Remanded

Vinod Dewasi v. State of Rajasthan

Rajasthan HC3 Nov 2022CRLAS/1267/2022

Case brief

AI extract

What is this about?

A POCSO conviction was challenged because prosecution witnesses were examined without the custodial accused being present. The Court set aside the conviction and sentence only against the appellant and remanded for fresh examination of the affected witnesses in his presence, directing completion within six months without expressing any opinion on merits.

What did the court decide?

Conviction and sentence set aside only qua the appellant; remand for fresh examination of affected witnesses in his presence and disposal within six months.

Vinod Dewasi Vs State of Rajasthan — Child Sexual Offences (POCSO) | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Criminal Appeal No. 1267/2022

¶3

Vinod Dewasi S/o Bhika Ram, Aged About 21 Years, R/o Village Sobdawas (Sodawas), Police Station Shivpura, District Pali (Rajasthan). Temporarily residing at Chamunda Nagar, Punayata Road Pali, District Pali. (At present lodged at Central Jail, Jodhpur).

¶4

----Appellant

¶5

Versus

¶6

State of Rajasthan, Through PP

¶7

Ratna Ram S/o Rana Ji Dewasi, Resident of Village Punayata, Tehsil & District Pali.

¶8

For Appellant	----Respondents : Mr. Moti Singh Rajpurohit
For Respondents	: Mr. S.S. Rajpurohit,P.P.

¶9

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

¶10

Judgment

¶11

Reserved on 21/10/2022 Pronounced on 03/11/2022

¶12

This Criminal Appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:

¶13

“ It is, therefore, humbly prayed that this Criminal Appeal may kindly be allowed, and the impugned judgment as well as conviction and sentence dated 16.05.2022, passed by the learned Special Judge POCSO Cases, No. 3, Pali in Sessions Case (CIS) No. 75/2020 State of Rajasthan vs. Vinod Dewasi & ORS may kindly be quashed and set aside and the Appellant may kindly be acquitted for the charge of u/s 363, 366, 342 IPC and 3/4 (2) POCSO Act.

¶14

Any other relief which would be deemed just and proper by this Hon’ble Court in the circumstances of the case may also passed in favor of appellant.”

¶15

(2 of 17)

¶16

[CRLA1267/2022]

¶17

Brief facts of the case as placed before this Court by learned counsel for the appellant are that complainant-Ratna Ram lodged a report on 12.06.2020 alleging therein that his minor daughter was kidnapped on 11.06.2020 by the present accused-appellant & an other unidentified person, while she had gone to relieve herself, in the morning, at about 6:00 a.m. Thereafter, she was taken to ‘Ramdev Colony (Pali)’, where she was subjected to forcible sexual intercourse by the accused. Upon the said report, an FIR bearing No.102/2020 was registered at Police Station, Sadar, District Pali for the offences under Sections 363, 366-A, 368, 376 IPC and Section 3/4 of POCSO Act, 2012, whereupon, the learned Court below framed charges against the present accused-appellant for the offences under Sections 363, 366, 342, 368, 376(3) IPC and Section 3/4 (2) of POCSO Act, 2012.

¶18

2.1 Such criminal proceedings finally culminated into the impugned judgment of conviction and order of sentence against the present accused-appellant under the aforementioned provisions of law. For the offence under Section 363 IPC, the accused-appellant was sentenced to undergo five years S.I. and a fine of Rs.1,000/-, in default of payment of which, he was ordered to undergo further six months S.I.; for the offence under Section 366 IPC, the accused-appellant was sentenced to undergo five years S.I. and a fine of Rs.1,000/-, in default of payment of which, he was ordered to undergo further six months S.I.; for the offence under Section 342 IPC, the accused-appellant was sentenced to undergo six months S.I. and a fine of Rs.1,000/-, in default of payment of which, he was ordered to undergo further 15 days S.I.

¶19

(3 of 17)

¶20

[CRLA1267/2022]

¶21

and; For the offence under Section 3/4(2) of POCSO Act, the

¶22

accused-appellant was sentenced to undergo twenty years R.I. and a fine of Rs.1,00,000/-, in default of payment of which, he was ordered to undergo further one year’s R.I.

¶23

Learned counsel for the accused-appellant, without arguing the case on merits, submitted that the impugned judgment of conviction against the accused-appellant herein is unsustainable in the eye of law, owing to the fact that the learned Trial Court below has committed a grave error in law, as there is a non-compliance of the provision of law contained in Section 273 of Cr.P.C., mandating that all evidence must be recorded in the presence of the concerned accused, the only exception being, if the trial court has dispensed with the attendance of the accused, in accordance with the said provision of law.

¶24

For the sake of brevity the said Section 273 Cr.P.C. is quoted as hereinbelow:

¶25

“273. Evidence to be taken in presence of accused.—

¶26

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 :

¶27

[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.]

¶28

Explanation.—In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.”

¶29

(4 of 17) [CRLA1267/2022]

¶30

3.1 Learned counsel for the accused-appellant also submitted that the accused-appellant was not present in the concerned Court, while evidence was being adduced against him, namely, the testimony of witnesses; P.W.1-prosecutrix, P.W.2-father of the prosecutrix and P.W.3-mother of prosecutrix, PW-8 Dr. Prabha, PW-9 Soma Ram, PW-10 Priya Shastri, PW-11 Dimple Kanwar and PW-12 Swaroop Ram, PW-12 Virendra Singh (re-marked as PW-12 due to bona fide error), and that, a perusal of the respective order-sheets would reveal that the accused-appellant was in judicial custody and was still not made to be present before the concerned court.

¶31

Learned counsel for the accused-appellant, in support of such submission, placed reliance on the following judgments:-

¶32

4.1 State v. Aatma Ram and Ors. (D.B. Crl Death Reference No. 2/2017) decided by a Division Bench of this Hon’ble Court on 13.12.2018 , relevant portion of which reads as under:

¶33

“Shri Kumbhat and learned Public Prosecutor were not in a position to dispute the fact that the accused were in judicial custody and that the prison authorities failed to produce them in the court when statements of the material prosecution witnesses (referred to supra) were recorded despite pertinent direction of the court on numerous dates of hearing. Section 273 Cr.P.C. which is mandatory in nature, enjoins that prosecution evidence shall be recorded in presence of the accused. Exception to this proposition is provided in Section 317 Cr.P.C. which stipulates that reference and trials can be held in absence of the accused in particular situations enumerated therein. Viewed in light of the above legal position, we are of the firm and considered opinion that summoning the accused from prison so as to ensure their participation and providing them an opportunity to witness the trial

¶34

(5 of 17)

¶35

[CRLA1267/2022]

¶36

court’s proceedings is the statutory obligation of the trial court and it is immaterial whether the defence raises an objection in this regard or not. Exemption from appearance of the accused,if any has to be expressly granted by the trial court after assigning reasons in accordance with Section 317 Cr.P.C. that the attendance of the accused is not necessary in the interest of justice or that the accused persistently disturbs the proceedings in the court. In the case at hand, neither of these circumstances existed. The accused were in judicial custody. No satisfaction was recorded by the court in any of the proceedings that presence of the accused was not necessary in the court. Rather, the trial court, time and again intimated the jail authorities that the accused should be brought to the court but then failed to ensure that the direction is complied. Needless to say that the right of the accused to see the evidence being taken in their presence is recognized as an absolute right by Section 273 Cr.P.C. and the same emanates from the principles of natural justice and fair trial. Thus, without any doubt, statements of the witnesses recorded by the trial court in absence of the accused more particularly when they were in judicial custody cannot be treated as having been recorded strictly in accordance with law.

¶37

Hon'ble Supreme Court in the case of Jayendra Vishnu Thakur referred to supra, held that the right of an accused to watch the prosecution witness deposing before a court of law is a valuable statutory right. Manifestly, the accused were in judicial custody in the present case. On a perusal of the ordersheets of the trial court, it is apparent that the Presiding Officer directed on numerous dates of hearing that the accused be produced in the court during the deposition of the prosecution witnesses but the jail authorities failed to produce the accused in the court on more than one occasions and despite the pertinent objection of the defence counsel (albeit raised at the initial stages), the trial court proceeded to record the statements of the prosecution witnesses without ensuring presence of the accused in the court. No satisfaction to exempt the presence of the accused in the court was recorded in any ordersheet of the court nor could such exemption be granted as the accused were in judicial custody in absence of an allegation that they could disturb the court proceedings. In this background, the proceedings undertaken by the trial court to the

¶38

(6 of 17)

¶39

[CRLA1267/2022]

¶40

extent of recording of the statements of witnesses in absentia of the accused cannot be considered to be lawful as they were held contrary to the mandate of Section 273 Cr.P.C.

¶41

Having held so, the significant question which arises for the Court’s consideration is as to whether, the entire trial should be declared vitiated; or that the matter should 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 impugned judgment should be set aside and the de-novo trial directed by exercising powers under Section 386(b) Cr.P.C.

¶42

Shri Moti Singh learned counsel representing the accused vehemently opposed the third option by placing reliance on the Supreme Court Judgments in the cases of Bhooraji,

¶43

Mohd.Hussain @ Julfikar Ali and Ajay Kumar Ghoshal.

¶44

We may note here that the case involves quadruple murders. The parties were enmical to each other. The accused acted out of vengeance and killed four innocent persons in a brutal fashion. Corrosive substance was poured in the eyes of the deceased. Even though an interval of more than five years gone-by since the case was registered, two of the accused persons namely Pawan Kumar and Rakesh Kumar (Juvenile) are still absconding. In this background, we are least convinced by the contention of learned defence counsel Shri Moti Singh that the entire trial should be declared to be vitiated and the accused should be allowed to go scot-free for the fault of the court and the jail authority.

¶45

In the judgment of State of M.P. Vs. Bhooraji , Hon'ble Supreme Court set aside the order passed by the High Court directing de-novo trial considering the peculiar fact that the High court erred in directing retrial on the ground of jurisdiction. The Supreme Court considered the controversy and held that the court which conducted the trial was of competent jurisdiction. In this background, the matter was remanded to the High Court for fresh disposal of appeal on merits. Thus, the said judgment is of no help to the accused as being distinguishable on facts.

¶46

In the case of Mohd.Hussain @ Julfikar Ali , the accused was an illiterate foreign national. The case was instituted in the year 1997 and was decided in the year 2004 without ever appointing a defence counsel on behalf of the accused. The Supreme Court held

¶47

(7 of 17)

¶48

[CRLA1267/2022]

¶49

that the trial was conducted in a very casual manner and the mandatory provisions of Section 304 I.P.C. were not complied with. We are of the firm opinion that the argument of Shri Moti Singh based on the said Supreme Court judgment is fallacious because, the Bench headed by two Hon’ble Judges of the Supreme Court took divergent views on the aspect of retrialand the matter is still to be decided finally. Thus, the said judgment does not lay down any ratio whatsoever.

¶50

In the case of Ajay Kumar Ghoshal , the High Court, noticing certain lapses in the procedure of trial, remitted the matter back back to the trial court for deciding the same afresh. In appeal, the Hon'ble Supreme Court held that there was no miscarriage of justice in the proceedings before the trial court necessitating retrial and in this background, the High Court Judgment was set aside and the matter was remitted to the Highcourt by deciding the appeal afresh. Therefore, once again, the said judgment has no application to the facts of the present case.

¶51

In the case of Pandit Ukha Kohle , the Hon'ble Supreme Court by majority view held that the prosecution should be given opportunity to lead evidence on the matters indicated in the course of the judgment; the accused be examined afresh under Section 342 Cr.P.C. and the appeal be decided afresh. Thus, in this case as well, the Supreme Court directed that fresh evidence should be taken on matters of significance even at the appellate stage.

¶52

Thus, none of the precedents cited by the defence counsel lays down a straightjacket formula that a de-novo trial cannot be directed in any condition. As a matter of fact, if any such view is taken, then the scope and operation of Section 386(b) Cr.P.C. would be rendered redundant.

¶53

In view of the discussion made hereinabove and looking to the glaring facts of the case at hand, we feel that in order to do complete justice to the accused as well as to the victims, the entire case cannot be thrown out by holding the proceedings to be vitiated on account of the mistakes committed by the trial Judge or the prison authorities concerned. A fresh trial/de-novo has to be ordered by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in

¶54

(8 of 17)

¶55

[CRLA1267/2022]

¶56

the first round without ensuring presence of the accused in the court.

¶57

During the course of arguments, Shri Moti Singh Advocate representing the appellants agreed that in case, the matter is remanded for fresh trial, no direction is required to be given to record the statements of the remaining witnesses afresh because when their testimony was recorded, the accused were kept present in the court proceedings.

¶58

In wake of the discussion made above, the impugned judgment dated 3.11.2017 passed by learned Additional Sessions Judge, Bhadra, District Hanumangarh in Sessions Case No.14/2014 is hereby quashed and set aside. In exercise of the powers conferred upon this Court by Section 386(b) Cr.P.C., the case is remanded to the trial court for holding de-novo trial. It is hereby directed that trial court shall summon and record the statements of the witnesses P.W.1 Chandu Ram, P.W.2 Chandrakala, P.W.3 Surendra Singh, P.W.4 Dharam Pal, P.W.12 Vikrant Sharma, P.W.13 Prahlad, P.W.14 Ram Kumar, P.W.15 Sushila, P.W.17 Dr.Arun Tungariya, P.W.18 Ram Pratap, P.W.20 Sahab Singh and P.W.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.

¶59

The I.G. (Prisons), Govt. of Rajasthan, Jaipur is directed to personally supervise and ensure that the accused are produced in the court on each and every date of hearing.

¶60

The I.G.P. Range Bikaner and the S.P. Hanumangarh are directed to ensure that all the witnesses are provided appropriate protection from henceforth till the trial is concluded afresh. They shall also step up the efforts for arrest of the absconding accused namely Pawan Kumar and Rakesh Kumar (Juvenile). In case, the absconding accused Pawan Kumar is arrested during pendency of the trial, his case shall be tried separately.

¶61

(9 of 17)

¶62

[CRLA1267/2022]

¶63

In wake of the discussion made above, while setting aside the impugned judgment dated 3.11.2017, the Cr.Appeal No.33/2018 filed by the accused against their conviction is allowed and the Death Reference No.2/2017 is turned down.

¶64

A copy of this judgment be placed in both the files.

¶65

Record be returned to the trial court alongwith a copy of this Judgment forthwith”

¶66

On the other hand, learned Public Prosecutor vehemently opposed the submissions made on behalf of the appellant, and submitted that an appellate Court ought to exercise its power of remand, ordering a de novo criminal trial only in the rarest of rare cases.

¶67

In support of such submission, learned Public Prosecutor placed reliance on the judgment of the Atma Ram & Ors. Vs. State of Rajasthan (Criminal Appeal No.656-657 of 2019 , decided by the Hon’ble Apex Court on 11.04.2019) , while adjudicating upon State Vs. Aatma Ram (supra), quoted in para 4.1 of this judgment; relevant portion of the judgment rendered by Hon’ble Apex Court reads as under:

¶68

“8. The High Court observed that despite “pertinent objection of the defence counsel (albeit raised at the initial stages)”, the Trial Court had proceeded to record the statements of twelve witnesses in the absence of the appellants. In the light of the facts on record, the question which arose for consideration was then framed by the High Court as under:

¶69

“… …the significant question which arises for the Court’s consideration is as to whether, the entire trial should be declared vitiated; or that the matter should 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 impugned judgment should be set aside and the denovo trial directed by exercising powers under Section 386(b) Cr.P.C.”

¶70

(10 of 17)

¶71

[CRLA1267/2022]

¶72

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 each 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.

¶73

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 Pandit Ukha Kolhe vs State of Maharashtra (1964) 1 SCR 926 , as under: -

¶74

(11 of 17)

¶75

[CRLA1267/2022]

¶76

“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 v. The State AIR (1951) Cal.305

¶77

"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 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."

¶78

24. The order passed by the High Court in the present 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.

¶79

25. We must also consider the matter from the stand point and perspective of the victims as suggested by the learned Amicus

¶80

(12 of 17)

¶81

[CRLA1267/2022]

¶82

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 subserved 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 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.

¶83

27. We must say that we have not, and shall not be taken to have expressed any opinion on the merits or demerits of the case of the prosecution, and the matter shall be gone into on its own merits at every stage of the proceedings.”

¶84

(13 of 17)

¶85

[CRLA1267/2022]

¶86

6.1 Learned Public Prosecutor also relied upon the judgment rendered in the case of State of Maharashtra V. Dr. Praful B. Desai, (2003) 4 SCC 601 .

¶87

6.2 Learned Public Prosecutor also submitted that no objection whatsoever at any stage, with regard to the presence of the accused was taken before the learned Court below.

¶88

In rejoinder arguments, learned counsel for the accusedappellant submitted that the case of State of Maharashtra V. Dr. Praful B. Desai (supra) , has been categorically dealt with in the case of Atma Ram (supra) , rendered by the Hon’ble Apex Court, wherein the Hon’ble Apex Court permitted a witness to make his deposition through Video Conferencing. And that the same would not apply to the factual matrix of the present case.

¶89

Heard learned counsel for the parties as well as perused the record of the case, alongwith the judgments cited at the Bar.

¶90

The controversy in the present case arises on count of non compliance of the provision of law contained in the Section 273 Cr.P.C.; being that of the two accused in the present case, the appellant, was not produced before the learned Trial Court during the examination of witnesses, despite being in judicial custody at the time, and was convicted as a result thereof.

¶91

This Court, on a perusal of the record, finds that the ordersheets dated 02.02.2021, 04.02.2021, 28.07.2021, 29.07.2021, 11.08.2021, 26.08.2021 and 09.09.2021 of the learned court below would reveal that the witnesses, namely, P.W.1-prosecutrix, P.W.2-father of the prosecutrix, P.W.3-mother of prosecutrix, PW-8

¶92

(14 of 17)

¶93

[CRLA1267/2022]

¶94

Dr. Prabha, PW-9 Soma Ram, PW-10 Priya Shastri, PW-11 Dimple Kanwar, PW-12 Swaroop and PW-12 Virendra Singh (re-marked as PW-12 due to bona fide error), respectively, were examined in the absence of the present accused-appellant, while he was in judicial custody. And that subsequently, he was convicted by the learned Court below vide the impugned judgment.

¶95

This Court observes that as rightly pointed out by the learned counsel for the accused-appellant, the judgment of State of Maharashtra V. Dr. Praful B. Desai (supra) , would not apply to the factual matrix of the present case, as it is not a case where the accused was present over video-conferencing or any other technological medium by which it could be said that he was present in the Court at the time of examination of the witnesses.

¶96

12 . This Court further observes that the compliance of Section 273 Cr.P.C. is mandatory and the only exception is when the personal attendance of the accused has been dispensed with by the concerned Court, in the presence of his pleader in an express order. However, in the present case, there is nothing on record to suggest that the attendance of the accused was dispensed with by the learned Court below. In fact, a perusal of the judgment impugned would reveal, the learned Court below has on multiple occasions, merely recorded that the accused- appellant was not present in the Court, yet continued with the evidentiary proceedings, in his absence, causing demolition of the trial.

¶97

Furthermore, in the opinion of this Court, the present case falls under the category of rarest of rare cases, looking into the fact that the prosecutrix was aged 14 years at the time of the

¶98

(15 of 17)

¶99

[CRLA1267/2022]

¶100

incident in question, making it a crime of extremely heinous nature, as also the fact that the accused-appellant was unable to refute the presumption under Sections 29 and 30 of the P.O.C.S.O. Act, 2012 with respect to the medical evidence namely, the D.N.A. report and the F.S.L. report, at Exp. 19 and Exp. 20 respectively, which was kept into consideration along with the testimony of witnesses, P.W. 7 Dr. K.L. Mandora, since the P.O.C.S.O. law has to be strictly operated as we move further down the ladder of age. Unless the special protection is granted to child victim(s), the very purpose of P.O.C.S.O. law would be defeated.

¶101

In view of what has been observed hereinabove and in light of the judgment rendered by the Division Bench of this Hon’ble Court in the case of State v. Aatma Ram and Ors. (supra) , which was subsequently upheld by the Hon’ble Apex Court, it is a fit case to be remanded back to the learned court below, only qua the present accused-appellant Vinod Dewasi for de novo trial with respect to the evidentiary proceedings concerning witnesses, namely, P.W.1-prosecutrix, P.W.2-father of the prosecutrix and P.W.3-mother of prosecutrix, PW-8 Dr. Prabha, PW-9 Soma Ram, PW-10 Priya Shastri, PW-11 Dimple Kanwar and PW-12 Swaroop Ram, PW-12 Virendra Singh (re-marked as PW-12 due to bona fide error).

¶102

Thus, the present appeal is disposed of , with the following directions:

¶103

(i) The impugned judgment of conviction and order of sentence dated 16.05.2022 passed by Special Judge No.3 (POCSO Act Cases), Pali in Sessions Case (CIS) No.75/2020 is quashed and set

¶104

(16 of 17)

¶105

[CRLA1267/2022]

¶106

aside, only qua the present accused-appellant Vinod

¶107

Dewasi . The matter is accordingly remanded back to the trial Court. It is hereby directed that the learned trial Court shall summon and record the statements of the witnesses, namely, P.W.1-prosecutrix, P.W.2-father of the prosecutrix and P.W.3mother of prosecutrix, PW-8 Dr. Prabha, PW-9 Soma Ram, PW-10 Priya Shastri, PW-11 Dimple Kanwar and PW-12 Swaroop Ram, PW-12 Virendra Singh (re-marked as PW-12 due to bona fide error), afresh, after securing presence of the accused-appellant in the court, and thereafter, dispose of the matter, strictly in accordance with law.

¶108

(ii) Looking into the peculiar factual matrix of the present case, the learned trial Court is directed to take up the matter on day-today basis without any unnecessary adjournments and dispose of the same, within a period of six months from the date of receipt of a copy of this judgment, strictly in accordance with law.

¶109

(iii) The I.G. (Prisons), Government of Rajasthan, Jaipur is directed to personally supervise and ensure that the accusedappellant is produced before the learned trial court on each and every date of hearing.

¶110

(iv) Needless to say that this Court has not expressed any opinion on the merits of the case. Hence, the trial Court shall dispose of the matter on merits without being influenced by any of the observations made hereinabove, while proceeding strictly in accordance with law.

¶111

(v) Since the main appeal itself is being disposed of, the application for suspension of sentence of the accused-appellant

¶112

(17 of 17) [CRLA1267/2022]

¶113

does not survive for consideration, and accordingly, the same is also disposed of. Other pending applications, if any, also stand disposed of.

¶114

(vi) Record of the learned court below be sent back forthwith, alongwith the copy of this judgment. A copy of this judgment be also sent to the I.G. (Prisons), Government of Rajasthan, Jaipur for making the necessary compliance.

¶115

(DR.PUSHPENDRA SINGH BHATI), J.

¶116

SKant/-

Vinod Dewasi v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Vinod Dewasi v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Madho Singh Vs State

Praveen Vs State of Rajasthan

Dilip Choudhary Vs State of Rajasthan

Suyash Raizada Vs State of Rajasthan

Jamnalal Vs State

Meera Vs State and Ors.