Recording Evidence in Absence of Accused Violates Section 273 CrPC, Requiring De Novo Examination of Witnesses

The accused, Deepak Pachori, was convicted for the murder of his adoptive mother, Usha Devi, for allegedly pushing her down a staircase, assaulting her with an iron rod, and strangulating her to obtain her fixed deposits totaling approximately Rs. 32,54,000/-.

The accused subsequently walled up the body in a bathroom, which was later recovered based on his memorandum.

The Trial Court sentenced him to death under Section 302 and seven years R.I. under Section 201 of the IPC.

The examination-in-chief of Sanjay Dutt Sharma (PW1) and Rambabu Sharma (PW2) was recorded on April 11, 2025, while the accused and his counsel were absent.

The accused appealed the conviction primarily on the ground of this procedural violation.

1. Whether the recording of evidence (examination-in-chief) of material witnesses in the absence of the accused and his pleader violates the mandate of Section 273 of the Cr.P.C.

2. Whether such a procedural violation vitiates the trial or constitutes a curable irregularity necessitating a remand.

Section 273 of the Cr.P.C. mandates that all evidence must be taken in the presence of the accused or his pleader, except as expressly provided.

Atma Ram v. State of Rajasthan (2019) 20 SCC 481 establishes that while Section 273 is a valuable right, its violation is a curable irregularity under Chapter XXXV of the Code, provided the appellate court ensures no prejudice is caused to the accused.

The court exercised powers under Section 367 (further inquiry) and Section 386 (power to order re-trial) of the Cr.P.C.

The High Court observed that the order-sheet dated April 11, 2025, explicitly recorded that the accused was in judicial custody and his counsel was absent, yet the Trial Court proceeded to record the examination-in-chief of PW1 and PW2.

PW1 and PW2 were critical witnesses regarding the disclosure and recovery of the dead body.

The court reasoned that since the proceedings for death sentence confirmation under Chapter XXVIII are a continuation of the trial, the High Court is duty-bound to ensure fair procedure.

Following the logic in Atma Ram, the court found that recording testimony in the absence of the accused caused serious prejudice.

The court determined that the irregularity could be cured by a partial remand for de novo examination of the impacted witnesses to afford the accused a fair opportunity to watch the witnesses depose.

The matter was remanded to the Trial Court with a directive to re-examine PW1 and PW2 in the presence of the accused, with a final judgment to be pronounced on or before August 25, 2026.

The criminal reference was answered accordingly and the appeal was disposed of.