1 2025:CGHC:14231 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1060 of 2025 1 - Avon Sahu S/o Kashiram Sahu Aged About 21 Years R/o Village Kesala, Police Station Dongargaon, District Rajnandgaon Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Police Station Dongargaon, District Rajnandgaon Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Aditya Bharadwaj, Advocate For Respondent(s) : Ms. Vaishali Mahilong, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Order on Board 25/03/2025 1. The present petition is filed by the petitioner under Section 528 of BNSS, 2023 against the order dated 06.11.2024 passed by the learned Additional Sessions Judge, FTC (POCSO), District- Rajnandgaon (C.G.) whereby an application filed by the petitioner under Section 311 of Cr.P.C. for granting permission for re- 2 examination of P.W. -2 (Prosecutrix) in the special criminal case no. 101/2022 because after change in counsel before the court below, it has been pointed out that during cross-examination of the prosecutrix no question has been raised regarding the age, medical and other relevant evidence. Therefore, the present petitioner moved an application under Section 311 of Cr.P.C. for re-examination before the learned court below and the same has been rejected. 2. Brief facts of the case is that a written complaint was lodged at Dongargaon police station, stating that on the night of October 3, 2022, at 8:00 PM, the accused forcibly took the complainant's minor daughter to the social building of the village under the pretext of a "village decision" and coerced her into physical relations. After committing the act, the accused abandoned the complainant's daughter near Arjuni Bus Stand and also threatened to kill her if she disclosed the incident. Upon the victim's disclosure of the incident, a criminal case was registered under the relevant sections of law. During the investigation a site map of the crime scene was prepared, he complainant's statement was recorded, rhe victim's statement was documented under Section 164 CrPC. 3. Based on the statements, Section 363 IPC (kidnapping) was added to the case. With the consent of the prosecutrix's parents, a medical examination of the prosecutrix was conducted. Upon interrogation, the accused confessed the crime. Following this, the 3 accused's medical examination was conducted and the accused was arrested on October 8, 2022, after being informed of the grounds of arrest. Since substantial evidence was found against the accused, a charge sheet bearing number 406/2022 was prepared under the following Sections 376(3) (rape of a minor), 506 (criminal intimidation) and 363 (kidnapping) of the IPC, Sections 4 (punishment for penetrative sexual assault on a minor) and 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act. 4. The charge sheet was duly filed in Court, and at present, the trial is at the stage of evidence, with all witnesses examined. Thereafter the family members of the petitioner came to know that due to change of counsel during the cross-examination of the prosecutrix, important evidence related to age of the prosecutrix, Medical findings and other relevant materials have not been examined. During her cross-examination, the prosecutrix (P.W.2) stated that the accused had committed forced sexual intercourse with her three to four times on the pretext of marriage. Given this statement, a relevant examination on age and medical aspects was necessary for fair adjudication of the trial. Copy of the deposition of the prosecutrix (P.W.2) is annexed as ANNEXURE P/2. After obtaining knowledge about this new evidence, the newly appointed counsel for the accused moved an application under Section 311 Cr.P.C to re-examine the prosecutrix (P.W.2). However, the learned court dismissed the application, stating that 4 re-examination cannot be used to fill lacunas in the case. Copy of the application filed under Section 311 Cr.P.C is annexed as ANNEXURE P/3. 5. Learned State Counsel raised an objection to the present petition stating that the prosecutrix has already been examined by the counsel. 6. I have heard learned counsel for the respective parties and perused the record with utmost circumspection. 7. Perusal of record shows that a written complaint was lodged at Dongargaon police station against the accused/present petitioner stating that he has committed sexual assault with the prosecutrix on the pretext of marriage. Thereafter, a criminal case was registered against the accused and the trial began and the witnesses were examined. After the change in legal counsel, the family members of the petitioner came to know that during the cross-examination of the prosecutrix, important evidence related to the age of the prosecutrix, the medical findings of the doctor and other relevant materials had not been examined. Therefore, an application under Section 311 of Cr.P.C. for re-examination of the prosecutrix/PW-2 was presented by the counsel for the accused. The trial court vide its order dated 06.11.2024 rejected the application filed under Section 311 of Cr.P.C. stating that the victim has been examined and cross-examined at length on 06.01.2023 and the application under Section 311 of Cr.P.C. does not clarify the point at which the prosecutrix needs to be cross- 5 examined except the age and medical finding of the doctor. 8. Perusal of the deposition of the prosecutrix reveals that the prosecutrix was not asked the questions related to her age. Therefore, this Court finds that there is need to cross-examine the prosecutrix/PW-02. 9. Hence, the present petition is allowed subject to the cost of Rs. 3000/- which will be paid to the victim as an allowance and only one last opportunity is granted to the petitioner to cross-examine PW-02 with regard to her age. 10.The Trial Court shall ensure the compliance of Section 33(5) of POCSO Act, 2012 and shall give only one date of hearing to cross-examine the victim as a last opportunity and petitioner shall appear on the date given by the trial court. No further opportunity shall be given to the petitioner to cross-examine the victim whatsoever be the reason and the Trial Court shall proceed with the trial. Sd/- (Arvind Kumar Verma) JUDGE Madhurima