Orissa High Court

Orissa High Court: In a criminal appeal, seeking an order of fresh trial of the convict under Section 376(2)(i) of Penal Code, 1860 (“IPC”), a Single-Judge Bench of S.K. Sahoo, J., set aside the order of conviction of the convict by the Trial Court, on the grounds that no proper opportunity was provided to the State Defense Counsel (“SDC”) to prepare the case thoroughly and to cross-examine the victim.

In the matter at hand, the informant was unable to trace his disabled daughter (“victim”) and later the villagers found the victim lying on the village road in an abnormal condition. It was found that victim was raped and injured by the convict and was undergoing treatment at hospital. The convict was charged under Section 376(2)(i) of IPC. The Trial Court found the convict guilty and sentenced him to rigorous imprisonment for a period of ten years along with fine of Rs. 5000. Being aggrieved by the decision of the Trial Court, the convict filed an appeal before the High Court.


Whether proper opportunity was provided to the convict during the trial to defend his case?

The Court inspected the order-sheet of the Trial Court and noticed that Additional Public Prosecutor (“APP”) filed a petition to appoint the father of the victim as an interpreter to the recording of evidence of the victim and a copy was served to the SDC. The SDC was given only 50 minutes for filing an objection to such petition, thus he filed a memo seeking time to file an objection, but the Trial Court had turned down the memo stating the reason that the victim had already come to the Trial Court several times. The Court said that such reasons are not borne out from the record, thus, cannot be accepted.

Further, the Court noted that when the appointed SDC did not attend the recording of victim’s evidence, the Trial Court engaged another SDC and obtained his consent to complete the cross-examination of the victim on that day of his appointment. The Court said that such an act of the Trial Court is not in consonance with law. The Court observed that the Trial Court hurriedly recorded the evidence of the victim without giving proper opportunity to the newly appointed SDC to prepare the case, to obtain instructions from the accused and file any objection to the petition filed by the APP.

The Court viewed that appointing a new SDC without providing him with police papers and to cross-examine the victim on the same day of his appointment is gross illegality and the accused had been seriously prejudiced by such action of the Trial Court. Further, the Court said that “a criminal trial is not an IPL T20 match where every ‘substitute player’ can be an impact player”.

Thus, the impugned order of conviction under Section 376(2)(I) of IPC was set aside and the matter was remanded for fresh adjudication.

[Khudiram Tudu v. State of Odisha, JCRLA No. 76 of 2019, decided on 22-02-2023]

Advocates who appeared in this case :

For the Appellant: Advocate Jagannath Kamila;

For the Respondent: Additional Standing Counsel Rajesh Tripathy.

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