Crl.Pet./1356/2026 of AJINUR ALI Vs THE STATE OF ASSAM AND ANR on 28 September 2026

ORDER

29.09.2026 Heard Mr. R. Ali, learned counsel for the petitioner and also heard Mr. P. Borthakur, learned Additional Public Prosecutor, Assam, appearing for the State respondent No.1.

2. In this petition under Section 528 read with Section 438/442 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the petitioner has challenged the correctness of the order dated 03.06.2026, passed by the learned Additional Sessions Judge-cum- Special Judge (POCSO), Barpeta (Trial Court hereinafter), in Special POCSO Case No.83/2025. Notably, vide impugned order dated 03.06.2026, the learned Trial Court has rejected the petition filed by the petitioner, seeking re-examination of the informant and victim for the limited purpose of clarifying the material discrepancy regarding the identity/name of the accused, has been rejected.

3. Mr. Ali, learned counsel for the petitioner submits that the petitioner is an accused in Special POCSO Case No.83/2025, which is pending before the learned Trial Court at the stage of evidence and in the said case, the informant and the victim and the Doctor have already been examined and thereafter, the petitioner has filed one petition, being Petition No.645/2026 for re-examination of the complainant and the victim on the ground that though the informant and the victim have named the accused as Ajinur Ali, the medical report mentioned the name of the accused as Akbar Ali and as such, clarification is required whether the accused is Akbar Ali or Ajinur Ali, but, the learned Trial Court has dismissed the petition on the ground that charge has been framed against accused Ajinur Ali and charge-sheet has been submitted against accused Ajinur Ali and the informant has specifically mentioned that she knows the accused and his name is Ajinur Ali and the evidence of the victim also indicates that the name of the accused is Ajinur Ali and nowhere the witnesses were cross-examined on the point that the accused was not Ajinur Ali, but Akbar or anyone else and while PW-6, the M.O. was examined, she was not cross-examined regarding the name of Akbar Ali mentioned in the history recorded by her and the I.O. (PW-9) has specifically mentioned in her evidence that the name of the accused in the FIR is written as Ajinur Ali and when statement of the accused was recorded, he also gave his name as Ajinur Ali and the other two witnesses also named the accused as Ajinur Ali and as such, nowhere there is dispute regarding the identity of the accused, and in the FIR also, the name of the accused is mentioned as Ajinur Ali along with co-accused and as such, the learned Trial Court has rejected the petition having found no merit in the same.

4. Mr. Ali submits that re-examination of the complainant and the victim required in view of the evidence of the Doctor, who stated the name of the accused as Akbar Ali in the history of the medical report given by her and under such circumstances, if the petitioner is not allowed to re-examine the complainant, he will suffer serious prejudice.

5. Whereas, Mr. Borthakur, learned Additional P.P. has vehemently opposed the petition. He submits that all the three witnesses i.e. the informant, the victim and also the Doctor, have been effectively cross-examined by the petitioner herein and now at the fague end of trial, if the said witnesses are recalled, then the petitioner will get an opportunity to fill up the lacuna which is not permissible and under such circumstances, he has contended to dismiss the petition.

6. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record.

7. It is well settled in catena of decision including the decisions of Hon'ble Supreme Court in State (NCT of Delhi) v. Shiv Kumar Yadav, reported in (2016) 2 SCC 402, Swapan Kumar Chatterjee v. CBI, reported in (2019) 14 SCC 328, Ratanlal v. Prahlad Jat, reported in (2017) 9 SCC 340, and Rajaram Prasad Yadav v. State of Bihar, reported in (2013) 14 SCC 461, that the object of recalling the witnesses after the cross-examination is over, the object is to prevent failure of justice by ensuring all relevant facts before the Court not to give either side an unfair advantage and a balance must be struck between the need for just decision, hardship/delay caused to witnesses and the right of the accused to a fair trial.

8. In the instant case, the ground for recalling the witnesses has been stated herein above. The evidence of the complainant and the victim, as stated above and also the charge-sheet and the FIR are very much clear and the same reveals that the name of accused Ajinur Ali. And merely because the Doctor in her report, in the history, stated about one Akbar Ali as the accused and the said witness also effectively cross-examined by the petitioner herein. And since the informant, the victim and the Medical Officer have effectively been cross-examined by the petitioner herein calling them again would amounts to filling up the lacuna by the petitioner herein, which is not at all permissible.

9. Moreover, the case is pending at the last stage and the petition has been filed belatedly and further, the petitioner has failed to demonstrate that his right to fair trial is violated for rejection of his prayer to recall the witnesses.

10. Thus, having examined the impugned order, in the light of the aforesaid discussion and findings, this Court is of the view that the same suffers from no infirmity or irregularity requiring any interference of this Court and accordingly, the petition stands dismissed. Comparing Assistant Sd/- Robin Phukan JUDGE