticed by this Court while going through the material available on record," said the court.

Background

As per the prosecution, the victim, a nine-year-old girl, was raped by the accused-appellant while she was on her way back home from a shop in the village at around 5 p.m. on 26.09.2021. Once recovered, she was immediately taken to the hospital, where she narrated the incident to her father and was medically examined. The father then reported the incident to the police.

The police recorded the prosecutrix's statement under Section 161 and 164 CrPC, and the accused-appellant was detained and interrogated. He was arrested and a charge-sheet was filed against him on 27.09.2021.

Cognizance was taken by the trial court and the accused-appellant was examined under Section 313 of CrPC, during which he refuted the testimonies of all the prosecution witnesses, except for the part of the prosecutrix's testimony where he admitted to being intoxicated.

The trial court convicted the accused-respondent on 05.10.2021 under Section 5(m)/6 of the POCSO Act and sentenced him to twenty years of rigorous imprisonment, along with a fine of Rs. 2,00,000/-. The accused-appellant then filed an appeal against the said judgement of conviction and order of sentence.

The State said the matter was sensitive and it was decided quickly for the sole reason that justice be delivered to the victim without any undue delay.

Verdict

The court at the outset noted that cases involving rape of a girl child need to be dealt with carefully and with a certain degree of sensitivity. It referred to the parameters laid down in Mohd. Alam Vs. The State (NCT of Delhi).

However, Justice Ali said the victim was made to tell and retell the horrific incident that happened with her at least four times within a span of few days.

"She is a tweenager who was badly injured and found herself in a befuddled and semi- conscious state. There was no such haste for which she was made to relive the entire incident multiple times in front of authorities and unknown individuals and made to depose when she was in a traumatized state of mind and was facing an utterly unpleasant upheaval," said the court.

It also observed that if the victim is given a reasonable time period to cool down from the shock and trauma, she will be in a better frame of mind to give her statement and will be able to remember and re-tell the incident that happened with her more accurately. 

"It is a natural phenomenon that when our mind and body have just been through a major mishap, we require time to step out of the discombobulation caused by the unfortunate episode, understand and process the incident that occurred and come to terms with the new reality that starts to exist after the episode," said the court. 

Justice Ali also said there was no need to record the statement of the victim in such haste when she was severely frightened by the incident and as per the report, she underwent a surgery on the very same day and was in an intensive care unit of the hospital.

"So in the view of this Court, she was in trauma and the presence of police officer, employees of the court, judicial officer, medical officer etc. who were making her reply to the questionnaire was no less traumatic than what she had already endured."

The bench also observed that the trial court did not ask the accused whether he has engaged any counsel to represent him or he is an indigent person so that legal assistance may be provided to him through legal service authority. It added he was not even afforded enough time to engage a counsel of his own choice.

"In fact, there is no application on behalf of the accused to the Legal Service Authority seeking legal aid. It seems that a panel lawyer of DLSA has been foisted upon him to defend his cause," said the court.

The court also said no time was granted to the accused to meet with his counsel, to sit with him or strategize so that he may apprise the counsel of the facts and circumstances relevant to the case. "No effort has been made to get him examined by any psychologist or civil surgeon. No representation from the department of social justice has been obtained regarding his socio-economic condition as well as family/dependents," it added.

It further observed that order appointing a lawyer to the accused was passed on 28.09.2021 and a copy of the charge-sheet was given to him and cognizance of the offence was taken, arguments on framing of charge were heard and the charges were framed on the very same day.

"Even the challan was filed at home with no paper at 07.30 p.m. on 27.09.2021; cognizance was taken by the learned judge on 28.09.2021 and statements of eight witnesses were recorded on 30.09.2021," said the court.. 

The court said at more than one instance, it was forced to ponder upon the unwarranted haste and urgency that was shown at various steps of investigation as well as at effective stages of trial. "There was no need for recording of the statement of the prosecutix in the hospital when she was about to get discharged at 02:00 p.m. on the very same day," it added.

The court tabulated the various stages and steps of the trial, from which it was reflected that the investigation was completed and the charge sheet was filed "in less than a day".

"The statements of all the witnesses were recorded and evidence was taken on record in a total of four days and final arguments were heard on the fifth day. On the fifth day itself, the judgment of conviction was written and pronounced in open court. The order of sentence was also passed on the fifth day of the trial post framing of charge. Effectively, the trial was concluded within a span of just five days post framing of charge excluding the two days of holidays, i.e. 02.10.2021 and 03.10.2021," said the court.

The court said of the manner in which the trial proceeded in the case at hand is studied, then it becomes crystal clear that the counsel for the accused did not get sufficient and reasonable time.

"This Court is of the view that a lawyer-client relationship, in its true sense, could not be established and developed between the accused and his counsel."

The court said there is no cause for allowing the conviction to stand as passed by the trial court. "This court does not concur with the finding reached by the learned District & Sessions Judge and the manner in which the trial was culminated and therefore, rejects the same," Justice Ali said.

While allowing the appeal, the court ordered for a de novo trial to be conducted by the trial judge from before the point of framing of charge.

The court issued several directions for the trial court to adhere to. These directions included compliance with CrPC provisions, calling witnesses and the victim to court, allowing a trusted person to accompany the victim during trial, and calling a child counsellor if necessary.

The directions further included that the accused shall be veiled and kept in a separate section to avoid direct exposure to the victim, the trial judge must follow POCSO Act case guidelines and ensure that witnesses and the victim are not harassed with unnecessary questions.

Case Title: Kamlesh vs. State Of Rajasthan S.B. Criminal Appeal No. 244/2022

For Appellant(s): Ms. Anubha Singh

For Respondent(s): Mr. Rajendra Yadav, AAG with Mr. Sher Singh Mahla, PP, Mr. Vijay Singh Shekhawat

Click Here To Read/Download The Order