Page No.# 1/24 GAHC010106672024 2026:GAU- AS:14368-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./185/2024 RAMJAN ALI S/O LATE JAYNAL ABEDIN, VILL.- SATRAKANARA SEAT NO. 6, P.S.- BAGHBAR, DIST.- BARPETA, ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:SAIFUL ISLAM S/O NURUL ISLAM VILL.- MOIDHALI PATHAR PURABAZAR P.S. AND DIST.- MORIGAON ASSAM For the Appellant : Mr. R. Ali, Advocate For the Respondent No.1 : Mr. R.R. Kaushik, APP, Assam - B E F O R E - HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE NCHUMBEMO MOZHUI Date of hearing : 23/09/2026 Page No.# 2/24 Date of Judgment : 23/09/2026 JUDGEMENT AND ORDER (ORAL) (Michael Zothankhuma, J) 1. Heard Mr. R. Ali, learned counsel for the appellant and Mr. R. R. Kaushik, learned Addl. PP, Assam. No one appears for the respondent No. 2. 2. This criminal appeal under Section 374(2) of Code of Criminal Procedure, 1973 is directed against the Judgment and Order dated 09/04/2024, passed by the Court of the learned Additional Sessions Judge-cum-Special Judge (POCSO), Morigaon in POCSO Case No. 191/2022, which arose out of Morigaon Police Station Case No. 338/2022. By the afore-stated Judgment and Order, the accused-appellant has been convicted for the offence under Section 376AB IPC and Section 6 of the POCSO Act, 2012. In view of Section 42 of the POCSO Act, 2012, the accused-appellant has been sentenced under Section 6 of the POCSO Act, 2012, to undergo rigorous imprisonment for a period of 20 years and to pay a fine of Rs. 20,000/-, in default of payment of fine, to undergo rigorous imprisonment for 6 months. The fine amount, if realized from the convict, has been directed to be disbursed to the victim as compensation. 3. The brief facts of the case is that an FIR dated 22/09/2022 was submitted by Prosecution Witness – 1 (PW-1) to the O/C of Morigaon Sadar Police Station, stating that around 4 p.m. on 21/09/2022, the appellant had taken his daughter, aged 5 years 10 months, to the latrine located behind the furniture shop where he worked and had raped her. As his daughter had told Page No.# 3/24 him about the same, he lodged the F.I.R. Accordingly, Morigaon P.S. Case No. 338/2022 under Section 378AB IPC read with Section 6 of the POCSO Act was registered. 4. After investigation of the case had been completed by the Investigating Officer (PW-10), charge sheet was submitted, on a prima facie case under Section 376AB IPC read with Section 6 of the POCSO Act, having been established against the appellant. 5. The learned Trial Court thereafter framed three charges against the appellant under Section 366 IPC, 376AB IPC and Section 6 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried. 6. After recording the evidence of 10 Prosecution Witnesses and examining the appellant under Section 313 Cr.PC., the learned Trial Court came to a finding that the prosecution had been able to prove the guilt of the appellant, punishable under Section 376AB IPC and Section 6 of the POCSO Act. However, the appellant was acquitted of the charge under Section 366 IPC. In view of Section 42 of the POCSO Act, the appellant was sentenced under Section 6 of the POCSO Act. 7. The learned counsel for the appellant submits that the present case, can, at best, be said to be a case of sexual assault and not a case of rape. He submits that the evidence of the victim (PW-2) in her examination-n-chief and cross-examination, recorded on 07/06/2023, shows that there was no insertion of any part of the appellant's body into the private parts of the victim. However, Page No.# 4/24 in the re-examination of the victim done six monhs later, i.e. on 08/12/2023, the victim testified that the appellant had inserted his finger into her private parts. 8. The learned counsel for the appellant submits that the prosecution could not have been allowed to improve their case and plug the loopholes in the Prosecution case, during re-examination of the victim, when there was nothing required to be clarified or explained, in respect of her evidence given during cross-examination. Secondly, the medical evidence did not prove that any offence under Sections 3 and 5 of the POCSO Act had been made out. He accordingly submits that the evidence, at best, could have led to the conviction of the appellant under Section 8 of the POCSO Act and not under Section 6 of the POCSO Act. He also submits that as there is discrepancy in the evidence of the victim given during her examination-in-chief vis-à-vis her re-examination, she could not be said to be a sterling/credible witness In support of his submissions, he has relied upon the following decisions:- 1) Pannayar Vs. State of Tamil Nadu by Inspector of Police, reported in (2009) 9 SCC 152 2) Division Bench judgment of this Court dated 17.05.2017 passed in Shyamlendu Deb Anr. Vs. The State of Assam, Crl.A. 146/2012 3) Division Bench judgment of this Court dated 18.08.2026 passed in Md. Khajul Uddin Vs. The State of Assam & Anr, Crl.A. 127/2024 Page No.# 5/24 9. Mr. R. R. Kaushik, learned APP, on the other hand, submits that the victim in her statement under Sections 161 and 164 Cr.PC, had clearly stated that the appellant had inserted his finger into her private parts. The same had also been reiterated by the victim during her re-examination before the learned Trial Court. As such, when her evidence had been corroborated by her statements made under Sections 161 and 164 Cr.PC, this Court should not interfere with the judgment passed by the learned Trial Court. The learned Addl. P.P submits that when the victim girl had been recalled for being further examined, to enable the learned Trial Court to come to a just decision in terms of Section 311 Cr.P.C, there was no infirmity in acting upon the evidence given by the victim in her re-examination, inasmuch as, the appellant was also given the chance to re-cross-examine the victim, which had been done by the appellant. In support of his submission that re-examination of the victim could be done by the learned Trial Court under Section 311 Cr.P.C, he has relied upon the decisions of the Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat & Ors., reported in (2006) 3 SCC 374 and in the case of Mohanlal Shamji Soni Vs. Union of India & Anr., reported in 1991 Supp(1) SCC 271. 10. We have heard the learned counsels for the parties. 11. The evidence of PW-1, who is the father of the victim, is to the effect that he had been told that the appellant had raped his daughter, as narrated to him. This is also stated in the FIR submitted by PW-1. Page No.# 6/24 12. The examination-in-chief of the victim (PW-2) is to the effect that the appellant had gagged the victim's mouth and touched her body and her chest inside a latrine. After the incident, as she was feeling pain on her lower back, the victim told her mother that the appellant had committed “the said bad act with her.” In her cross-examination done on the same day, the victim stated as follows:- “ XXX Cross-examination by defence XXX 6) At the time of occurrence I was playing with my friend Marina. 7) I deposed before the Court today on my own will. 8) It is not a fact that no occurrence took place as stated by me.” 13. The evidence of PW-3, who is the mother of the victim and wife of PW- 1, is to the effect that while she was with one Saidun Nesa, her daughter came home crying and stated that she was feeling pain in her private parts, by pointing to the same. On looking at her private parts, PW-3 found the victim's private parts to be swollen and red in colour. On asking the victim about it, the victim told PW-3 that the appellant had taken her inside a latrine and after opening her pants, inserted his fingers inside her private parts. 14. The evidence of PW-4 is to the effect that she stayed in the house of the informant on rent and that they shared the same courtyard. On the day of the incident, when PW-4 was sitting with PW-3, the victim came home crying and told them that her private parts were hurting. The victim also told them that the appellant had taken her inside a latrine and inserted his finger inside her private parts. Page No.# 7/24 15. The evidence of PWs-5 & 7 are to the effect that they had been informed by the mother of the victim that the appellant had raped her daughter. 16. The evidence of the Doctor (PW-6), who conducted genital examination of the victim on 22/09/2022 is to the following effect:- “Genital Examination: (a) Genital Organs: No injury noted. (b) Vulva: no discharge noted. (c) Hymen: no discharge noted. (d) Vagina: No injury noted. (e) Cervix: No injury noted. (f) Uterus: No injury noted. (g) Evidence of venereal diseases: No injury noted. (h) Evidence of injury on her body or private parts: No injury noted. Vaginal smears taken on glass slides for laboratory investigation: Regd. No. 20277/22 No spermatozoa noted dtd. 22.09.2022 Wearing clothes: (a) Evidence of struggles (tears/loss of buttons etc)-Not seen. (b) Evidence of stains (blood/semen/saliva etc.) - Not seen. General Mental Condition: Normal (a) Co-operation and behaviour- Normal. (b) Intelligence and memory- Normal. (c) Gait- Normal” In the opinion of the Doctor, there was no evidence of any recent sexual intercourse and no evidence of any recent injury. PW-6 (Doctor) also stated in her cross-examination that no redness was found in the private parts of the victim. 17. The evidence of PW-8 is to the effect that he was informed by the mother of the victim that the appellant had raped her daughter. PW-8 also stated that he thereafter kept his employee, the appellant in his room in the Page No.# 8/24 shop. At around 12:00 midnight, the informant, Sariful, Roisuddin and Rafiqul and one more shopkeeper whose name he did not know, came to his shop and asked him to bring out the appellant. On being brought out from the room, the above five persons assaulted the appellant. After that, the police were informed, who took away the appellant. 18. The evidence of PW-9 is to the effect that while she was posted as the Judicial Magistrate First Class, Morigaon on 23/09/2022, she recorded the statement of the victim under Section 164 Cr.P.C, after putting some preliminary questions to the victim and on being satisfied that the victim could give rational answers to the questions. 19. The evidence of PW-10, who is the Investigating Officer, is to the effect that she found a prima facie case against the appellant under Section 376AB IPC read with Section 6 of the POCSO Act. 20. The examination of the appellant under Section 313 Cr.P.C shows that he has given a blanket denial to the evidence recorded against him. 21. As can be seen from the records, the FIR had been filed by PW-1 on the ground that the appellant had raped the victim. The evidence of PWs-1 & 3, who are the parents of the victim and PW-4 (tenant of PW-1) are to the effect that they had been informed by the victim that she had been raped by the appellant. The statement of the victim recorded under Section 164 Cr.P.C is to the effect that the appellant had inserted his finger into her private parts and that he had touched her body with his private parts. 22. The stand of the victim had always been that the appellant had raped her by inserting his finger into her private parts. However, in her testimony Page No.# 9/24 during trial, she did not make any mention of the appellant inserting his finger into her private parts. She only spoke of the appellant having touched her body and chest during her examination-in-chief and cross-examination. 23. The main issue raised by the appellant is that the examination-in-chief and cross-examination of the victim child, recorded by the learned Trial Court on 07/06/2023, did not contain a whisper of the appellant having inserted his finger or any other part of his body into the victim's private parts. It was only in the re-examination of the victim done on 08/12/2023 by the learned Trial Court, that the victim had testified that the appellant had inserted his finger into her private parts. Thus, the question arises as to whether the Prosecution could have been allowed to improve their case during re-examination of the victim, which was done 6 months later, when there was nothing required to be clarified in the victim’s evidence during cross-examination. 24. Section 375 & 376AB of the IPC provides as follows:- ““375. Rape.— A man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— (First.)— Against her will. (Secondly.) — Without her consent. Page No.# 10/24 (Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, (Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly.) — With or without her consent, when she is under eighteen years of age. (Seventhly.) — When she is unable to communicate consent. Explanation 1.— For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.— Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.— A medical procedure or intervention shall not constitute rape. Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. After Amendment "375. Rape.-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or Page No.# 11/24 through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 376AB. Punishment for rape on woman under twelve years of age.- Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.]” 25. Section 3 of the POCSO Act provides as follows:- “3. Penetrative sexual assault.- A person is said to commit "penetrative sexual assault" if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so Page No.# 12/24 with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.” 26. A reading of Section 375 IPC and Section 3 of the POCSO Act shows that penetrative sexual assault is said to be committed, if there is penetration by the penis or any part of a body into the private parts of a child. It also includes manipulation of any part of the body of a child so as to cause penetration into the private parts of the body. The above provisions also applies where the accused applies his mouth to the private parts of the child or makes the child do such act with such person or any other person. 27. The testimony of the victim in her examination-in-chief/cross- examination before the learned Trial Court on 07/06/2023 shows that Section 3 and 5 of the POCSO Act, 2012 could not have been attracted and consequently, the appellant could not have been convicted under Section 6 of the POCSO Act. The problem arises with the re-examination of the victim 6 months later by the learned Trial Court on 08/12/2023, where she testifies that the appellant had inserted his finger into her private parts. 28. The cross-examination of the victim also did not raise any new fact or issue, which needed to be explained. The re-examination of the victim after a period of 6 months on 08/12/2023, recorded the victim’s testimony to the effect that the appellant had inserted his finger into her private parts. The above could not have been done in terms of Section 138 of the Evidence Act and as such, should not have been taken into consideration by the learned Trial Court, unless permission of the learned Trial Court was taken. Page No.# 13/24 29. Section 138 of the India Evidence Act, 1872 states as follows: “138. Order of examinations.-Witnesses shall be first examined-in-chief then (if the advere party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross- examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination. - The re-examination shall be directed to the explanation of the matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” 30. In the case of Pannayar (supra), the Hon’ble Supreme Court has held that the purpose of re-examination is only to get the clarifications of some doubts created in the cross-examination. One cannot supplement the examination-in-chief by way of a re-examination and for the first time, start introducing totally new facts, which have no concern with the cross- examination. Para 26 of the above said judgment is reproduced hereinbelow as follows:- “26. We do not know what was the Public Prosecutor doing at the time of the examination-in-chief and why he did not confront the witness on these ornaments. We do not know as to how the trial court permitted these questions in re-examination. The purpose of the re-examination is only to get the clarifications of some doubts created in the cross examination. One cannot supplement the examination-in-chief by way of a re-examination and for the first time, start introducing totally new facts, which have no concern with the cross-examination. The trial court has obviously Page No.# 14/24 faulted in allowing such a re-examination. Be that as it may, even if we accept that the trial court was justified in allowing the re- examination, the evidentiary value of the contents of the re-examination, in our firm opinion, is nil.” 31. In the case of Shyamlendu Deb (supra), the Division Bench of this court held that neither re-examination of a witness or cross-examination after re-examination is routine, in terms of Section 137 and 138 of the Indian Evidence Act, 1872. Re-examination is required to be directed to explain the matters referred to in cross-examination and that too if the party calling him so desires. The Division Bench judgment at Para 49 states as follows:- “49. Section 137 of the Evidence Act, 1872 deals with examination-in-chief, cross- examination and re-examination. Examination of a witness subsequent to the cross- examination by a party who called him, shall be called his re-examination. As per Section 138, a witness can be re-examined after cross-examination if the party calling him so desires. Re-examination shall be directed to the explanation of matters referred to in cross-examination and if new matter by permission o f the Court is introduced in re-examination, the adverse party may further cross -examine the witness upon that matter. Therefore, neither re-examination of a witness or cross-examination after re- examination is routine; re-examination is required to be directed to the explanation of matters referred to in cross-examination, that too if the party calling him so desires i.e., the prosecution in this case. Nothing of that sort happened here to justify re- examination and further cross-examination of PW20, that too after two years. Having regard to the nature of cross-examination, there was no necessity for the prosecution to have sought for re-examination of PW20, that too so belatedly. The sudden statement of PW20 in the further cross-examination that he had made the earlier statement under Section 164 Cr.PC on being tutored by his maternal uncle is quite jarring to the narrative and itself appears to be an outcome of some tutoring. This whole episode of re-examination and further cross-examination of PW20 after almost two years, that too at the instance of the prosecution seems quite unnatural.” Page No.# 15/24 32. As can be seen from the provisions of Section 138 of the Indian Evidence Act, 1872, the law laid down by the Supreme Court in the case of Pannayar (supra) and the decision of this Court in Shyamlendu Deb (supra), re-examination is only for the purpose of clarifying/explaining some doubt or matters stated in the cross-examination. The contents of the examination-in-chief cannot be supplemented by re-examining the witness. It is only in the context of some clarification on a doubt/new fact required to be explained in relation to a cross-examination, that re-examination of a witness can be done, unless permission of the Court is taken for introduction of a new fact in re-examination. 33. On going through the learned Trial Court records, we find that the learned Trial Court, vide order dated 28.11.2023, had come to a finding that the evidence of the victim (examination-in-chief/cross examination) recorded on 07.06.2023, was very ambiguous and it would be difficult for the learned Trial Court to arrive at a just decision, on the basis of the ambiguous evidence adduced by the victim. The learned Trial Court therefore directed issuance of fresh summons to the victim, for her further examination, to remove the ambiguity and to arrive at a just decision of the case, vide order dated 28.11.2023. It was on the basis of this order dated 28.11.2023 that re- examination of the victim (PW-2) had been done by the learned Trial Court on 08.12.2023. 34. Though there is nothing stated in the order dated 28.11.2023 passed by the learned Trial Court Judge, as to the provision of law under which the victim had been called for further examination, keeping in view the conditions Page No.# 16/24 required for re-examination under Section 138 of the Evidence Act, we find that there can be a recall of a witness already examined under Section 311 CrP.C,. which states as follows : “311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examined any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 35. The extract of the order dated 28.11.2023 passed by the learned Trial Court is reproduced herein below, as follows : “Accused Md. Ramjan Ali is produced before me from District Jail, Morigaon. Witness not turned up. Perused the record. Evidence of the victim had been recorded as PW-2 on 07.06.2023 by my learned predecessor in office. The evidence of the victim made before the Court appears to be very ambiguous, on the basis of which it will be difficult to arrive at a just decision of the case. Heard both the sides. To remove the ambiguity and to arrive at a just decision of the case, issue fresh summon to the victim ‘X’ for her further examination by Court. Prosecution to take the steps. Accused be remanded back till next date.” Page No.# 17/24 36. As can be seen from the above order, the issue that is to be decided is whether the bar under Section 138 Evidence Act for re-examination of witness, could be overcome under Section 311 Cr.P.C, to enable the learned Trial Court to come to a just decision. 37. In the case of Mohanlal Shamji Soni (supra), the Supreme Court has held that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person, even if the evidence on both sides is closed. The jurisdiction of the court must obviously be dictated by exigency of the situation. Fair-play and good sense appear to be the only safe guides and examination of any person would depend on the facts and circumstances of each case. The Supreme Court, in the above case, was also in agreement with the law laid down in the case of Rameshwar Dayal & Other vs. The State of Uttar Pradesh, reported in (1978) 2 SCC 518, wherein it was held that whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him. 38. The Supreme Court also stated in Mohanlal Shamji Soni (supra) at paragraph-18, as follows : “The next important question is whether Section 540 gives the court carte-blanche drawing no underlying principle in the exercise of the extra-ordinary power and whether the said Section is unguided, uncontrolled and uncanalised. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be Page No.# 18/24 exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.” 39. In the case of State of West Bengal vs. Tulsidas Mundhra, reported in (1963) 2 SCJ 204, the Supreme Court held that Section 540 (new Section 311 Cr.P.C.) confers on criminal Courts very wide powers and it is for the Court to consider whether its power under this section should be exercised or not. If it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by Section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case. 40. In the case of Zahira Habibullah Sheikh (supra) the Supreme Court held that the object of the Section 311 Cr.P.C. is to bring on record evidence, not only from the point of view of the accused and the prosecution, but also from the point of view of society. If a witness called by Court gives evidence against Page No.# 19/24 the accused, he should be allowed an opportunity to cross- examine it. The right to cross-examine a witness, who is called by a Court, arises not under the provision of Section 311 Cr.P.C, but under the Evidence Act, which gives a party the right to cross- examine a witness who is not his own witness. The Supreme Court also held that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court further held that in a criminal case, the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being a public wrong in breach and violation of public rights and duties, which affect the whole community and is harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine, by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality, both to the parties and to the community it serves. 41. In the case of Md. Khajul Uddin (Crl.A 127/2024), the Division Bench of this Court had held that when the act of penetration had not been stated by the victim during trial, which she had apparently stated before the Police and her guardians, it could not be said that the victim was a sterling witness, in terms of the decision of the Supreme Court in the case of Rai Sandeep vs. State of NCT of Delhi, reported in (2012) 8 SCC 21. This was due to the discrepancy in the statements of the victim made to the authorities Page No.# 20/24 and the learned Trial Court in the above case. In the present case too, the issue arises as to whether the victim can be said to be a sterling witness, inasmuch as, the victim had not stated in her examination-in-chief that there had been penetration of her private parts by the appellant's finger. On the other hand, the statement made by the victim under Section 164 Cr.P.C is to the effect that the appellant had put his finger into her private parts and that the appellant had touched all parts of her body with his penis. The touching of all parts of her body by the private parts of the appellant is not a part of the testimony of any of the prosecution witnesses, including the victim. We also find that the credibility of the victim has not been put to test during the recording of her evidence, regarding the appellant’s private parts touching the body of the victim. However, the insertion of the appellant’s finger into the private parts of the victim is reflected in the victim’s testimony during re-examination. 42. Though the order dated 28/11/2023 passed by the learned Trial Court issuing fresh summons to the victim for further examination, has not made a mention of the provision of law for recalling the victim to give evidence, we find that the same can be done by the learned Trial Court under Section 311 Cr.P.C for the purpose of coming to a just decision. It is settled law that non- mentioning or quoting a wrong statutory provision does not invalidate/vitiate the order passed by a Court, provided the source of power for passing such an order exists under any statute/law. In the case of J. Kumaradasan Nair & Anr Vs. Iric Sohan & Ors, reported in (2009) 12 SCC 175, the Hon’ble Supreme Court has held that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a Court, if it is Page No.# 21/24 otherwise vested in it in law. 43. While Section 138 of the Indian Evidence Act speaks of the right of the parties to a proceeding, to examine and cross-examine a witness, re- examination can be done only if a clarification of a doubt or a new fact is brought out in the cross-examination. However, re-examination can also be done with regard to a new fact to be brought in, only with the permission of the Court. On the other hand, under Section 311 of Cr.P.C, a discretionary power is given to the Court to recall a witness who is already examined, to enable it to make a just decision in the matter, which is in the interest of society. There is no conflict between Section 138 of the Indian Evidence Act and Section 311 of Cr.P.C, inasmuch as, a new matter can be brought in with the permission of the Court. As the learned Trial Court had recalled the victim for further examination to come to a just decision, we do not find any error in the re-examination of the victim, wherein she has stated that the appellant had inserted his fingers into her private parts. 44. In the case of Rajaram Prasad Yadav vs. State of Bihar and another reported in (2013) 14 SCC 461, the Supreme Court has held that the widest of the powers have been invested to the Court under Section 311 Cr.P.C, where it comes to recall and re-examining any witness already examined. The use of the expression “any” shows that the only requirement for the Court was that, it should be satisfied that such evidence would be essential for a just decision of the case. It thus held that a reading of section 311 Cr.P.C. and Section 138 of the Indian Evidence Act, in so far as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. The Supreme Court thus held that the Page No.# 22/24 invocation of Section 311 Cr.P.C and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely for achieving a just decision of the case. Paragraph 14 of the above judgment is reproduced here below as follows:- “14. A conspicuous reading of Section 311 Cr. PC would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a prefix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr. PC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr. PC. It is, therefore, imperative that the invocation of Section 311 Cr. PC and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest Page No.# 23/24 power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.” 45. In view of the above reasons, it is apparent that the learned Trial Court had the jurisdiction to recall the victim to give further evidence, especially, when it wanted to clarify an ambiguity which it considered to be essential to make a just decision in the case. 46. In the present case, the victim was aged around 5 years 10 months at the time of the incident and as the evidence of the victim had been recorded 6 months after the incident, it is understandable that the victim had not stated clearly as to what exactly had been done to her by the appellant which could be due to tender age and the fact that the victim would have had to relive a very traumatic episode of her life. 47. 47. Though it is quite apparent that a re-examination of a victim cannot be done routinely, unless there is a requirement of clarifying some doubt/new fact brought out in the cross-examination, we are of the view that the provision of Section 311 Cr.P.C. cannot be subject to Section 138 of the Evidence Act, especially when re-examination on a new matter can be done with the permission of the learned Trial Court. The above being said, the appellant has also been allowed to re-cross-examine the victim, wherein no defence had been taken by the appellant that the victim had been tutored to make a false testimony in her re-examination. The victim being a young girl, who has apparently suffered trauma and was part of an inadequately conducted examination-in-chief, we are of the view that recalling of the victim by the learned Trial Court, to enable it to come to a just decision, cannot be challenged Page No.# 24/24 at this stage, when the order dated 28/11/2023 passed by the learned Trial Court has attained finality and which has not been challenged till date by the appellant. 48. Though the testimony of the victim in the re-examination could be said to be weak due to the same not being stated in the examination-in-chief, we find the testimony of the victim during her re-examination to be truthful. We are accordingly of the view that the testimony of the victim given during her re- examination was correctly taken into consideration. Further, the same being corroborated by the statement of the victim under Section 164 Cr.P.C, we do not find any ground to interfere with the impugned judgment and order. 49. The appeal is accordingly dismissed. 50. Send back the TCR. JUDGE JUDGE Comparing Assistant