Non-compliance of Section 273 Cr.P.C. and the rarest of rare case doctrine in heinous crimes.

JUDGMENT :

1. This Criminal Appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:

“It is, therefore, humbly prayed that this Criminal Appeal may kindly be allowed, and the impugned judgment as well as conviction and sentence dated 16.05.2022, passed by the learned Special Judge POCSO Cases, No. 3, Pali in Sessions Case (CIS) No. 75/2020 State of Rajasthan vs. Vinod Dewasi & ORS may kindly be quashed and set aside and the Appellant may kindly be acquitted for the charge of u/s 363, 366, 342 IPC and 3/4 (2) POCSO Act.

Any other relief which would be deemed just and proper by this Hon’ble Court in the circumstances of the case may also passed in favor of appellant.”

2. Brief facts of the case as placed before this Court by learned counsel for the appellant are that complainant-Ratna Ram lodged a report on 12.06.2020 alleging therein that his minor daughter was kidnapped on 11.06.2020 by the present accused-appellant & an other unidentified person, while she had gone to relieve herself, in the morning, at about 6:00 a.m. Thereafter, she was taken to ‘Ramdev Colony (Pali)’, where she was subjected to forcible sexual intercourse by the accused. Upon the said report, an FIR bearing No.102/2020 was registered at Police Station, Sadar, District Pali for the offences under Sections 363, 366-A, 368, 376 IPC and Section 3/4 of POCSO Act, 2012, whereupon, the learned Court below framed charges against the present accused-appellant for the offences under Sections 363, 366, 342, 368, 376(3) IPC and Section 3/4 (2) of POCSO Act, 2012.

2.1 Such criminal proceedings finally culminated into the impugned judgment of conviction and order of sentence against the present accused-appellant under the aforementioned provisions of law. For the offence under Section 363 IPC, the accused-appellant was sentenced to undergo five years S.I. and a fine of Rs.1,000/-, in default of payment of which, he was ordered to undergo further six months S.I.; for the offence under Section 366 IPC, the accused-appellant was sentenced to undergo five years S.I. and a fine of Rs.1,000/-, in default of payment of which, he was ordered to undergo further six months S.I.; for the offence under Section 342 IPC, the accused-appellant was sentenced to undergo six months S.I. and a fine of Rs.1,000/-, in default of payment of which, he was ordered to undergo further 15 days S.I. and; For the offence under Section 3/4(2) of POCSO Act, the accused-appellant was sentenced to undergo twenty years R.I. and a fine of Rs.1,00,000/-, in default of payment of which, he was ordered to undergo further one year’s R.I.

3. Learned counsel for the accused-appellant, without arguing the case on merits, submitted that the impugned judgment of conviction against the accused-appellant herein is unsustainable in the eye of law, owing to the fact that the learned Trial Court below has committed a grave error in law, as there is a non-compliance of the provision of law contained in Section 273 of Cr.P.C., mandating that all evidence must be recorded in the presence of the concerned accused, the only exception being, if the trial court has dispensed with the attendance of the accused, in accordance with the said provision of law.

For the sake of brevity the said Section 273 Cr.P.C. is quoted as hereinbelow:

“273. Evidence to be taken in presence of accused.—

Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader:

[Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.]

Explanation.—In this section, “accuse