HRLN has filed a Special
Leave Petition which challenged the final order judgment of the Orissa High
Court dated 5.1.12 in CRL.M.C No. 1746 of 2011 wherein the Hon'rble High Court
dismissed the Petition filed by the Petitioner.
On 25.8.08 at the height
of the communal riots in Kandhamaal Orissathat had occurred in the
tribal-dominated district in the aftermath of the killing of VHP leader
Laxmanananda Saraswati at the Jalespata Ashram on 23.8.08., the Petitoner and
others were attacked by a mob that molested the petitioner, assaulted her &
was gang raped and paraded semi-naked through the streets two days in
Kandhamal. During that time she did not knew the names of her assailants or of
the persons who raped her, but she was able to identify them.
The court had in February
last year(2012) stayed the trial on a plea by the Petitioner, who challenged
the prosecution's failure to cross-examine a judicial magistrate, failure of
which she claimed helped the accused persons. As per the victim, the magistrate
had withheld some of the accusatory statements she had made against one of the
accused person when he took the witness box.
A bench led by Justice S
S Nijjar allowed the nun's appeal, argued through senior advocate Colin
Gonsalves, and set aside the orders passed by the trial court and the high
court. The lower courts had held that she had no right to seek recalling a
witness for cross-examination and that she must have faith in justice delivery
system.
The bench reminded the
courts that "in criminal jurisprudence, while the offence is against the
society, it is the unfortunate victim who is the actual sufferer and therefore,
it is imperative for the State and the prosecution to ensure that no stone is
left unturned. It is also the equal, if not more, the duty and responsibility
of the Court to be alive and alert in the course of trial of a criminal case
and ensure that the evidence recorded in accordance with law reflect every bit
of vital information placed before it."
"The whole scheme of
the Code of Criminal Procedure envisages foolproof system in dealing with a
crime alleged against the accused and thereby ensure that the guilty does not
escape and innocent is not punished" it noted.
The Hon'rble Supreme
court has given its judgment and as directed to the trial court to recall the
magistrate for cross-examination once again and said that the trial court
should conclude the proceedings in accordance with law expeditiously,
preferably within three months from the date of this order.
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