Cuttack: The Orissa High Court quashed the conviction of a rape accused and sent sent back the case for a fresh trial by the lower court in a recent order, noting that a criminal trial is not an IPL T20 match where every ‘substitute player’ can be an ‘impact player’.
The single-judge bench of Justice S K Sahoo held that no adequate opportunity was given to the state defence counsel (SDC) to prepare the case properly and to cross-examine the rape survivor.
Since the matter is remitted to the trial court for fresh adjudication and appellant Khudiram Tudu who had filed the criminal appeal is in judicial custody since June 19, 2018, he shall be released on bail on such terms and conditions as may deem just and proper by the trial court, Justice Sahoo said.
It was noted that during trial, when the prosecution filed a petition to allow the father of the girl to be her interpreter for recording of evidence and the SDC was given 50 minutes only to file an objection, he filed a memo on behalf of the undertrial prisoner seeking time, but the trial court rejected it.
When the SDC did not appear during recording of evidence of the survivor later, the trial court engaged another lawyer and even obtained consent from him to complete the cross-examination of the girl on that day, he said.
This is clearly not in consonance with law in view of the settled principle enunciated in different decisions of this court as well as the Supreme Court, Justice Sahoo said.
Engaging a new SDC without providing him police papers and just asking him to inspect the case record and to cross-examine the victim and taking consent from him to conclude the cross-examination on that day itself is a gross illegality and the accused has been seriously prejudiced by such action of the trial court, the Judge observed.
The court said the trial shall now commence from the stage of giving opportunity to the learned defence counsel for further cross-examination of the victim.
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