JUDGMENT

Dharmadhikari, J. -- 1. This criminal appeal assails the judgment dated 21.11.2012 passed by Additional Session Judge, Pichhore, District Shivpuri in Sessions Trial No. 136/2012, whereby, the appellant has been convicted for the offence punishable under section 302 of IPC and sentenced to undergo Life imprisonment with fine of Rs. 1,000/- and under section 498-A of IPC sentenced to undergo three (3) years rigorous imprisonment with fine of Rs. 1,000/- with default stipulation.

2. Prosecution story, found to be proved against the appellant, in short, is that on 21.1.2012, a complaint was lodged by brother of the appellant stating that the appellant lived along with his family in front of his house and at about 8.00 in the morning, the appellant came to his house and informed that he has killed his six years daughter Shaksi. Thereafter, he immediately rushed to the spot and found that Shaksi was dead and her neck was chopped and blood was spread in the room.

3. On Marg Intimation of the complainant, criminal law was triggered and set in motion, investigation agency arrived at spot, prepared Dehati Nalishi (Ex. P/1), Safina Form (Ex. P/2), Naksha Panchayatnama (Ex. P/3) of the dead body and sent it for postmortem. Thereafter, postmortem of the dead body was conducted. The postmortem report (Ex. P/12) reveals as under :-

“A body lying in supine on table, red sweater, orange frock, matted with blood, head with neck lying near trunk only thin tag of skin attached with trunk all vital structure. All major artery of neck, treachea, oesophagus totally cut, eye open, mouth open, face pale, incise cut wound extending from left shoulder to right side of shoulder exposing left humerus head and clavicle.”

4. As per information of the Doctor, the cause of death was haemorrhage and shock due to injury over vital structure of the neck resulted in cardio respiratory failure.

5. The investigating officer investigated the matter and recorded the statement of the witnesses. After completion of necessary investigation, police filed the charge-sheet. The matter was committed for trial. The accused was charged for committing offence punishable under sections 302 & 498-A of IPC. The accused abjured his guilt. Prosecution examined as many as 18 witnesses and exhibited 23 documents to bring home the charge. Whereas, the accused person while confronting the prosecution witnesses exhibited only one document.

6. The trial Court vide impugned judgment found the accused guilty of the offences as aforesaid and imposed the said punishment.

7. The sole contention of learned counsel for the appellant is that the present appellant/accused was not produced from the jail. It is submitted that 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 presence of his pleader and the prosecution witnesses were examined in absence of the appellant, the trial stands vitiated and the same de hors the mandatory provision contained in section 273 CrPC. As a result. whereof, the valuable right of the accused of having prosecution witnesses examined in his presence has been infringed and on this ground alone, the entire proceedings stand vitiated, and for that the judgment based on such proceedings is a nullity in the eyes of law. Moreover, on perusal of the order sheets, it can be seen that personal attendance of the appellant was never dispensed with, in the absence of his pleader as required under section 273 of CrPC. In view of above, the impugned judgment deserves to be set aside, and the matter is required to be relegated to the trial Court for fresh trial. In support of his contentions, reliance is placed on the decisions in Atma Ram & Others v. State of Rajasthan [2019 CrLR (SC) 633] and State of Madhya Pradesh v. Budhram s/o Kunkuram Satnami [1996 CriLJ 46].

8. Per Contra, learned State counsel submitted that the trial Court after appreciating and mars