The Orissa High Court has set aside the order of conviction of an accused under Section 376(2)(l) of the Indian Penal Code after it noted that the defence counsel was not provided with proper opportunity by the Trial Court to prepare the case and cross-examine the victim while passing the Order of Conviction.

“A criminal trial is not an IPL T20 match where every ‘substitute player’ can be an ‘impact player’.”, the bench of Justice SK Sahoo noted.

The Court observed that the Trial Court had granted one hour to Defence Counsel to file objection against the plea to appoint the father of the victim girl as interpreter to the evidence to be given by the victim who is a disabled lady. The Court noted that when the Defence Counsel sought for time to file objection, the trial Court rejected the same mainly on the ground the victim girl had come to the Court several times.

The Court observed that the observation made by the trial Court that the victim girl had come to the Court several times is not acceptable.

“In the case in hand, the State Defence Counsel refused to act when the learned trial Court did not grant time to file objection to the petition filed by the Addl. Public Prosecutor seeking permission for taking assistance of the father of the victim as an interpreter and left the accused undefended. In such a situation, it was the duty of the trial Judge to provide him legal assistance at State’s expense by appointing a State Defence Counsel, who would faithfully, diligently and to the best of his abilities discharge his duties in defence of the accused.”, the Court noted.

Advocate Jagannath Kamila appeared for the appellant whereas Rajesh Tripathy, Additional Standing Counsel, appeared for the State.

The Court asserted that when the accused was facing trial for an offence which carries punishment of rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, the trial Court should not have hurriedly recorded the evidence of the victim without giving proper opportunity to the State Defence Counsel to prepare the case.

Thus the Court set aside the judgment and order of conviction of the appellant under section 376(2)(l) of the IPC and the matter was remanded to the trial Court.

The Court added that the trial shall commence from the stage of giving opportunity to the defence counsel for further cross-examination of the victim. The Court further said that trial Court shall give due opportunity to the appellant to engage his own counsel, if he so likes and if the appellant expresses his inability to engage his own counsel, a State Defence Counsel shall be engaged.

Cause Title- Khudia @ Khudiram Tudu v. State of Odisha

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Orissa High CourtJustice SK Sahoo

Ashish Shaji