(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) 1. This appeal is directed against the judgment and order passed by learned Additional Sessions Judge, Court No.10, City Civil & Sessions Court, Ahmedabad, in Sessions Case No.289 of 2011, dated 21.12.2011, by which, the respondent-accused was acquitted of the charged offences. The accused was charged with offences punishable under Sections 363, 366, 376 and 450 of Indian Penal Code.
2. This appeal was admitted by this Court vide order dated 16.4.2012 and the hearing was fixed on 27.06.2012. The respondent-accused is served and he has chosen not to appear and contest this appeal.
3. From the record, it transpires that on 26.01.2011 at about 9 O'clcok night, when the complainant- Roshanbanu Sabirkhan Pathan and her family members had gone asleep, somebody abducted her daughter Rehnumabanu, aged about 5 years, and she returned after midnight bleeding from private part. The complainant i.e. mother and relatives took the victim to the general hospital, for treatment. On narration by the victim, the accused was identified, offence was registered with Vatva Police Station, being CR-I No: 36/ 2011 against him, who was on a run then, who subsequently came to be arrested and was put to trial.
4. Charge was framed against the accused vide Ex.2. The prosecution relied on oral evidence of 11 witnesses and 20 documentary evidences, details of which are mentioned in para-4 of the judgment.
5. We have heard Mr.L.R.Pujari learned Additional Public Prosecutor for the State and Ms. Shilpa Shah learned advocate for the complainant-mother.
6. Both the learned advocates have taken us through the record and proceedings. After hearing both the learned advocates and going through the record, we find that the evaluation of the evidence by learned Sessions Judge started with the observation that the evidence of the victim has not come on record and even her statement was not recorded by police. Leaned Sessions Judge recorded conclusion that though there is material to show that offence has taken place, the evidence on record was not sufficient to link the accused with the commission of offence and resultantly, recorded acquittal. We do not find any discussion or reasoning regarding any evidence on record in the impugned judgement.
7. Both the learned advocates have contended that in the event, learned Sessions Judge was of the view that the evidence of the victim was necessary and material, learned Sessions Judge, exercising his power, ought to have summoned the victim to prevent the miscarriage of justice and after taking her evidence on record, appropriate conclusion could have been drawn. Under the circumstances, both the learned advocates have prayed that if the trial Court is directed to take evidence of the victim girl on record and then come to appropriate conclusion, it would meet with the ends of justice.
8. After hearing both the learned advocates and going through the record, we find substance in their argument that instead of evaluating the evidence on record and to judge as to whether, learned Sessions Judge has committed any error or not, it would be more appropriate to send the matter back to the trial court for retrial, with the further direction to it, to examine the victim for taking her evidence on record and then to come to appropriate conclusion. Learned APP states that if the matter is remanded to trial court, prosecution would make all endeavors to produce the victim as the prosecution witness. Learned advocate for the complainant states that the complainant mother would ensure that her daughter- the victim, comes forward for deposition before the trial court.
9. Considering the totality and peculiar facts and circumstances of the case, we deem it proper, in exercise of the powers vested in this court by Sec. 386(a) of Cr.P.C., to direct the trial court that the accused be retried, the victim shall be examined by the trial court and after taking her evidence or any other and further evidence which, it may deem proper, record the conclusion.
10. Hence, the following order.
The judgment and order passed by learned Additional Sessions Judge, Court No.10, City Civil & Sessions Court, Ahmedabad in Sessions Case No.289 of 2011 dated 21st December, 2011 is quashed and set aside and it is directed to the trial court that the accused shall be retried, the victim shall be examined by the trial court and after taking her evidence, or any other and further evidence which it may deem proper, record the conclusion, in accordance with law. Appeal is allowed to this extent.
(RAVI R.TRIPATHI, J.) (PARESH UPADHYAY, J.) (ashish)