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High Court Of Madhya Pradesh
P. N. S. CHOUHAN, D. K. JAIN
STATE OF M.P. - Appellant
Versus
BUDHRAM S/o KUNKURAM SATNAMI - Respondents
CRI. REF. 3 Of 1995
Decided On : 05/09/1995
CRIMINAL PROCEDURE CODE - SECTION 273 - VIOLATION - TRIAL VITIATED - REMAND FOR RETRIAL - SECTION 313 - STATEMENT OF ACCUSED TO BE RE-RECORDED - OPPORTUNITY TO ADDUCE EVIDENCE IN DEFENCE TO BE GIVEN - TRIAL TO BE CONCLUDED WITHIN A MONTH.
Fact of the Case:
Appellant was convicted and sentenced to death for the murder of his father, stepmother, and five step-siblings. The prosecution's case was that the appellant committed the murders in the night intervening 25th and 26th November, 1993, and confessed to the murders to the village Kotwar Patel Das on 26-11-93. The appellant was not defended by a lawyer during the trial, and on 31-1-95, the evidence of seven witnesses was recorded in his absence. The appellant's lawyer informed the court that he had no objection to the evidence being recorded in the appellant's absence.
Finding of the Court:
The court held that the trial was vitiated due to the violation of Section 273 of the Code of Criminal Procedure, which mandates that all evidence against an accused must be recorded in his presence. The court found that the appellant's lawyer had no authority to inform the court that he would have no objection to the evidence being recorded in the appellant's absence, as no request was ever made for dispensing with the appellant's attendance on 31-1-1995.
Issues: Whether the trial was vitiated due to the violation of Section 273 of the Code of Criminal Procedure.
Ratio Decidendi: The court relied on the case of Daryav Singh v. State of M. P., Cr. A. No. 345/88, in which it was held that the recording of evidence in the absence of the accused was a violation of Section 273 of the Code of Criminal Procedure and that the case must be remanded back to the trial court for re-recording of the evidence in the presence of the accused.
Final Decision: The court set aside the reference and allowed the appeal. The appellant's conviction and sentence of death were set aside, and the case was ordered to be sent back to the trial judge for re-recording of the evidence of seven witnesses in the presence of the appellant. The appellant was to be given full opportunity to cross-examine the witnesses, and his statement under Section 313 Cr. P. C. was to be re-recorded. If the appellant wanted to adduce evidence in defense, the same was to be recorded. The trial judge was expected to expedite the trial and conclude it within a month from the receipt of the record.
( 1 ) THIS judgement shall dispose of Cr. A. No. 431/95 (Budhram v. State) as well.
( 2 ) ADDITIONAL Sessions Judge, Sakti of Bilaspur Sessions Division, vide judgement, dated 10-3-1995, passed in S. T. No. 41/94 has held Budhram son of Kunkuram Satnami aged 28 years, resident of Basti Baradwar, P. S. Baradwar, District Bilaspur guilty under Section 302 I. P. C. and sentenced him to death. Cr. Ref. No. 3/95 is reference under Section 366 of the Code of Criminal Procedure made by him for confirmation of the aforesaid sentence of death. Cr. A. No. 431/95 is the appeal preferred by the condemned man.
( 3 ) THE prosecution case is that Kunkuram first married Heerabai. She gave birth to a daughter Urmila and a son Budhram (the appellant ). When Budhram was 3 years' old and his sister Urmila 5 years old, Kankuram deserted his wife and children and left towards Allahabad with another woman Ravibai. During the absence of Kankuram his wife Heerabai reared the children and married them. She was living with Budhram in a house constructed on the ancestral lands recorded in the name of Raghuvir, her father-in-law. She was also cultivating the lands recorded in the name of Raghuvir. In or about 1990-91 Kankuram returned back to the village Basti Baradwar along with his second wife Ravibai and children begotten by her namely, Shankarlal, Chatua, Nankua, Juguntabai, and Muliyabai. On his return Kankuram took possession of large part of the house in which Heerabai and Budhram were living. Kankuram also took in possession live-stock and also agricultural land and started treating Heerabai with cruelty. He created a situation in which Budhram was forced to leave the house. In or about September, 1993 Budhram was blessed with a daughter, but soon thereafter she died. In the course of funeral functions Kankuram, Ravibai and their children did not participate. All this bred in Budhram the animal's urge of retribution. The allegation is that in the night intervening 25th and 26th November, 1993, Budhram committed the murder of his father Kankuram, step mother Ravibai and all their five children aforementioned. On 26-11-93, after day break, Budhram changed his clothes and set out for the police station. On the way he me village Kotwar Patel Das and confessed to him that he had committed the murder of his father, step mother, step brother and step sisters. Patel Das then took Budhram to the Police Station Basti Baradwar and lodged the first information report, Ex. P. 17. Exs. P-18, P-19, P-20, P-21, P22, P-23 and P-24 are the Marg intimation recorded in the police station relating to the aforesaid murders. Crime was registered and investigation taken up. Exs. P-26 to P-32 are the inquest proceedings held on the seven dead bodies. All these dead bodies were sent for post-mortem examination to the doctor along with requisitions, Exs. P-52 to-P-58. Dr. J. Singh (P. W. 9) performed autopsy on the dead bodies Ravibai, Nankua, Shankarlal and Nuliyabai, His reports are Ex. P-8 to P-11 respectively. Dr. J. C. Meshram (P. W. 12) conducted autopsy on the dead bodies of Kankuram, Chatua and Ku. Jugunta vide reports Exs. P-40 to P-42 respectively. The doctors confirmed that all these deaths were homicidal caused by sharp edged weapon. In case of Ravibai, Shankarlal and Jugunta the trachea was found severed. During the course of investigation the Gandasa was recovered at the instance of appellant and was seized vide Ex. P-38. When the trial commenced the accused was not defended by a lawyer. Opportunity was afforded to him to engage a lawyer as hehad made a request to the court in that behalf. Ultimately he engaged a lawyer. During the course of the trial on a number of occassions the accused was not produced before the Court and the trial had to be adjourned. On 31-1-95 the story was repeated and the appellant/accused was not produced before the Court. On that date Bhogilal (P. W. 14), Urmilabai (P. W. 15), Kamlabai (P. W. 16), Kiranbai (P. W
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