Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 45 (ORI)

Kunal Singh Bariha v. State of Orissa

2016-01-19

SATRUGHANA PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - This appeal is directed against a judgment of conviction and order of sentence passed against the appellant in C.T. Case No. 212/124 of 2012-14 on the file of the Additional Sessions Judge-cum-Presiding Officer, Special Court, Padampur. The learned Additional Sessions Judge-cum-Presiding Officer, Special Court, Padampur vide the impugned judgment and order held the appellant guilty of the charge under Sections 342/354/376(2)(g) of the Indian Penal Code (for short “I.P.C.”). and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 20,000/-, in default to undergo rigorous imprisonment for two years under Section 376(2)(g) of I.P.C., rigorous imprisonment for two years and to pay a fine of Rs. 5000/-, in default to undergo rigorous ;imprisonment for six months under Section 354 of I.P.C. and rigorous imprisonment for one year and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for three months under Section 342 of I.P.C. 2.The prosecution placed a case before the trial Court that on 10.05.2009 at about 4 p.m., when the victim, a lady belonging to scheduled caste community, had been to the Block Office at the instance of one Mahesh Kumar Agrawal, then working as Block Chairman at Paikmal to meet him there to get a job of Anganwadi worker, her modesty was outraged by him there and thereafter said Mahesh Kumar Agarwal called one Guna Nag and advised the victim to accompany him to an unknown place and said Guna Nag took the victim to an isolated place, i.e, Manbhang Dam side surrounded by jungle and there she was raped by the present appellant along with Mahesh Kumar Agrawal, Guna Nag and Kamalesh Sribastab and thereafter they left her in the godown of co-accused-Sajan Agrawal where she was also subjected to rape by Sajan Agrawal, Pintu Pradhan and Guna Nag. But, the victim was rescued from there by the police and she reported the matter to the police vide Ext. 13, pursuant to which, investigation was taken up by the local police which was subsequently transferred to the Crime Branch and charge-sheet was placed. 3.After submission of the charge-sheet, the case of the co-accused persons of the appellant was committed to the Court of Sessions and charge was framed against them. 13, pursuant to which, investigation was taken up by the local police which was subsequently transferred to the Crime Branch and charge-sheet was placed. 3.After submission of the charge-sheet, the case of the co-accused persons of the appellant was committed to the Court of Sessions and charge was framed against them. But the appellant having absconded, his case was committed later and he also faced his trial in the said case as he pleaded not guilty to the charge. During the trial, the evidence of twenty three witnesses including the victim (P.W.1) was independently recorded in this case. But, the evidence of the rest witnesses, such as , P.Ws. 24 to 37 who had been examined in the case of co-accused persons, i.e., C.T. Case No. 75/42 of 2010-2014 was adopted in the case of the appellant and ultimately, the arguments in both the cases were heard and a common judgment was delivered. In the common judgment, the appellant was convicted along with his co-accused persons in other case and sentenced, as stated earlier. 4. Learned counsel for the appellant has submitted that the judgment of conviction and order of sentence against the appellant are unsustainable in view of the fact that the trial against the appellant is vitiated as the evidence in other case which was recorded in the absence of the appellant, has been adopted in this case oblivious to the mandate of Section 273 of the Code of Criminal Procedure (for short “Cr. P.C.”), in recording the judgment of conviction and order of sentence against the appellant. Otherwise also, it has been submitted that the evidence of the victim being full of material contradictions and suffering from embellishment, so also no convincing evidence being there disclosing the involvement of the present appellant, the trial Court erred in convicting the appellant and , as such, the impugned judgment of conviction and order of sentence passed against the appellant are unsustainable. Hence, he has submitted, the impugned judgment of conviction and order of sentence are liable to be set-aside and the appellant is entitled to an order of acquittal. 5.In response, the learned counsel for the State has submitted that no doubt, the evidence of P.Ws. Hence, he has submitted, the impugned judgment of conviction and order of sentence are liable to be set-aside and the appellant is entitled to an order of acquittal. 5.In response, the learned counsel for the State has submitted that no doubt, the evidence of P.Ws. 24 to 37 in this case was not recorded in presence of the appellant, but the same was recorded in the other case wherein the co-accused persons of the appellant were facing their trial on similar charge arising out of the same incident and the appellant having no objection regarding adoptability of the said evidence in the trial Court the contention challenging the sustainability of the convection on the ground of non-compliance of Section 273 of Cr. P.C. in recording the evidence, as such, is devoid of merit. So far as the merit of the conviction is concerned, it has been submitted that since in this case, the version of the victim in substratum with regard to the fact that she was subjected to rape by some of the convicts and the appellant being present with them then and played a role in the commission of the crime the conviction of the appellant, as such, unquestionable on a charge of gang rape on the ground of some trivial discrepancies on her version. When the victim in no uncertain terms deposed that she was raped, in which more than one including the appellant were involved and she deposed the same to be without her consent, a presumption under law being there in favour of her evidence that the same was without her consent under Section 114-A of the Indian Evidence Act, the same was sufficient enough to come to a conclusion that she was gang raped and the appellant was guilty of the charges, inasmuch as the same has not been rebutted in any manner by the appellant or the appellant has not brought anything that he was not present there. Therefore, even if the evidence of the witnesses, i.e., P.Ws. 24 to 37 were effaced off the record of the case in which the appellant was facing trial as the same was not recorded in presence of the appellant, the conviction is not vitiated as the evidence of the remaining witnesses is sufficient enough to record a conviction against the appellant. 24 to 37 were effaced off the record of the case in which the appellant was facing trial as the same was not recorded in presence of the appellant, the conviction is not vitiated as the evidence of the remaining witnesses is sufficient enough to record a conviction against the appellant. Hence, it has been submitted by the learned A.G.A. that this criminal appeal is devoid of merit and liable to be dismissed. 6.It is not in dispute that in this case, the evidence of some of the material witnesses, i.e., P.Ws. 1 to 23 was recorded independently in respect of the present appellant and they were subjected to cross-examination at the instance of the appellant. But, so far as the evidence of other witnesses, i.e., P.Ws. 24 to 37 is concerned, it appears that the same was recorded in case of the co-accused persons and those witnesses were as such not subjected to cross-examine by the appellant in this case. However, the trial Court adopted such evidence, as no objection was raised by the present appellant, in the case of the appellant and concluded the trial. The trial Court in this regard, therefore, appears to this Court to have applied a procedure which is foreign to a criminal trial and not permissible under the Code of Criminal Procedure, 1973, which can be visualized from Section 273 of Cr. P.C. which reads as thus:- “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. Explanation- in this Section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code” 7.A bare perusal of the aforesaid would go to show that the aforesaid Section is mandatory and any omission of any evidence recorded in absence of the accused unless excepted by the express provision in the Cr.P.C., is an error, omission or irregularity which is not covered under Section 465 of Cr. P.C. and, as such, the said illegality vitiates the trial. 8. The Apex Court in the case of Ratilal Bhaanji Mithani vrs. State of Maharashtra and others, reported in AIR 1971 Supreme Court 1630, have held as follows:- “4. Xxxxxxxxxxxxxxx In every criminal trial the accused is entitled to have the witnesses examined in this presence hand if a departure is made and witnesses cannot be brought here for one reason or the other whether due to the action of the appellant or the inaction or want of diligence on the part of the prosecution, and they have to be examined on commission beyond the frontiers of this Country it is incumbent upon the prosecution and the Court in ensuring a fair and impartial trial to afford to the accused the same facilities for employment of a lawyer, the payment of his to and fro air fare to the place where the Commission will examine witnesses and his daily expenses while he is engaged in the work of the Commission. Xxxxx xxxxx xxxxx “ In the case of Sukan Raj vrs. The State of Rajasthan, reported in 1967 Cri. L.J. 1702, the Rajasthan High Court in paragraph-5 have held as follows: “5. Section 353 Cr. P.C. provides that “except as otherwise expressly provided , all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.” It is urged by learned Deputy government Advocate that the copies were made out in the presence of the accused but in my opinion mere physical presence of the accused is not necessary, he must be given all opportunities to defend himself by testing the veracity of the witness through the process of cross examination. There is nothing on the record to show that opportunity was afforded to the accused to cross-examine the witnesses when the copies of their statements were taken from one case to another. In my opinion the procedure adopted in taking on record the copies of the statements of the witnesses from one case to another and then to treat these copies as evidence is a serious departure from the usual and proper procedure prescribed by the Code of Criminal Procedure. Even if it is assumed for the sake of argument that the accused had given his consent to the adoption of such a novel procedure such a consent, in my opinion, cannot give any legal sanctity to this type of evidence which has been brought on record in clear violation of the mandatory provision of the law. It is a well established rule of law that neither the accused nor his counsel can validate by giving his consent anything which is not authorized by law. The procedure adopted by the trial Court to bring the evidence on record is clearly in derogation to the express provision of the law and therefore, it is difficult for me to accept the contention of learned Deputy Government Advocate that the defect is curable as no prejudice has been caused to the accused. In my opinion the provisions of Section 537 of that Code of Criminal Procedure cannot be attracted to cure a defect of procedure which infringes the mandatory requirement of the Code. This violation is clearly an illegality and not an irregularity. Such an illegality vitiates the trial and no amount of consent of the accused or his counsel can cure the illegality. “ 9.It appears that there is no departure to such mandate of the Old Criminal Procedure Code in the New Criminal Procedure Code except the specific circumstances provided in Sections 291, 292,293, 299 and 317 of the Cr.P.C. 10.In the case of Annamma Cherian vrs. The State of Kerala, reported in 1988 (3) Crimes 596, the Kerala High Court have also held that “where as new person is added as an accused, the evidence already recorded cannot be used against him because that was not recorded in his presence.” 11.I am persuaded with the views taken in the case of Sukan Raj (supra) and Annamma Cherian (supra) by the Rajasthan High Court and Kerala High Court respectively. 12.Therefore, in view of the aforesaid mandate of Section 273 of Cr.P.C. and the law laid down by the Apex Court in the case of Ratilal Bhanji Mithani (supra) and the Rajasthan High Court and Kerala High Court in the case of Sukan Raj (supra) and Annamma Cherian (supra), the trial Court erred in adopting the evidence of other case while rendering the judgment of conviction and order of sentence against the present appellant. Hence, the impugned judgment of conviction and order of sentence are unsustainable as the trial is vitiated for the aforesaid reasons. 13.Since the trial in the present case is vitiated for the aforesaid reasons, question of placing reliance on the remainder of the evidence to test the sustainability of the conviction does not arise. 14.In such premises, I set-aside the impugned judgment of conviction and order of sentence passed against the present appellant and remit back the matter to the trial Court to proceed against the appellant afresh from the stage of recording of the evidence of the last witness, i.e., P.W. 23 independently. Since I have already set-aside the impugned judgment of conviction and order of sentence and remitted back the matter for trial afresh from the aforesaid stage against the appellant and it being not in dispute that the appellant was on bail at the time of trial, he be also released on bail on such terms and conditions as the trial Court may deem just and proper in the facts and circumstances of the case. 15.L.C.R. received be sent back forthwith to the trial Court for proceedings in accordance with law. Appeal disposed of.