Chhatrapal Rawat vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE PUSHPENDRA YADAV
th
ON THE 19 OF JUNE, 2026
CRIMINAL REFERENCE CAPITAL No. 10 of 2022
IN REFERANCE OF STATE OF MP
Versus
CHHATRAPAL RAWAT
Appearance:
Shri Deependra Singh Kushwaha - A.A.G., and Shri C.P. Singh - G.A. for State.
Shri Padam Singh - Advocate for respondent.
Shri Vijay Dutta Sharma - Advocate as Amicus Curiae.
WITH
CRIMINAL APPEAL No. 12641 of 2022
CHHATRAPAL RAWAT
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Padam Singh - Advocate for appellant.
Shri Deependra Singh Kushwaha - A.A.G., and Shri C.P. Singh - G.A. for
respondent/State.
JUDGMENT
Per: Justice Gurpal Singh Ahluwalia
By this common judgment, Criminal Reference Capital No. 10/2022
and Criminal Appeal No. 12641/2022 shall be decided.
2. Criminal reference as well as the criminal appeal arises out of
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judgment and sentence dated 05.12.2022 passed by Special Judge (POCSO
Act) / Second Additional Sessions Judge, District Datia in Special Sessions
Trial No. 15/2022, by which appellant/accused has been convicted and
sentenced for the following offences:
Section Imprisonment Fine Default Stipulation
Rs.
363 of IPC Three years R.I.
1000/-
One month additional
R.I.
Rs.
366 of IPC Seven years R.I. Six months R.I.
2000/-
Death
376A of IPC
Sentencce
Rs.
Six months R.I.
5000/-
Rs.
302 of IPC Death Sentence Six months R.I.
5000/-
5(L)/6 of POCSO
Rs.
Death Sentence Six months R.I.
Act 5000/-
3. Criminal Reference No. 10/2022 has been registered on a reference
made by the Trial Court under Section 366 of the Code of Criminal
Procedure, 1973 (in short "CrPC") for confirmation of death sentence,
whereas Criminal Appeal No. 12641/2022 has been filed by the accused
appellant against his conviction.
4, The facts necessary for disposal of present criminal reference as
well as criminal appeal, in short, are that on 09.05.2022, an information was
received by Police Station Goraghat from Control Room, Datia that a dead
body of a nine-year-old girl is lying in a field situated in village Tilaitha.
Accordingly, SHO - Kamal Goyal as well as Sub-Inspector - Vandana
Shakya went to village Tilaitha, where they came to know that dead body of
the deceased girl has been taken away from the field to her village by her
parents. Accordingly, the police party went to the house of the deceased,
where dead body of the deceased was lying under a neem tree situated in
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front of the house of the deceased. On the information given by father of the
deceased, Vandana Shakya recorded the merg intimation. A dehati nalisi was
also lodged by father of the deceased (PW-2) that on 08.05.2022, he had
come to village Tilaitha to attend marriage of one Reetendra. When the
marriage rituals were going on, then at about 01:30 a.m. in the night, his wife
informed him that the deceased is not traceable. Thereafter, father of the
deceased and his wife inquired about the deceased from their relatives, but
they could not get any information about her. Thereafter, father of the
deceased (PW-2) called his brother (PW-4) to village Tilaitha, and after he
came to village Tilaitha, he gave the entire information to him. Thereafter he,
his wife, and his brother started searching for the deceased in the fields. At
about 11:00 a.m., they found the dead body of the deceased in a naked
condition, and her body was drenched with blood. They checked the pulse of
the deceased and found that she had already expired. Thereafter, they brought
the dead body of the deceased to their village. Thus, it was alleged that some
unknown person has committed murder of the deceased after committing
rape on her. The inquest report was prepared after filling up the Safina form.
Postmortem of the dead body of the deceased was got done. Merg No.
16/2022 (Exhibit P-41) was registered, and on 09.05.2022 itself, FIR
(Exhibit P-42) was registered. Statement of cousin sister of the deceased
'A' (PW-1) was recorded, who informed that at about 12:00 in the night, she
and the deceased were sleeping on a cot. The music was being played on the
DJ. Appellant, who is a maternal uncle by relation, came to them and took
them inside the room where a cot was already lying. Appellant instructed the
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witness that she has to sleep on the cot, but she did not sleep and rushed
towards her mother from the door situated on the back side of the room.
When again she came nearer to the cot where she was sleeping, then she
found that the deceased was being taken away by appellant. When dead body
of the deceased was recovered, then she narrated the entire incident to her
mother and mother of the deceased. The clothes, nail clippings of both
hands, vaginal smear, vaginal slide, anal swab, hyoid bone, and viscera were
preserved and were handed over to the police for chemical and forensic
examination. Cause of death of the deceased was found to be asphyxia due to
strangulation. Death of the deceased was found to be homicidal in nature,
and all the injuries sustained by the deceased were caused within a period of
24 hours. The possibility of sexual assault and rape was also found. On
10.05.2022, the spot map was prepared. The scientific officer also came to
the spot. The blood-stained leaves and woods, plain woods and leaves, and
Aadhaar card of the accused were also seized from the spot vide seizure
memo Exhibit P-9. Appellant was arrested, and his disclosure statement
(Exhibit P-10) was recorded. On the basis of disclosure made by the
appellant, shirt of the appellant, as well as jeans of the deceased and pink-
coloured handkerchief, which was stained with blood, were seized vide
seizure memo Exhibit P-11. Statements of the cousin sister of the deceased,
'A' (PW-1), complainant (PW-2), and mother of the deceased (PW-3) were
got recorded under Section 164 of the CrPC. The deceased was medically
examined. The blood sample of the deceased was collected for the DNA test.
The incriminating articles were sent to Forensic Science Laboratory, Bhopal
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vide Draft Ex. P-31 and P-34. The hyoid bone preserved in formalin was
sent to the Forensic Medico-Legal Institution, Gandhi Medical College,
Bhopal vide draft Exhibit P-39. The school records of the deceased were
recovered. The police, after completing the investigation, filed a charge sheet
against the appellant under Sections 376AB, 302, 376A, 354A of the IPC and
under Sections 5/6 of the POCSO Act, 2012.
5. The Trial Court, by order dated 17.06.2022, framed charges under
Sections 363, 376, 366, 376AB, 376A, 302 of the IPC and under Sections
5L/6 of the POCSO Act.
6. Appellant abjured his guilt and pleaded not guilty.
7. Prosecution examined cousin sister of the deceased, 'A' (PW-1),
father of the deceased (PW-2), Mausi of the deceased (PW-3), Tau of the
deceased (PW-4), mother of the deceased (PW-5), Mausa of the deceased
(PW-6), Dr. Anil Mangeshkar (PW-7), Dr. Daya Shankar Sharma (PW-8),
Dr. Jaibharat (PW-9), Ramkhilawan Jatav (PW-10), Sanjay Singh Rawat
(PW-11), Dr. Satish Kumar Man (PW-12), Vandana Shakya (PW-13), Indal
Singh Senger (PW-14), Priyanka Bhadoriya (PW-15), Lal Singh (PW-16),
Bhupendra Singh Jatt (PW-17), Dheeraj Kaushal (PW-18), Vikram Shivhare
(PW-19), and Kamal Kishore Goyal (PW-20).
8. Appellant did not examine any witness in his defence.
9. The Trial Court, by impugned judgment and sentence dated
05.12.2022 passed in Special Sessions Trial No. 15/2022, convicted the
appellant and sentenced him for the offences mentioned above.
10. Although conviction of the appellant was challenged by counsel
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for the appellant on multiple grounds, but it was submitted by counsel for
appellant that the evidence of Kamal Kishore Goyal (PW-20), who was the
investigating officer, was recorded in absence of the appellant. By referring
to Section 273 of the CrPC, it is submitted that since the investigating officer
Kamal Kishore Goyal (PW-20) was examined in absence of the appellant,
therefore, entire trial has vitiated, and thus, appellant is liable to be acquitted.
11. Per contra, it is submitted by counsel for State that it is true that
although Kamal Kishore Goyal (PW-20) was examined and cross-examined
on 17.10.2022 and further cross-examined on 18.10.2022 but, after going
through the order sheets of the Trial Court, fairly conceded that on both
dates, appellant was not produced before the Court, and the evidence of
Kamal Kishore Goyal (PW-20) was recorded in absence of the appellant.
However, it is submitted that the examination of a witness in absence of the
accused would not vitiate the trial, and at the most, it can be said to be a
curable defect which can be taken care of by remanding the matter back to
the Trial Court to record the evidence of Kamal Kishore Goyal (PW-20)
afresh in the presence of appellant.
12. Heard learned counsel for parties.
13. Before considering the facts of the case, this Court would like to
consider the law laid down by the Supreme Court with regard to the
examination of witnesses in the absence of accused. The Supreme Court in
the case of Atma Ram and others v. State of Rajasthan, reported in (2019) 20
SCC 481, has held as under.
" 17. Section 273 opens with the expression “Except as otherwise expressly
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provided.…” By its very nature, the exceptions to the application of Section
273 must be those which are expressly provided in the Code. Shri Hegde is
right in his submission in that behalf. Sections 299 and 317 are such express
exceptions provided in the Code. In the circumstances mentioned in the said
Sections 299 and 317, the contents of which need no further elaboration, the
courts would be justified in recording evidence in the absence of the accused.
Under its latter part, Section 273 also provides for a situation in which
evidence could be recorded in the absence of the accused, when it says “when
his personal attendance is dispensed with, in the presence of his pleader”.
There was a debate during the course of hearing in the present matter whether
such dispensation by the Court has to be express or could it be implied from
the circumstances. We need not go into these questions as the record clearly
indicates that an objection was raised by the advocate appearing for the
appellants right at the initial stage that the evidence was being recorded
without ensuring the presence of the appellants in court. There was neither any
willingness on the part of the appellants nor any order or direction by the trial
court that the evidence be recorded in the absence of the appellants. The
matter, therefore, would not come within the scope of the latter part of Section
273 and it cannot be said that there was any dispensation as contemplated by
the said section. We will, therefore, proceed on the footing that there was no
dispensation and yet the evidence was recorded without ensuring the presence
of the accused. The High Court was, therefore, absolutely right in concluding
that Section 273 stood violated in the present matter and that there was an
infringement of the salutary principle under Section 273.
18. The submissions advanced by Shri Sanjay Hegde, learned Senior Advocate,
relying upon paragraphs in Jayendra Vishnu Thakur v. State of Maharashtra
[Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104 : (2010) 2
SCC (Cri) 500] as quoted above, that the right of the accused to watch the
prosecution witness is a valuable right, also need not detain us. We accept that
such a right is a valuable one and there was an infringement in the present case.
What is material to consider is the effect of such infringement. Would it vitiate
the trial or such an infringement is a curable one?
19. The emphasis was laid by Dr Manish Singhvi, learned Senior Advocate for
the State on the articles relied upon by him to submit that the theory of
“harmless error” which has been recognised in criminal jurisprudence and that
there must be a remedial approach. Again, we need not go into these broader
concepts as the provisions of the Code, in our considered view, are clearly
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indicative and lay down with clarity as to which infringements per se, would
result in vitiation of proceedings. Chapter XXXV of the Code deals with
“Irregular Proceedings”, and Section 461 stipulates certain infringements or
irregularities which vitiate proceedings. Barring those stipulated in Section
461, the thrust of the Chapter is that any infringement or irregularity would not
vitiate the proceedings unless, as a result of such infringement or irregularity,
great prejudice had occasioned to the accused. Shri Hegde, learned Senior
Advocate was quick to rely on the passages in Jayendra Vishnu Thakur
[Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104 : (2010) 2
SCC (Cri) 500] to submit that the prejudice in such cases would be inherent or
per se. Paras 57 and 58 of the said decision were as under: (SCC p. 129)
“57. Mr Naphade would submit that the appellant did not suffer any prejudice.
We do not agree. Infringement of such a valuable right itself causes prejudice.
In S.L. Kapoor v. Jagmohan [S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379] this
Court clearly held: (SCC p. 395, para 24)
‘24. … In our view the principles of natural justice know of no exclusionary
rule dependent on whether it would have made any difference if natural justice
had been observed. The non-observance of natural justice is itself prejudice to
any man and proof of prejudice independently of proof of denial of natural
justice is unnecessary. It ill comes from a person who has denied justice that
the person who has been denied justice is not prejudiced.’
58. In A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC
602 : 1988 SCC (Cri) 372] a seven-Judge Bench of this Court has also held that
when an order has been passed in violation of a fundamental right or in breach
of the principles of natural justice, the same would be a nullity. (See also State
of Haryana v. State of Punjab [State of Haryana v. State of Punjab, (2004) 12
SCC 673] and Rajasthan SRTC v. Zakir Hussain [Rajasthan SRTC v. Zakir
Hussain, (2005) 7 SCC 447 : 2005 SCC (L&S) 945] .)”
20. The aforementioned observations in Jayendra Vishnu Thakur [Jayendra
Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104 : (2010) 2 SCC (Cri)
500] must be read in the peculiar factual context of the matter. The accused
Jayendra Vishnu Thakur was tried in respect of certain offences in a court in
Delhi and at the same time he was also an accused in a trial under the
provisions of the TADA Act [ Terrorists and Anti Disruptive Activities
(Prevention) Act, 1987.] in a court in Pune. The trial in the court in Pune
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proceeded on the basis that Jayendra Vishnu Thakur was an absconding
accused. The evidence was thus led in the trial in Pune in his absence when he
was not sent up for trial, at the end of which all the accused were acquitted.
However, in an appeal arising therefrom, this Court convicted some of the
accused for the offences with which they were tried. In the meantime, Jayendra
Vishnu Thakur was convicted by the court in Delhi and was undergoing
sentence imposed upon him. Later, he was produced before the court in Pune
with a supplementary charge-sheet and charges were framed against him along
with certain other accused. A request was made by the Public Prosecutor that
the evidence of some of the witnesses, which was led in the earlier trial be read
in evidence in the fresh trial against Jayendra Vishnu Thakur as those witnesses
were either dead or not available to be examined [Jayendra Vishnu Thakur v.
State of Maharashtra, (2009) 7 SCC 104, paras 8 & 9 : (2010) 2 SCC (Cri) 500]
. The request was allowed which order of the court in Pune was under
challenge before this Court. It was found by this Court that the basic premise
for application of Section 299 of the Code was completely absent. The accused
had not absconded. He was very much in confinement and could have been
produced in the earlier trial before the court in Pune. Since the requirements of
Section 299 were not satisfied, the evidence led on the earlier occasion could
not be taken as evidence in the subsequent proceedings. The witnesses were not
alive and could not be re-examined in the fresh trial nor could there be cross-
examination on behalf of the accused. If the evidence in the earlier trial was to
be read in the subsequent trial, the accused would be denied the opportunity of
cross-examination of the witnesses concerned. Thus, the prejudice was
inherent. It is in this factual context that the observations of this Court have to
be considered. Same is not the situation in the present matter. It is not the
direction of the High Court to read the entire evidence on the earlier occasion
as evidence in the de novo trial. The direction is to re-examine those witnesses
who were not examined in the presence of the appellants. The direction now
ensures the presence of the appellants in the Court, so that they have every
opportunity to watch the witnesses deposing in the trial and cross-examine the
said witnesses. Since these basic requirements would be scrupulously observed
and complied with, there is no prejudice at all.
21. The learned Amicus Curiae was right in relying upon the provisions of
Chapter XXVIII (Sections 366 to 371 of the Code) and Chapter XXIX
(Sections 372 to 394 of the Code). He was also right in saying that Chapter
XXVIII was more relevant in the present matter and the judgment of the High
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Court was supported more strongly by the provisions of Chapter XXVIII. The
provisions of Sections 366 to 368 and Sections 386 and 391 are quoted here for
ready reference:
“366. Sentence of death to be submitted by Court of Session for confirmation.
—(1) When the Court of Session passes a sentence of death, the proceedings
shall be submitted to the High Court, and the sentence shall not be executed
unless it is confirmed by the High Court.
(2) The Court passing the sentence shall commit the convicted person to jail
custody under a warrant.
367. Power to direct further inquiry to be made or additional evidence to be
taken.—(1) If, when such proceedings are submitted, the High Court thinks
that a further inquiry should be made into, or additional evidence taken upon,
any point bearing upon the guilt or innocence of the convicted person, it may
make such inquiry or take such evidence itself, or direct it to be made or taken
by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the convicted
person may be dispensed with when such inquiry is made or such evidence is
taken.
(3) When the inquiry or evidence (if any) is not made or taken by the High
Court, the result of such inquiry or evidence shall be certified to such Court.
368. Power of High Court to confirm sentence or annual conviction.—In any
case submitted under Section 366, the High Court—
(a) may confirm the sentence, or pass any other sentence warranted by law, or
(b) may annul the conviction, and convict the accused of any offence of which
the Court of Session might have convicted him, or order a new trial on the
same or an amended charge, or
(c) may acquit the accused person:
Provided that no order of confirmation shall be made under this section until
the period allowed for preferring an appeal has expired, or, if an appeal is
presented within such period, until such appeal is disposed of.
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386. Powers of the appellate court.—After perusing such record and hearing
the appellant or his pleader, if he appears, and the Public Prosecutor if he
appears, and in case of an appeal under Section 377 or Section 378, the
accused, if he appears, the appellate court may, if it considers that there is no
sufficient ground for interfering, dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such order and direct that
further inquiry be made, or that the accused be re-tried or committed for trial,
as the case may be, or find him guilty and pass sentence on him according to
law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or discharge the accused, or
order him to be re-tried by a court of competent jurisdiction subordinate to
such appellate court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or discharge the accused or
order him to be re-tried by a court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be
just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement:
Provided further that the appellate court shall not inflict greater punishment for
the offence which in its opinion the accused has committed, than might have
been inflicted for that offence by the court passing the order or sentence under
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appeal.
*
391. Appellate court may take further evidence or direct it to be taken.—(1) In
dealing with any appeal under this Chapter, the appellate court, if it thinks
additional evidence to be necessary, shall record its reasons and may either take
such evidence itself, or direct it to be taken by a Magistrate, or when the
appellate court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the
Magistrate, it or he shall certify such evidence to the appellate court, and such
Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the
additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions
of Chapter XXIII, as if it were an inquiry.”
22. According to Section 366 when a Court of Session passes a sentence of
death, the proceedings must be submitted to the High Court and the sentence of
death is not to be executed unless it is confirmed by the High Court. Section
367 then proceeds to lay down the power of the High Court to direct further
enquiry to be made or additional evidence to be taken. Section 368, thereafter,
lays down the power of the High Court to confirm the sentence so imposed or
annul the conviction. One of the powers which the High Court can exercise is
one under Section 368(c) of the Code and that is to “acquit the accused
person”. Pertinently, the power to acquit the person can be exercised by the
High Court even without there being any substantive appeal on the part of the
accused challenging his conviction. To that extent, the proceedings under
Chapter XXVIII which deal with “submission of death sentences for
confirmation” is a proceeding in continuation of the trial. These provisions
thus entitle the High Court to direct further enquiry or to take additional
evidence and the High Court may, in a given case, even acquit the accused
person. The scope of the chapter is wider. Chapter XXIX of the Code deals
with “Appeals”. Section 391 also entitles the appellate court to take further
evidence or direct such further evidence to be taken. Section 386 then
enumerates powers of the appellate court which inter alia includes the power to
“reverse the finding and sentence and acquit or discharge the accused, or order
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him to be re-tried by a court of competent jurisdiction subordinate to such
appellate court or committed for trial”. The powers of the appellate court are
equally wide. The High Court in the present case was exercising powers both
under Chapters XXVIII and XXIX of the Code. If the power can go to the
extent of ordering a complete retrial, the exercise of power to a lesser extent,
namely, ordering de novo examination of twelve witnesses with further
directions as the High Court has imposed in the present matter, was certainly
within the powers of the High Court. There is, thus, no infraction or
jurisdictional error on the part of the High Court.
23. It is true that as consistently laid down by this Court, an order of retrial of a
criminal case is not to be taken resort to easily and must be made in exceptional
cases. For example, it was observed by this Court in Ukha Kolhe v. State of
Maharashtra [Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 : AIR
1963 SC 1531 : (1963) 2 Cri LJ 418] , as under: (AIR p. 1537, para 11)
“11. An order for retrial of a criminal case is made in exceptional cases, and
not unless the appellate court is satisfied that the court trying the proceeding
had no jurisdiction to try it or that the trial was vitiated by serious illegalities or
irregularities or on account of misconception of the nature of the proceedings
and on that account in substance there had been no real trial or that the
prosecutor or an accused was, for reasons over which he had no control,
prevented from leading or tendering evidence material to the charge, and in the
interests of justice the appellate court deems it appropriate, having regard to
the circumstances of the case, that the accused should be put on his trial again.
An order of retrial wipes out from the record the earlier proceeding, and
exposes the person accused to another trial which affords the prosecutor an
opportunity to rectify the infirmities disclosed in the earlier trial, and will not
ordinarily be countenanced when it is made merely to enable the prosecutor to
lead evidence which he could but has not cared to lead either on account of
insufficient appreciation of the nature of the case or for other reasons. Harries,
C.J., in Ramanlal Rathi v. State [Ramanlal Rathi v. State, 1950 SCC OnLine
Cal 62 : AIR 1951 Cal 305] : (SCC OnLine Cal para 10)
‘10. If at the end of a criminal prosecution the evidence leaves the Court in
doubt as to the guilt of the accused the latter is entitled to a verdict of not
guilty. A retrial may be ordered when the original trial has not been satisfactory
for particular reasons, for example, if evidence had been wrongly rejected
which should have been admitted, or admitted when it should have been
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rejected, or the Court had refused to hear certain witnesses who should, have
been heard. But, I have never known of a case where a retrial can be ordered
on the ground that the prosecution did not produce the proper evidence and did
not know how to prove their case.’ ”
"
14. Section 273 of Cr.P.C. reads as under:
"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."
15. In the present case, accused was in jail. Therefore, provisions of
Section 317 of Cr.P.C. will not be applicable. Only when an application is
filed under Section 317 of Cr.P.C. and a statement is made by accused that
his presence through his counsel may be accepted and he would not have any
objection regarding the question of identity and recording of evidence of the
witnesses in his absence, only then the effect of such declaration can be
considered. Furthermore, before considering the rigours of Section 317, the
Trial Court has to record its reason that the personal attendance of the
accused before the Court is not necessary in the interest of justice or the
accused is persistently disturbing the proceedings. However, in the present
case, appellant/accused was in jail and was not produced by the prosecution.
Therefore, there was no question on the part of appellant of disturbing the
proceedings in the Court. Furthermore, there is no such observation by the
Court in any of the order sheets that appellant/accused had tried to disrupt
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 25-06-2026
02:45:52 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:17770
15 CRA-12641-2022
the Court proceedings. From the order sheets of the Trial Court, it is clear
that on 17.10.2022, Kamal Kishore Goyal (PW-20) was examined, and on
18.10.2022, he was cross-examined by counsel for appellant/accused.
Ordersheet dated 17.10.2022 reads as under:
"
रा य ारा ी आर.सी. चतुव द वशेष लोक अिभयोजक उप थत ।
,
आरोपी छ $पाल जेल दितया से उप थत नह ं केवल वारंट )ा* । उसक + ओर से ी
संजोगानंद यादव अिधव /ा उप थत ।
)करण अिभयोजन सा 1य हेतु िनयत है।
20
अिभयोजन सा 3ी कमल 5कशोर गोयल अ.सा. उप थत ।
मालखाना अनुभाग से )करण म 7 ज *शुदा संप 8 मंगाई गई।
सा 3ी का मु :य पर 3ण पूण < 5कया गया। =यायालय समय समा * होने से सा 3ी का )ित
पर 3ण आगामी 5दनांक के िलए थिगत 5कया गया। सा 3ी को सा 1य से उ =मु/ 5कया
गया। सा 3ी के कथन क + दो )ित िनकालकर मूल )ित म 7 संपूण < कथन लेख कर िलफाफे म
सील बंद कर िलफाफा स 5हत )करण के साथ संल Aन 5कया गया तथा कथन क + 5तीय
)ित को )करण म 7 संल Aन 5कया गया।
सा 3ी को आगामी 5दनांक हेतु पाबंद 5कया जाता है एवं सा 3ी को िनद िशत 5कया जाता है
11
5क वह िनयत 5दनांक को )ातः बजे =यायालय म 7 उप थत रहे।
मालखाना अनुभाग से )ा* संप 8 को सीलबंद 5कया गया। िन Cपादन िल पक को
िनद िशत 5कया जाता है 5क उपरो / संप 8 को मालखाना अनुभाग म 7 जमा 5कया जावे।
18.10.2022 "
)करण अिभयोजन सा 1य हेतु 5दनांकः को ) तुत हो।
Ordersheet dated 18.10.2022 reads as under:
" रा य ारा ी आर.सी. चतुव द वशेष लोक अिभयोजक उप थत ।
,
आरोपी छ $पाल जेल दितया से उप थत नह ं केवल वारंट )ा* । उसक + ओर से ी
संजोगानंद यादव अिधव /ा उप थत ।
)करण अिभयोजन सा 1य हेतु िनयत है।
20
अिभयोजन सा 3ी कमल 5कशोर गोयल अ.सा. उप थत ।
सा 3ी का )ितपर3ण एवं पुनः पर 3ण उपरांत उ =मु/ 5कया गया। सा 3ी के )ित
पर 3ण क + दो )ित िनकालकर मूल )ित म 7 संपूण < कथन लेख कर िलफाफे म 7 सील बंद कर
िलफाफा स 5हत )करण के साथ संल Aन 5कया गया तथा कथन क + 5तीय )ित को )करण म
संल Aन 5कया गया।
अिभयोजन ारा अ =य कोई सा 1य न देना Dय/ करते अिभयोजन सा 1य समा *
हुए
-
घो षत 5कये जाने का िनवेदन 5कया । अिभयोजन सा 1य समा * घो षत क + जाती है।
)करण अिभयु / पर 3ण एवं )ितभूित आवेदन ) तुित हेतु िनयत 5कया जाता है।
43-
अिभयु / को िनद िशत 5कया जाता है 5क वह धारा क दं. ).सं. के )ावधानF के अ =तग<त
10/-
हजार Gपये क + स 3म जमानत तथा इतनी ह रािश का मुचलके इस आशय का पेश कर
/
5क इस =यायालय के िनण <य के वGI कोई अपील पुनर 3ण यािचका ) तुत होती है तो
/
वह माननीय अपीलीय पुनर 3ण यािचका =यायालय म 7 उप थित हेतु सूचना प $ )ा*
होता है तो संबंिधत =यायालय म 7 उप थत रहेगा।
437
)करण अिभयु / पर 3ण एवं धारा दं. ).सं. के. )ितभूित ) तुित हेतु 5दनांक
03.11.2022 "
को ) तुत हो।
From the aforesaid order sheets, it is clear that even no undertaking or
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 25-06-2026
02:45:52 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:17770
16 CRA-12641-2022
consent was given by counsel for appellant as well as appellant for recording
the evidence of witness in the absence of appellant. Even no reasons were
assigned by the prosecution for not producing him before the Trial Court. No
attempt was made by the Trial Court to ensure the appearance of appellant
even through video conferencing.
16. Furthermore, once the appellant was in jail and it was the duty of
the prosecution to produce him, and without explaining any reason for his
non-production, by no stretch of imagination it can be said that there was any
implied consent or undertaking by the appellant/accused for examination of
witnesses in his absence.
17. Evidence of Investigating Officer is very important to adjudicate
the guilt of the accused. The accused may be required to take certain
explanations from the Investigation Officer. Thus, the examination and
cross-examination of Kamal Kishore Goyal (PW-20) in absence of
accused/appellant has caused prejudice to the appellant. The examination
and cross-examination of this witness was contrary to the mandatory
provisions of Section 273 of Cr.P.C. However, in the light of Judgement of
Supreme Court in the case of Atma Ram (supra), it is clear that examination
of the witnesses in absence of the accused will be a curable irregularity.
18. Since this mistake committed by the Trial Court would not vitiate
the Trial and it can only be placed under the category of irregularity,
therefore, this Court is of considered opinion that by setting aside the
impugned judgment and sentence passed by the Trial Court, matter can be
remanded back to the Trial Court to record the evidence of Kamal Kishore
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 25-06-2026
02:45:52 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:17770
17 CRA-12641-2022
Goyal (PW-20) afresh. However, counsel for appellant submitted that a time
frame guideline should be issued so that there may not be any further delay
in disposal of the trial. The Counsel for State also assured that they will
produce the witness within a period of one month from today.
19. Accordingly, on account of non-compliance of Section 273 of
Cr.P.C., judgment and sentence dated 05.12.2022 passed by Special Judge
(POCSO Act) / Second Additional Sessions Judge, District Datia in Special
Sessions Trial No. 15/2022 is hereby set aside, and the matter is remanded
back to the Trial Court to re-examine Kamal Kishore Goyal (PW-20) in
presence of the accused/appellant. The prosecution shall produce
him positively within a period of one month from today.
20. It is made clear that neither the prosecution nor the accused would
be entitled to lead any other evidence, and no one will be allowed to make
any application for examination of any other witness.
21. It is made clear that in case if some new facts come on record on
account of the examination of Kamal Kishore Goyal (PW-20), then the same
shall also be put to appellant in his statement under Section 313 of Cr.P.C.
by examining the accused only for the said limited purpose.
Accused/appellant shall not be entitled to raise any additional defence which
he had not taken in the trial or in his statement under Section 313 of Cr.P.C.
22. It shall be the duty of prosecution to ensure the presence of Kamal
Kishore Goyal (PW-20) on the date which shall be fixed by the Trial Court,
and the prosecution shall keep the appellant personally present before the
Trial Court.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 25-06-2026
02:45:52 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:17770
18 CRA-12641-2022
23. In case appellant intends to engage any new lawyer, then his prayer
for a short adjournment to enable him to engage a lawyer of his choice shall
also be accepted. However, it is made clear that in such a situation, the next
date for examination of witness shall not be beyond a period of 10 days,
because 10 days' time is sufficient for the lawyer to make preparations. In all,
the examination of prosecution witness and further examination of the
accused under Section 313 of Cr.P.C. must be completed within a period of
one month from today, i.e., on or before 20.07.2026. The Trial Court shall
thereafter fix the case for final arguments within a period of 15 days
thereafter, i.e., up to 04.08.2026, and shall positively pronounce the
judgment on or before 19.08.2026.
24. Office is directed to immediately return the record of the Trial
Court so that no delay is caused on account of non-availability of the record
before the Trial Court.
25. With aforesaid observations, criminal reference is answered
accordingly, and Criminal Appeal No. 12641/2022 is finally disposed of.
(G. S. AHLUWALIA)
(PUSHPENDRA YADAV)
JUDGE
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 25-06-2026
02:45:52 PM