Madhya Pradesh High Court
Yogesh Nath @ Jogesh Nath vs The State Of Madhya Pradesh on 6 September, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav, Vivek Agarwal
1
CRRFC.09/2019
The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath
&
Criminal Appeal No.6086/2019
Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT:
HON'BLE MR. JUSTICE SANJAY YADAV
HON'BLE MR. JUSTICE VIVEK AGARWAL
CRIMINAL REFERENCE CASE NO.09/2019
The State of Madhya Pradesh
Vs.
Yogeshnath @ Jogeshnath
State : Shri F.A. Shah, learned Public Prosecutor.
Respondent/accused : Shri V.D. Sharma, Shri Vivek Jain and Shri
Shailendra Singh Kushwaha, learned
counsel.
&
CRIMINAL APPEAL NO.6086/2019
Yogeshnath @ Jogeshnath
-Vs-
The State of Madhya Pradesh
Appellant : Shri V.D. Sharma, Shri Vivek Jain and Shri
Shailendra Singh Kushwaha, learned
counsel.
Respondent/State : Shri F.A. Shah, learned Public Prosecutor.
Whether approved for reporting : Yes/No
2
CRRFC.09/2019
The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath
&
Criminal Appeal No.6086/2019
Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh
JUDGMENT
(06/09/2019) Per Justice Sanjay Yadav:
Fifth Additional Sessions Judge & Special Judge [Protection of Children From Sexual Offences Act, 2012], Gwalior (M.P.), vide judgment dated 06.07.2019, in Special Case No.122/2017, having found the accused person guilty under Sections 363, 302, 201 IPC and under Section 3/4 of Protection of Children From Sexual Offences Act, 2012 has inflicted penalty of death sentence and has submitted the matter for confirmation forming subject-matter of Criminal Reference Case No.09/2019. The accused also has preferred an appeal vide Criminal Appeal No.6086/2019 under Section 374 Code of Criminal Procedure, 1973, being aggrieved by the conviction and imposition of death penalty.
(2) Dead body of an average male child approximately 10 years of age was found in a deep pit in village Baran, near Laxminarayan Crusher, on the morning of 29.04.2017. On being informed, police party came to the spot led by Sub-Inspector Hemlata Singh (PW-13) Police Station Bahodapur, District Gwalior (M.P.), at 09:30 am. On the spot, she met Ashok Adiwasi (PW-1). The body was stark naked;
there were injury marks. Inquest report (Ex.P/4) was prepared in presence of Ashok Adiwasi (PW-1), Mohd. Jamiluddin (PW-11), Shareef Khan, Mangal Singh and Kallu Adiwasi (PW-12). The body 3 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh was sent for the post mortem which was performed by Dr. Sarthak Juglan and Dr. Heeralal Manjhi (PW-7). As per post mortem report (Ex.P/10) following injuries were found on the body of the deceased:
Ante mortem injuries:
1. Abrasion present along margins of upper and lower eyelid along entire perimeter;
2. Abrasion present along lateral 1/3 of upper lip including at joining area of left lateral angle of mouth size 3.2 x 1.6 cm;
3. Lacerated wound over floor of mouth size 3.5 x 1.5 cm;
4. Multiple abrasion present over chest various in size 0.5x0.5 to 1x1 cm;
5. Contusion present over left illiac crest size 3.5x2.5 cm;
6. Multiple abrasion present over back of body various in size 0.2x0.1 cm to 1.5x 1 cm;
7. Abrasion present left shoulder size 3x2 cm;
8. Abrasion (graze) present over posterior trunk over left of mid-line in lumber region in an area 8x6.5cm. There are small size superficial laceration skin present;
9. Two bruise present over anterior abdominal wall above pubic bone size 1x1 cm each 2 cm apart.
Lower border of mandible on entire right side neck multiple small abrasion scattered on the left hand side of neck the mark is in form well defined abrasion running laterally slightly upwards and following lateral contour of neck posteriorly where it is visible as interrupted series of 4 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh abrasion crossing mid-line and meeting its counter part on right hand side, which can be traced frontly on dissecting muscular layer of neck deep reddish in colour."
As per opinion of the doctor, the cause of death was due to asphyxia as a result of compression of neck by ligature. Ligature mark appears to be of strangulation. Ante mortem injuries over head also evidently caused by hard and blunt object. Death is homicidal. Evidence of penetrative anal assault present. Carnal injury present. Doctor collected (1) Tabize and thread (2) Nail scrape (3) Nail mud (4) Mini DV (5) Anal Swab (6) two bottle viscera (i) stomach and its contents
(ii) pieces of liver, spleen, kidney (7) Salt (8) Seal. The material was sealed, packed and handed over to the police constable concerned.
(3) The investigating officer Hemlata Singh (PW-13) who had reached the spot recorded Dehati Nalisi Marg (Ex.P/1) on 29.04.2017 on the report of Ashok Adiwasi (PW-1) who informed that on 28.04.2017 in the evening at 6 pm his elder son Sanjay Adiwasi, the deceased, aged 10 years, was present in the marriage ceremony of his brother-in-law's daughter, Varsha, in the neighbourhood. His other children Arti, Pooja (PW-4), Daulat had taken their meals and come back home. But Sanjay (Deceased) did not come. And despite search in neighbourhood in night, but did not find him. In the morning of 29.04.2017, someone from Baran village who had gone to attend the 5 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh nature's call found the dead body of his son. Thereafter, he came and found the naked body of his son having injuries on the right side of his head. On said information, the case was registered at zero number under Section 174 Cr.P.C. That following were seized from the scene of crime Ex.P/2:
¼1½ ?kVuk LFky ls [kwu vywnk feÍh ,d IykfLVd dh iUuh esa j[kh xbZA ¼2½ ?kVuk LFky ls lknk feÍh ,d IykfLVd dh iUuh esa j[kh xbZA ¼3½ ,d 'kVZ pkS[kkus dh vklekuh jax] /kkjhnkjA ¼4½ ,d isUV dkyk QqyA in presence of Ashok Adiwasi (PW-1) and Mangal Singh. Spot Map Ex.P/5 was prepared, witnessed by Ashok Adiwasi (PW-1). Thereafter Sub-Inspector Hemlata Singh (PW-13) submitted the Marg 32/17, marg diary with papers (Ex.P/14) to the Station House Officer on the very same day i.e. 29.04.2017 vide Ex.P/13. Wherein on the basis of the statement of Ku. Pooja (PW-4) under Section 161 Cr.P.C. during course of enquiry on merg report she opined that one Yogesh alias Jogesh Nath was the suspect as he was found of having given five rupees' coin to Sanjay, the deceased and had taken him to the shop. The police statement of Ashok Adiwasi (PW-1) and Rajani (PW-3) was also referred to who reportedly stated that the suspect had given Ten Rupees to the deceased and took him to the shop. And that the suspect was absent on 28.04.2017 and on 29.04.2017 at 4 am had 6 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh washed his bloodstained shirt and went away. On the basis whereof, Crime No.260/2017 was registered vide FIR dated 29.04.2017 for offences punishable under Sections 377, 302 and 201 IPC and under Sections 3 and 4 of the Protection of Children From Sexual Offences Act, 2012 (Ex.P/15). The suspect accused, present appellant, was arrested on 03.05.2017 at 2310 hrs. vide Ex.P/11. Memorandum under Section 27 Evidence Act was recorded on 03.05.2017 at 2355 hrs vide Ex.P/17. Wherein he narrated the manner in which the crime was given effect to. On his instance on 04.05.2017 at 09 am a full sleeve shirt, dark green colour having two black and white dots printed on it and had bloodstains which appeared to have been washed; and one old blue jean pant (trouser) were seized. At 09:50 am on 04.05.2017, the suspect accused got recovery of the stone said to have been used for commission of crime. The stone was seized vide Ex.P/7 and was kept in sealed cover. At 12:40 pm, the suspect accused was medically examined vide Ex.P/9; wherein, it was found:
(1) Young healthy male, well oriented in time, place & person, concerned.
(2) Secondary sexual character well developed.
(3) Nothing is suggestive that the person examined is unable to perform sexual intercourse.
(4) A reddish grey colour chaddi taken from his body.7 CRRFC.09/2019
The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh (5) Pubic hair taken from his pubic.
(6) Two semen slides made from his semen.
(4) Scene of Crime confirmation Panchnama (Ex.P-12) and prepared site map witnessed by Kallu Adiwasi (PW-12) and Kunnu.
That the sample of blood of the suspect accused was taken in Central Jail, sealed and packed in box and was handed over to Head Constable Radheshyam Yadav, vide Ex.P/18. That vide Ex.P/19 seizure of:
¼1½ ,d lhy can iSd esa lat; S/o v'kksd mez 10 dh tSdsV with FkzhM ¼2½ ,d lhy can iSd eas e`rd dh Nail mud finger.
¼3½ ,d lhy can iSd esa ued dk iSdsV
¼4½ ,d lhy can iSd esa e`rd ds PM dh DVD dSlsV
¼5½ ,d IykfLVd ds lhy can fMCCks esa vuy Lokc gS
¼6½ ,d IykfLVd ds lhy can fMCcs esa LVed and its contents
¼7½ ,d lhy can IykfLVd ds iSdsV esa ihlsl vkWQ fyoj] LIyhu fdMuh
ds
¼8½ ,d lhy can iSdsV esa lhy uewuk nks dkxt ijA
was recorded. The seizure was by HC Radheshyam Yadav. Whereas vide Ex.P/21 seizure of ¼1½ I;wfcd gs;j 'khy cUn ¼2½ lheu LykbM 'khy cUn ¼3½ diMksa dh iksVyh ¼4½ ,d 'khy uewuk of the suspect accused was recorded. Viscera of the deceased and sealed packet of salt received from JAH, Gwalior after post mortem was sent to the Regional Forensic Science Laboratory on 05.05.2017, vide Ex.P/22. Similarly material collected from the scene of crime i.e. (1) one sealed packet 8 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh containing bloodstained soil (2) one sealed packet of plain soil (3) one sealed packet made of cloth containing One shirt, one pant and a scarf of deceased Sanjay Adiwasi and a sealed packet containing nail mud finger (deceased), one sealed packet containing anal swab (deceased) and the sealed packet containing pubic hair, two semen slides, one sealed packet made of cloth containing clothes, one sealed packet of cloth containing one pant, one shirt having spots of blood of the suspect accused and a sealed stone approximately of 3 kg were also sent to the RFSL, Gwalior on 05.05.2017, Ex.P/23. That vide communication dated 04.08.2017, Ex.P/24, request was made to the RFSL for DNA profile of (1) ,d lhycan diMs dh iksVyh ftlesa e`rd lat; vkfnoklh dh ,d 'kVZ] ,d isUV] ,d lkQh j[kh gSA (2) ,d lhycan iksVyh ftlesa vkjksih ;ksxs'k ukFk ds diMs gSaA (3) ,d lhycan diMs iksVyh ftlesa ?kVuk ds le; igus ,d isUV vkSj 'kVZ vkjksih ;ksxs'k ukFk ds ftl ij [kwu ds /kCcs gSaA (4) ,d lhycan iRFkj djhc 3 fdyksxzke respectively marked as Exhibit C, H, I, J. That on 20.09.2017 (Ex.P/25) DNA reports sent in respect of 9 sealed packets were received by the RFSL. 5 packets, viz. (E, D, F, G & K) were received from constable Mahesh Singh and packets (C, H, I & J) were received from constable Deepak Chauhan. Packets E, D, F, G & K respectively contained Anal Swab (Deceased), Nails (Deceased), Pubic hair (Accused), Semen Slide (Accused), Blood-Sample (Accused). Serology report was received on 19.05.2017 Ex.P/26 to 9 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh Ex.P/29.
(5) 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 377, 302, 201(1), 363 IPC and Section 4 read with Section 3 of Protection of Children from Sexual Offences Act, 2012. The accused abjured his guilt. The matter was committed for trial. Prosecution examined 28 witnesses and exhibited 36 documents to bring home the charge.
Whereas, the accused person while confronting the prosecution witnesses exhibited 9 documents.
(6) The Trial Court vide impugned judgment found the accused guilty of the charges levelled and imposed the death penalty. And has submitted the matter to the High Court under Section 366 Cr.P.C. for confirmation of death sentence. Even the accused person has also preferred an appeal under Section 374 Cr.P.C.
(7) Before entering into rival contentions, submissions which border around the provision contained under Section 273 Cr.P.C. are taken up first.
(8) Section 273 Cr.P.C. envisages that 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 10 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh 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 corss-examination of the accused.
Explanation.- In this section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.
(9) It is urged on behalf of the accused/appellant that de hors the mandatory stipulations contained in Section 273 Cr.P.C. the Trial Court on various occasions recorded prosecution evidence in absence of accused. As a result whereof, since the valuable right of the accused of having prosecution witnesses examined in his presence has been infringed, the entire proceedings got vitiated, and for that the judgment based on such proceedings is a nullity in the eyes of law, which deserves to be set aside, with the matter be relegated to the Trial Court for fresh trial. Reliance is placed on the decision of a Division Bench of this Court in "State of Madhya Pradesh Vs. Budhram s/o Kunkuram Satnami [1996 Cri.L.J 46]". The appellant also relies on the recent decision in "Atma Ram & Ors. Vs. 11 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh State of Rajasthan [2019 Cr.L.R. (SC) 633]". In Budhram (supra), the Division Bench relied on earlier decision in Daryav Singh Vs. State of M.P.: Cr.A.345/88 decided on 05.05.1988; wherein, taking note of the fact that on 12.12.1987 one prosecution witness was examined in absence of accused, the matter was remanded back to the Trial Court for redeciding the matter after recording the evidence of said witness in presence of the accused. In Budhram (supra), the Division Bench took note of the fact that when the trial commenced the accused was not defended by a lawyer. Opportunity was afforded to him to engage a lawyer as he had 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. 17) and Nandram (P.W. 18), Awadesh Kumar (P.W.19) and Investigating Officer C.P. Jhariya (P.W.20) were present. The learned counsel representing the accused informed the Court that he had no objection if the witnesses in attendance were examined and, accordingly, the learned Judge recorded the evidence of all these witnesses in absence of the accused.
Ultimately, the matter ended in conviction based mainly on the 12 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh testimony of P. W. 10 Kotwar Patel Das who testified to the extra-
judicial confession made by the accused to him. Being convinced that the provision of Section 273 Cr.P.C. was violated appellants' conviction and sentence of death was set aside and the case was remitted to the Trial Court for recording of evidence of (PW-14) to (PW-20) afresh in presence of the appellant, who be given full opportunity to cross-examine them.
(10) In Atma Ram (supra), in respect of the offences punishable under Sections 302, 307, 452, 447, 323, 147, 148 and 149 IPC, the Trial Court without ensuring the presence of the accused proceeded to examine PW/3, PW/4, PW/12, PW/13, PW/14, PW/15, PW/17, PW/18, PW/20 and PW/23, respectively on 13.02.2015, 13.08.2015, 03.09.2015, 09.10.2015, 05.11.2015, 08.03.2016, 12.05.2016, 20.06.2016, 14.02.2017, 22.11.2016 and 14.02.2017 and after recording conviction proceeded to impose the sentence of death penalty. The High Court of Rajasthan in reference under Section 366 Cr.P.C. taking note of the fact that despite objection of the defence counsel (raised at initial stage) the Trial Court proceeded to record the evidence of 12 witnesses. While posing the issue as to whether the entire trial should be declared vitiated or that the matter be remanded to the Trial Court for recording the statements of these witnesses afresh by exercising powers under Section 391 Cr.P.C. or that the 13 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh impugned judgment should be set aside and the de novo trial be directed by exercising power under Section 386(b) Cr.P.C., directed that to do complete justice to the accused as well as to the victims, directed:
"........It is hereby directed that Trial Court shall summon and record the statements of the witnesses PW-1 Chandu Ram, PW-2 Chandrakala, PW-3 Surendra Singh, PW-4 Dharam Pal, PW-12 Vikrant Sharma, PW-13 Prahlad, PW- 14 Ram Kumar, PW-15 Sushila, PW-17 Dr. Arun Tungariya, PW-18 Ram Pratap, PW-20 Sahab Singh and PW-23 Ramesh Kumar afresh after securing presence of the accused in the Court. Upon remand, the Trial Court shall conduct the proceedings on a day to day basis and shall, after recording the statements of the witnesses afresh in the above terms, re-examine the accused under Section 313 Cr.P.C.; provide them a justifiable/proper opportunity of leading defence and decide the case afresh and as per law within four months from the date of receipt of copy of this judgment."
(11) On its challenge before the Supreme Court, the order was upheld. Their Lordships were pleased to hold:
"18. Section 273 opens with the expression "Except as otherwise expressly 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 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 14 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh 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 appellant's 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. The submissions advanced by Shri Sanjay Hegde, learned Senior Advocate, relying upon paragraphs in Jayendra Vishnu Thakur Vs. State of Maharashtra and others, (2009) 7 SCC 104 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 recognized 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 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 15 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh 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 to submit that the prejudice in such cases would be inherent or per se. Paragraphs 57 and 58 of said decision were as under:-
"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, (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 will comes from a person who has denied justice that the person who has been denied justice is not prejudiced."
58. In A.R. Antulay vs. R.S. Nayak, (1988) 2 SCC 602, 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 Vs. State of Punjab, (2004) 12 SCC 673 and Rajasthan SRTC Vs. Zakir Hussain, (2005) 7 SCC 447."
20. The aforementioned observations in Jayendra Vishnu Thakur 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 TADA Act [Terrorists and Anti Disruptive Activities (Prevention) Act, 1987] in a Court in Pune. The trial in the Court in Pune 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 16 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh 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 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 [Paras 8 and 9 of Jayendra Vishnu Thakur Vs. State of Maharashtra (supra)]. 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 concerned witnesses. 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 said witnesses. Since these basic requirements would be scrupulously observed and complied with, there is no prejudice at all.
17 CRRFC.09/2019The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh
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 the Chapter XXVIII was more relevant in the present matter and the judgment of the High Court was supported more strongly by 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 18 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh
(b) may annul the conviction, and convict the accused of any offence of which the Court of Session might have convicted him, or order of a 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.
386. Powers of the Appellate Court. - After perusing such record and hearing the appellant or his Pleader, 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 19 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh 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 is in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under 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 20 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh subject to the provisions of Chapter XXIII, as if it were an inquiry."
22. According to Section 366 when a Court of Sessions 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 deals 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 him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial". The powers of 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 re-trial, 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 21 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh 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 Pandit Ukha Kolhe Vs. State of Maharashtra, as under:-
"15. 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 re-trial 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 Vs. The State, AIR (1951) Cal. 305. "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 rejected, or the Court had refused to hear certain witness who should have been heard. But retrial cannot be ordered on the ground that the prosecution did not produce the proper evidence and did not know how to prove their case."
24. The order passed by the High Court in the present 22 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh matter was not to enable the Prosecutor to rectify the defects or infirmities in the evidence or to enable him to lead evidence which he had not cared to lead on the earlier occasion. The evidence in the form of testimony of those twelve witnesses was led and those witnesses were cross- examined. There was no infirmity except the one that the evidence was not led in the presence of the appellants. The remedy proposed was only to rectify such infirmity, and not to enable the Prosecutor to rectify defects in the evidence.
25. We must also consider the matter from the stand point and perspective of the victims as suggested by the learned Amicus Curiae. Four persons of a family were done to death. It is certainly in the societal interest that the guilty must be punished and at the same time the procedural requirements which ensure fairness in trial must be adhered to. If there was an infraction, which otherwise does not vitiate the trial by itself, the attempt must be to remedy the situation to the extent possible, so that the interests of the accused as well as societal interest are adequately safeguarded. The very same witnesses were directed to be de novo examined which would ensure that the interest of the prosecution is sub-served and at the same time the accused will have every right and opportunity to watch the witnesses deposing against them, watch their demeanor and instruct their Counsel properly so that said witnesses can be effectively cross-examined. In the process, the interest of the accused would also stand protected. On the other hand, if we were to accept the submission that the proceedings stood vitiated and, therefore, the High Court was powerless to order de novo examination of the concerned witnesses, it would result in great miscarriage of justice. The persons who are accused of committing four murders would not effectively be tried. The evidence against them would not be read for a technical infraction resulting in great miscarriage. Viewed thus, the order and directions passed by the High Court completely ensure that a fair procedure is adopted and the depositions of the witnesses, after due distillation from their cross-examination can be read in evidence.
26. We, therefore, see no reason to interfere with the order passed and the directions issued by the High Court in the 23 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh present matter. We affirm the view taken by the High Court and dismiss these appeals. The restraint which we had placed on the Trial Court not to pronounce the judgment hereby stands vacated. The Trial Court is now free to take the matter to its logical conclusion. Let a copy of this Order be immediately transmitted to the concerned Trial Court."
(12) In the case at hand, it is borne out from the record that prosecution examined its witnesses on 08.11.2017 in absence of the accused/appellant when Dr. J.P. Sonkar (PW-6), Dr. Heeralal Manjhi (PW-7), Nathu Singh Rajawat (PW-8) and Preetam Prajapati (PW-9) were present. Dr. J.P. Sonkar (PW-6), Dr. Heeralal Manjhi (PW-7) were examined and cross-examined on 08.11.2017 while Nathu Singh Rajawat (PW-8) and Preetam Prajapati (PW-9) were examined before the Court on 08.11.2017. On 20.03.2018, prosecution examined its witness Vijay Saxena (PW-19) and was cross-examined also. On 06.04.2018, Rambabu Nagar (PW-20) was examined, cross-examined and re-examined in the absence of accused.
(13) In the light of the law laid down in the case of Atma Ram & Ors. (supra) wherein it has been held that Section 273 opens with the expression "Except as otherwise expressly provided..." and the only exception is that if accused remained absent for the circumstances mentioned in Sections 299 and 317 of Cr.P.c., no examination and cross-examination of the witnesses could have been undertaken.
Record reveals that on these three dates viz., 08.11.2017, 20.03.2018 24 CRRFC.09/2019 The State of Madhya Pradesh Vs. Yogeshnath @ Jogeshnath & Criminal Appeal No.6086/2019 Yogeshnath @ Jogeshnath Vs. The State of Madhya Pradesh and 06.04.2018, none of the circumstances as provided in Section 299 and/or 317 Cr.P.C. were available. Therefore, learned Trial Court erred in proceedings with these witnesses overlooking the mandatory provision contained in Section 273 Cr.P.C.
(14) For these reasons, matter is remanded to the Fifth Additional Sessions Judge & Special Judge [Protection of Children From Sexual Offences Act, 2012], Gwalior (M.P.) to cause examination, cross-
examination and re-examination of prosecution witnesses, namely, Dr. J.P. Sonkar (PW-6), Dr. Heeralal Manjhi (PW-7), Nathu Singh Rajawat (PW-8), Preetam Prajapati (PW-9), Vijay Saxena (PW-19) & Rambabu Nagar (PW-20) and then to record statement of accused under Section 313 Cr.P.C. Thereafter, the Trial Court shall pronounce the judgment.
(15) We hope and trust that the Trial Court shall complete the proceedings within a period of three months from the date of receipt of the judgment. Let a copy of judgment along with the record be transmitted forthwith to the Trial Court.
(16) The reference and appeal are disposed of finally in above terms.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pd
PAWAN
DHARKAR
2019.09.07
10:44:49
+05'30'