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2020 Supreme(MP) 81
MADHYA PRADESH HIGH COURT BENCH AT GWALIOR
Sheel Nagu, Rajeev Kumar Shrivastava, JJ.
State Of Madhya Pradesh - Appellant
Versus
Ravi @ Toli Malviya - Respondent
Criminal Reference Case No. 13 of 2019; Criminal Appal No. 9132 of 2019
Decided On : 30-01-2020
Kuber Boddh, Advocate, Vijay Dutt Sharma, Advocate, Padam Singh, Advocate, Kuber Boddh, Advocate
Violation of Section 273 Cr.P.C. and the implications of recording evidence in the absence of the accused.
Headnote:
Criminal Reference Case - Death Penalty - Sections 363, 366-A, 364, 376(2)(i), 376(2)(j), 376(2)(k), 302 and 201 IPC - The judgment discusses the violation of Section 273 Cr.P.C. and the implications of recording evidence in the absence of the accused. It cites the cases of Atma Ram & Others vs. State of Rajasthan and State of Madhya Pradesh vs. Budhram s/o Kunkuram Satnami to support the argument. The court remands the case for re-examination of the witness in the presence of the accused and his pleader.
Fact of the Case:
The accused kidnapped and raped a 7-year-old girl, resulting in her death. The prosecution presented evidence, and the accused was found guilty under various sections of the IPC and the Protection of Children from Sexual Offences Act, 2012.
Finding of the Court:
The trial is vitiated due to the violation of Section 273 Cr.P.C. as the evidence was recorded in the absence of the accused. The court remands the case for re-examination of the witness in the presence of the accused and his pleader.
Issues: Violation of Section 273 Cr.P.C., recording of evidence in the absence of the accused, and the impact on the trial proceedings.
Ratio Decidendi: The court found that the trial was vitiated due to the violation of Section 273 Cr.P.C., which mandates the presence of the accused during the recording of evidence. The court relied on the cases of Atma Ram & Others vs. State of Rajasthan and State of Madhya Pradesh vs. Budhram s/o Kunkuram Satnami to support its decision.
Final Decision: The court remands the case for re-examination of the witness in the presence of the accused and his pleader, and directs the Trial Court to pronounce the judgment afresh within thirty days.
JUDGMENT
Rajeev Kumar Shrivastava, J. - This judgment shall govern the disposal of Criminal Reference Case No. 13/2019 as well as Criminal Appeal No. 9132/2019 as both arise out of judgment dated 26/30.9.2019 passed by Second Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Vidisha (MP) in Special Sessions Trial No. 300002/2016.
2. As per Criminal Reference Case No. 13/2019, Second Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Vidisha (MP) vide judgment dated 26/30.9.2019 in Special Sessions Trial No. 300002/2016, having found the accused guilty under Sections 363, 366-A, 364, 376(2)(i), 376(2)(j), 376(2)(k), 302 and 201 IPC, has inflicted penalty of death sentence and has submitted the matter for confirmation.
3. Criminal Appeal No.9132/2019 has been filed by the accused from jail against the aforesaid judgment, whereby he has been convicted and sentenced as under :-
| Sections | Act | Imprisonment | Fine | Imprisonment in lieu of fine |
| 363 | IPC | Seven years RI | 1000/- | one month additional RI) |
| 366-A | IPC | Ten years RI | 2000/- | two months additional RI |
| 364 | IPC | Ten years RI | 2000/- | two months additional RI |
| 376(2)(i) | IPC | Life Imprisonment | 4000/- | three months additional RI |
| 376(2)(j) | IPC | Life Imprisonment | 4000/- | three months additional RI |
| 376(2)(k) | IPC | Life Imprisonment | 4000/- | three months additional RI |
| 302 | IPC | Penalty of Death Sentence | -- | -- |
| 201 | IPC | Seven years RI | 1000/- | one month additional RI |
It was also directed in the judgment that all the punishments of imprisonment shall run concurrently.
4. The short facts of the case are that on 24.10.2015 in between 2 pm to 7 pm the accused had kidnapped 7 years old prosecutrix from the temple situated outside platform No.6 from the custody of her lawful guardians, thereafter accused committed rape with the minor and killed her and knowingly disappeared the evidence of offence committed by him. According to the prosecution, on 25.10.2015 informant Rajkumar (PW-1) and Gajendra Sahu (PW-2) had seen deadbody in the well of Mallu Patel. They informed the Police Station Civil Line, Vidisha. ASI S.N.S. Solanki (PW-34) reached the spot and registered merg intimation (Ex.P/1). On the basis of merg intimation, Police Station Civil Line, Vidisha registered Merg Case No. 80/2015 (Ex.P/38). S.N.S. Solanki (PW-34) prepared the spot map (Ex.P/5). Thereafter, body of the deceased was taken out from the well and Safina Form (Ex.P/50) was issued. Thereafter post-mortem of the deadbody was conducted. The post-mortem report Ex.P/29 and Ex.P/51 reveals as under :-
"A necked dead body female child lying in supine position on pm table. Rigor mortis present over lower limb. Mouth semi open, eye closed. Conjunctival congestion present and swelling present over face and eye. Cynosis present over the lip and tip of nose. Tongue between the teeth and impression of upper teeth on anterior aspect of tongue and red colour secretion over both nostril region. Ecchymosis present on vertebral aspect of tongue and hypostasis present over the back. Both wrists were open and mud present over the body, more on right hand and peeling of skin over thigh (inner and medial aspect of thigh) and following injuries were present over the body :
(i) Contusion 4cm x 4cm over right frontal region over headm ecchymosis present;
(ii) Contusion 4cm x 4cm over left just above eyebrow;
(iii) Contused abbrasion 3cm x 2cm over right side of neck below the angle of mandible;
(iv) Multiple abbrasions present ove anterior and superior aspect of wound No.(iii), size varies 1cm x 1/4 cm and . 5cm x 1/4cm.
(v) Multiple abbrasions (four) 1 and 1/4cm over right TM Joint (in front of right ear) and .5cm x 1/4cm.
All i
