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Judgments of Supreme Court of India and High Courts

In Refrence vs Ravi @ Toli Malviya on 30 January, 2020

-( 1 )- CRRFC No. 13/2019
The State of MP vs. Ravi @ Toli Malviya

CRA No. 9132/2019
Ravi @ Toli Malviya vs. State of MP

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
CRIMINAL REFERENCE CASE NO. 13/2019
The State of Madhya Pradesh
Versus
Ravi @ Toli Malviya

——————————————————————————–
Shri Kuber Boddh, Deputy Advocate General for the State.
Shri Vijay Dutt Sharma, learned counsel for he respondent as
amicus curiae.
——————————————————————————–
CRIMINAL APPAL NO. 9132/2019
Ravi @ Toli Malviya
Versus
The State of Madhya Pradesh

——————————————————————————–
Shri Padam Singh, leaned counsel for the appellant.
Shri Kuber Boddh, Deputy Advocate General for the State.
——————————————————————————–
Whether approved for reporting : Yes/No
——————————————————————————–

JUDGMENT

(30.01.2020)

Per Rajeev Kumar Shrivastava,J.:

This judgment shall govern the disposal of Criminal
Reference Case No. 13/2019 as well as Criminal Appeal No.
9132/2019 as both arise out of judgment dated 26/30.9.2019
passed by Second Additional Sessions Judge Special Judge

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The State of MP vs. Ravi @ Toli Malviya

CRA No. 9132/2019
Ravi @ Toli Malviya vs. State of MP

(Protection of Children from Sexual Offences Act, 2012), Vidisha
(MP) in Special Sessions Trial No. 300002/2016.

2. As per Criminal Reference Case No. 13/2019, Second
Additional Sessions Judge Special Judge (Protection of
Children from Sexual Offences Act, 2012), Vidisha (MP) vide
judgment dated 26/30.9.2019 in Special Sessions Trial No.
300002/2016, having found the accused guilty under Sections 363,
366-A, 364, 376(2)(i), 376(2)(j), 376(2)(k), 302 and 201 IPC, has
inflicted penalty of death sentence and has submitted the matter
for confirmation.

3. Criminal Appeal No.9132/2019 has been filed by the
accused from jail against the aforesaid judgment, whereby he has
been convicted and sentenced as under :-
Sections Act Imprisonment Fine Imprisonment in
lieu of fine
363 IPC Seven years RI 1000/- one month
additional RI)
366-A IPC Ten years RI 2000/- two months
additional RI
364 IPC Ten years RI 2000/- two months
additional RI
376(2)(i) IPC Life Imprisonment 4000/- three months
additional RI
376(2)(j) IPC Life Imprisonment 4000/- three months
additional RI
376(2) IPC Life Imprisonment 4000/- three months

(k) additional RI
302 IPC Penalty of Death – –

Sentence
201 IPC Seven years RI 1000/- one month
additional RI
It was also directed in the judgment that all the punishments

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of imprisonment shall run concurrently.

4. The short facts of the case are that on 24.10.2015 in between
2 pm to 7 pm the accused had kidnapped 7 years old prosecutrix
from the temple situated outside platform No.6 from the custody
of her lawful guardians, thereafter accused committed rape with
the minor and killed her and knowingly disappeared the evidence
of offence committed by him. According to the prosecution, on
25.10.2015 informant Rajkumar (PW-1) and Gajendra Sahu (PW-

2) had seen deadbody in the well of Mallu Patel. They informed
the Police Station Civil Line, Vidisha. ASI S.N.S. Solanki (PW-

34) reached the spot and registered merg intimation (Ex.P/1). On
the basis of merg intimation, Police Station Civil Line, Vidisha
registered Merg Case No. 80/2015 (Ex.P/38). S.N.S. Solanki (PW-

34) prepared the spot map (Ex.P/5). Thereafter, body of the
deceased was taken out from the well and Safina Form (Ex.P/50)
was issued. Thereafter post-mortem of the deadbody was
conducted. The post-mortem report Ex.P/29 and Ex.P/51 reveals
as under :-

“A necked dead body female child lying in supine
position on pm table. Rigor mortis present over
lower limb. Mouth semi open, eye closed.
Conjunctival congestion present and swelling
present over face and eye. Cynosis present over
the lip and tip of nose. Tongue between the teeth
and impression of upper teeth on anterior aspect of
tongue and red colour secretion over both nostril
region. Ecchymosis present on vertebral aspect of
tongue and hypostasis present over the back. Both
wrists were open and mud present over the body,
more on right hand and peeling of skin over thigh
(inner and medial aspect of thigh) and following
injuries were present over the body :

(i) Contusion 4cm x 4cm over right

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frontal region over headm ecchymosis
present;

(ii) Contusion 4cm x 4cm over left just
above eyebrow;

(iii) Contused abbrasion 3cm x 2cm over
right side of neck below the angle of
mandible;

(iv) Multiple abbrasions present ove
anterior and superior aspect of wound
No.(iii), size varies 1cm x ¼ cm and .
5cm x 1/4cm.

(v) Multiple abbrasions (four) 1 and
1/4cm over right TM Joint (in front of
right ear) and .5cm x 1/4cm.

All injuries are anti-mortem in nature.”

As per opinion of the doctor, cause of the death was
cardiorespiratory arrest as a result of multiple causes like
smothering, injury over the private part, vulva and rupture of
vagina and uterus.

5. The investigating officer Sanjeev Kumar Chouksey (PW-31)
investigated the matter, recorded the statements of the witnesses.
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 363,
366-A, 376, 302, 201 of IPC and Section 4 read with Section 3 of
Protection of Children from Sexual Offences Act, 2012, and
Sections 376 (2)(i)(j)(k) and 364 of IPC and Section 5( ) read with
Section 6 of POCSO Act. The accused abjured his guilt. The
matter was committed for trial. Prosecution examined 35 witnesses
and exhibited 90 documents to bring home the charge. Whereas,
the accused person while confronting the prosecution witnesses
exhibited 5 documents.

6. The Trial Court vide impugned judgment found the accused

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guilty of the offences as aforesaid 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. The accused has also
preferred an appeal under Section 374 Cr.P.C.

7. This Court for proper assistance appointed Shri Vijay Dutt
Sharma, Advocate as amicus curiae.

8. Learned amicus curiae submitted that on 13.3.2019 and
12.4.2019 when the accused was not produced from jail,
remaining chief examination and cross-examination of PW-31
Sanjeev Kumar Chouksey was done in absence of the accused,
therefore, the trial is vitiated which is de hors the mandatory
provisions contained in Section 273 CrPC as the trial Court
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, and the matter be relegated to the
Trial Court for fresh trial. Reliance is placed on the decisions in
Atma Ram Others vs. State of Rajasthan [2019 CrLR (SC)
633] and State of Madhya Pradesh vs. Budhram s/o Kunkuram
Satnami [1996 CriLJ 46].

9. Per Contra, learned State counsel submitted that the trial
Court after appreciating and marshaling the evidence in proper
perspective has rightly inflicted the death penalty and the appeal
filed by the accused deserves to be dismissed.

10. Before entering into rival contentions, submissions which
border around the provision contained under Section 273 Cr.P.C.

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are taken up first. Section 273 Cr.P.C. runs as under:-

“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.”

11. Section 205 of CrPC provides that Magistrate may dispense
with personal attendance of accused, which runs as under:-

“205. Magistrate may dispense with personal
attendance of accused.– (1) Whenever a
Magistrate issues a summons, he may, if he sees
reason so to do, dispense with the personal
attendance of the accused and permit him to
appear by his pleader.

(2) But the Magistrate inquiring into or trying
the case may, in his discretion, at any stage of
the proceedings, direct the personal attendance
of the accused, and, if necessary, enforce such
attendance in the manner hereinbefore
provided.”

12. However, in the present case the trial relates to sessions
trial, hence the provision of Section 205 CrPC will not be
attracted.

13. Section 317 of CrPC relevant in the case in hand reads as

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under:-

“317. Provision for inquiries and trial being
held in the absence of accused in certain
cases.– (1) At any stage of an inquiry or trial
under this Code, if the Judge or Magistrate is
satisfied, for reasons to be recorded, that the
personal attendance of the accused before the
Court is not necessary in the interests of justice,
or that the accused persistently disturbs the
proceedings in Court, the Judge or Magistrate
may, if the accused is represented by a pleader
dispense with his attendance and proceed with
such inquiry or trial in his absence, and may, at
any subsequent stage of the proceedings, direct
the personal attendance of such accused.
(2) If the accused in any such case is not
represented by a pleader, or if the Judge or
Magistrate considers his personal attendance
necessary, he may, if he thinks fit and for
reasons to be recorded by him, either adjourn
such inquiry or trial, or order that the case of
such accused be taken up or tried separately.”

14. If we analyze the provisions of Section 317 CrPC, then it is
apparent that at any stage of an inquiry or trial, under this Code, if
the Judge or Magistrate is satisfied, for reasons to be recorded,
that the personal attendance of the accused before the Court is not
necessary in the interests of justice, the Judge or Magistrate may, if
the accused is represented by a pleader, dispense with his
attendance and proceed with such inquiry or trial in his absence,
and may, at any subsequent stage of the proceedings, direct the
personal attendance of such accused. Meaning thereby, this section
provides special provision for recording of evidence in absence of
accused if the accused is represented by his pleaded, but the
condition precedent is, the reason for doing so should be recorded
by the Judge.

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15. 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 the aforesaid judgment, 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 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

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the appellant, who be given full opportunity to cross-examine
them.

16. 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 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

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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.”

17. 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 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

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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”,

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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 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

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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 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

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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.

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

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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

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(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

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(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 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.

-( 18 )- CRRFC No. 13/2019
The State of MP vs. Ravi @ Toli Malviya

CRA No. 9132/2019
Ravi @ Toli Malviya vs. State of MP

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 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

-( 19 )- CRRFC No. 13/2019
The State of MP vs. Ravi @ Toli Malviya

CRA No. 9132/2019
Ravi @ Toli Malviya vs. State of MP

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 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

-( 20 )- CRRFC No. 13/2019
The State of MP vs. Ravi @ Toli Malviya

CRA No. 9132/2019
Ravi @ Toli Malviya vs. State of MP

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

-( 21 )- CRRFC No. 13/2019
The State of MP vs. Ravi @ Toli Malviya

CRA No. 9132/2019
Ravi @ Toli Malviya vs. State of MP

evidence and did not know how to prove their
case.”

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.

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

-( 22 )- CRRFC No. 13/2019
The State of MP vs. Ravi @ Toli Malviya

CRA No. 9132/2019
Ravi @ Toli Malviya vs. State of MP

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.”

18. In the case at hand, it is borne out from the record that
prosecution examined its witness Sanjeev Kumar Chouksey (PW-

31) on 13.3.2019 and 12.4.2019 in absence of the accused and on
these dates no specific reasoned order had been passed by the Trial
Court under which the evidence of aforesaid witness could have
been recorded. Apart from this, the pleader of the accused had not
given any version or statement that he was authorised by the
accused to cross-examine the said witness in absence of the
accused.

19. 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

-( 23 )- CRRFC No. 13/2019
The State of MP vs. Ravi @ Toli Malviya

CRA No. 9132/2019
Ravi @ Toli Malviya vs. State of MP

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. Therefore, learned Trial Court erred in
proceedings with the witness Sanjeev Kumar Chouksey (PW-31)
overlooking the mandatory provision contained in Section 273
Cr.P.C.

20. For these reasons, matter is remanded to the Second
Additional Sessions Judge Special Judge (Protection of
Children from Sexual Offences Act, 2012), Vidisha (MP) to cause
examination, cross-examination and re-examination of prosecution
witness, namely, Sanjeev Kumar Chouksey (PW-31) in presence of
the accused and his pleader and then to record statement of
accused under Section 313 Cr.P.C. and after completion of trial,
the Trial Court shall pronounce the judgment afresh.

21. We hope and trust that the Trial Court shall complete the
proceedings within a period of thirty days from the date of receipt
of the judgment. Let a copy of judgment along with the record be
transmitted forthwith to the Trial Court.

22. We record our gratitude for Shri V.D.Sharma for his able
assistance as amicus curiae in this Court.

23. The reference and appeal are disposed of finally in above
terms.

(Sheel Nagu) (Rajeev Kumar Shrivastava)
(yog) Judge Judge

YOGESH VERMA
2020.01.31
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07’00’

12:13:34 +05’30’

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