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Rajasthan High Court · body

2023 DIGILAW 623 (RAJ)

Dinesh Kumar v. State Of Rajasthan

2023-02-27

FARJAND ALI

body2023
ORDER : Farjand Ali, J. Lawyers are abstaining from appearing before the Court. 2. This court had passed the order dated 22.02.2023 wherein it was deemed fit to seek an explanation from the presiding officer who had passed the impugned judgment dated 12.07.2022 before placing the file before Hon'ble Chief Justice. 3. A meticulous perusal of the letter dated 27.02.2023, sent by the presiding officer who had passed the impugned judgment dated 12.07.2022, to Registrar (Judicial) gives no whiff of any plausible reason or cause for commission of such a blatant mistake rather from the very beginning to the end, it appears from the explanation put forward by the presiding officer that he has endeavoured to absolve himself of the mistake and oversight. 4. For the observations made by this Court regarding the in-existence of the cross-examination of PW-1 on the file, copying of other witness' cross-examination in place of the cross-examination of PW-1 without application of mind and passing of the judgment without paying attention to the aforesaid goof-up, it is stated by the learned judge that the examination-in-chief and the cross-examination of PW-1, who is the mother of the victim, were recorded on 01.02.2020 and thereafter, post alteration of charge, they were again recorded on 23.12.2020 and that he was not posted at the Special Court at that time. Another presiding officer, who was posted there at that point in time, i.e. on 23.12.2020, recorded the statement of PW-1. He has taken refuge of the provisions of Sections 276 and 278 of the Code of Criminal Procedure to state that he had no basis to consider that evidence of PW-1 as not correct and wrong. As per him, since Section 276 CrPC provides that the chief and cross examinations of a witness are to be taken in writing, as stated by the said witness, under the direction and superintendence of the presiding officer and that the presiding officer shall sign the statement so recorded in writing and the same shall form a part of the record, he could not doubt the correctness of the statement so recorded. Similarly, he has further stated that as Section 278 CrPC provides that after the evidence of a witness is complete, then the same shall be read over to the said witness in the presence of the accused or his pleader and if need arises, the same can be corrected but in this case no such objection was raised and therefore, there was no occasion to doubt the statement so recorded. It is further pointed out by him that the then presiding officer has remarked that the evidence was read over to the witness, the witness agreed to having heard and understood the statement and then, accepted it to be correct and appended her signature on the same. The signature of the presiding officer were also appended on the statement of this witness (PW-1). 5. The anxiousness of this court or the question that was put forth was not for the purpose of making correction in the statement already recorded rather it was the intention of this Court to unearth the reason for committing such a mistake where when apparently the cross-examination of PW-1 did not match and was not in tune with the examination-in-chief of PW-1, then before basing a conviction on such evidence, it was not considered necessary to ponder upon this aspect also while delivering the impugned judgment. Before reaching on a conclusion of guilt or any finding, the evidence brought on record is required to be meticulously examined and duly appreciated. In the firm opinion of this Court, it is expected from the learned judge to think over this concern, more particularly over the fact that the cross-examination of PW-1 is the same as that of PW-5 without change of any word, phrase, letter, punctuation, space or drift but the learned judge has adopted a casual and carefree approach while appreciating the evidence. It is expected from every judicial officer to pass an order/judgment after due appreciation of evidence brought on record and this Court is doubtful whether the same has been done in the present matter, yet since the appeal is pending, this Court refrains from making any finding or final observation. 6. It is expected from every judicial officer to pass an order/judgment after due appreciation of evidence brought on record and this Court is doubtful whether the same has been done in the present matter, yet since the appeal is pending, this Court refrains from making any finding or final observation. 6. The view of learned judge that he had no need to doubt the correctness of the statement of PW-1 in light of the provisions of Sections 276 and 278 of CrPC is wide of the mark as the question mark placed on his findings by this Court is not concerned with the statement being recorded in writing, being read over to the witness in the presence of the accused or his/her/their pleader, appending of signature by the presiding judge or making of any correction in the statement so recorded rather the concern of this Court was to seek an explanation from him to know as to why before passing the judgment of conviction, he has not taken into account the anomaly in the material available on record and considered the major discrepancy between the examination-in- chief and cross examination of PW-1 and if the same has been considered then why is it not reflecting from the judgment of conviction passed by him. There is no whisper regarding the same in the entire judgment of conviction and in the explanation furnished by him. 7. It seems that the learned judge is hell-bent on justifying his judgment and trying his level best to rationalise his ignorance. He has further stated that he passed the judgment mainly relying on the evidence of the victim and if his attention was drawn to the cross-examination of PW-1, he did not deliberate upon the same while passing the judgment as the same was unrelated to the examination-in-chief of PW-1. He has further explained that if he would have deliberated upon the same, it would have amounted to exercise of power of review since the evidence of PW-1 was recorded in the direction and superintendence of the previous presiding officer. There is no doubt that the previous presiding officer has committed a blatant error while recording the statement of PW-1 but to not consider the same or take any effort to rectify the same while passing the judgment of conviction also equals to negligence on part of the learned judge. 8. There is no doubt that the previous presiding officer has committed a blatant error while recording the statement of PW-1 but to not consider the same or take any effort to rectify the same while passing the judgment of conviction also equals to negligence on part of the learned judge. 8. On one hand, the learned judge is saying that his attention might have been drawn towards the error which reflects certain level of uncertainty in his mind as to whether he noticed the error or not and on the other hand, he is saying that calling for the recording of the statement of witness again by taking the aegis of Section 311 would have been beyond the scope of his jurisdiction. The use of the words ^^esjk /;ku x;k gksxk** reflects ambiguity and does not inspire confidence of this Court in the explanation furnished by the learned judge. 9. He has further defended that though a witness can be summoned again for recording of evidence under Section 311 CrPC but a reasoned order has to be passed for the same. According to him, if such an order under Section 311 CrPC was to be passed, then it would have required him to conclude therein that the evidence of PW-1 was not recorded under the direction and superintendence of the previous presiding officer and the same is beyond the ambit of his jurisdiction/authority. 10. It is evidently clear from the statutory stipulation of Section 311 CrPC that the presiding judge is under a statutory duty to summon/examine/re-examine or recall witnesses if their evidence appears to be essential to the just decision of the case and the powers under Section 311 CrPC can be exercised at any stage of the trial, before passing of the judgment, even after closing of evidence of both sides. Though this Court does not wish to go into details of the scope of Section 311 CrPC but it is well-established in criminal jurisprudence that for the purpose of exercising power under Section 311 CrPC, for just disposal of the case, the order summoning a witness for re-examination would not be considered to be an order passed in exercise of power of review. The learned judge may argue that he majorly relied on the testimony of the victim and thus, the testimony of PW-1 was not as such imperative for the just disposal of the case in his disposition. While this Court does not wish to remark on the nitty-gritty of the matter, however, in the humble opinion of this Court, absence of complete evidence of the testimony of PW-1 the complainant, who is the mother of the victim and the subsequent disregard of the same by the learned judge becomes a roadblock in effective administration of justice and the rights of the accused to get a fair trial. The courts cannot be blissfully ignorant to such mistakes as they have a duty to ensure that the right of an accused to have access to justice is not sidelined while considering the rights of the victim and the interest of the society. A common man's access to justice is imperative and the rights of the accused are to be considered in triangulation with the rights of the victim as well as interest of the society. 11. Lastly, the learned judge has stated that neither the public prosecutor nor the defense counsel drew the attention of the court towards this mistake and they did not express any objection over the same. This Court is of the view that ignorance or blatant error on the part of one of the stakeholders in the administration of justice cannot absolve the presiding officer of his duties. Being the presiding officer, he is supposed to adjudicate the issue and pass the judgment of conviction or acquittal and not the other stakeholders. Ignorance of the counsel for the parties cannot substitute as a reason for the presiding judge to commit dereliction of his duty. Moreover, the witness is a common person and cannot be expected to know the procedure of law or the details of how a trial is conducted and thus, it cannot be expected from the witness to detect or point out this mistake. Normally, the poor parties have no access to the file or certified copies of the statements recorded before the trial judge. 12. Normally, the poor parties have no access to the file or certified copies of the statements recorded before the trial judge. 12. It does not sit well with this Court that the learned judge has ruthlessly tried to explain that while passing the judgment of conviction, he may have gone through the examination-in-chief and cross examination of PW-1 but since her cross-examination was not 'relevant', therefore, he did not consider the same. Ast the cost of repetition, it is pointed out that the cross-examination of PW-1 did not exist on the file and thus, its importance could not have been adjudged. 13. section 28 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act') stipulates that a Court of Session is to be designated as a Special Court for each district to try the offences under the POCSO Act and a Court of Session is empowered by Section 28 of the Code of Criminal Procedure to pass any sentence authorised by law, provided that if sentence of death is passed, it shall be subject to confirmation by the High Court. This simply translates into the fact that the presiding officer has power to pass a sentence of life imprisonment, a sentence of life imprisonment for the remainder of the natural life of the convict and even a sentence of death. While presiding over a court which adjudges sensitive matters filed under the POCSO Act and is empowered by the statute to condemn the convict to death, inter alia other severe punishments; adoption or continuance of such impetuous and careless behaviour/outlook/approach is not only detrimental to the lives of the under-trials and the victims but also to the reputation of institution that is responsible for carrying out administration of justice. 14. This court is not hesitant to say that the learned judge has furnished the explanation with the same sloppy approach and callous attitude with which he had conducted the trial in this matter. 15. This court has not lost sight of the callous approach of the presiding officer who recorded the statement aforesaid. It has been reported that he has now been superannuated. 16. 15. This court has not lost sight of the callous approach of the presiding officer who recorded the statement aforesaid. It has been reported that he has now been superannuated. 16. The above observations have been made after going through the niceties of the matter, however, this Court refrains from passing final comment or remarking on the conduct of both the presiding officers as the same is thought to be done by the administrative authority of the High Court, therefore, it is deemed appropriate to direct the Registrar General of this Court to place the file before Hon'ble Chief Justice for further course of action.