POCSO Conviction In Violation Of S.273 CrPC: MP High Court Remands Matter Back To Trial Court For Re-Examination Of Witnesses

From the record it appears that there was neither any willingness on the part of the appellant nor there was any order or direction by the trial Court that the evidence be recorded in the absence of the appellant. 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…Thus, in the light of the factual matrix of the case and above pronouncements we have no hesitation to hold that Section 273 Cr.P.C. stood violated in the present matter and that there was an infringement of the salutary principle under Section 273 of Cr.P.C.

Facts of the case were that the Appellant was convicted by the trial court under Sections 376(2)(i)(n), 506 IPC and under Sections 5, 6 of POCSO Act. Aggrieved, the Appellant preferred an appeal against his conviction.

The Appellant argued that the trial court had recorded some testimonies in his absence, thereby violating the mandatory provisions under Sections 273 CrPC. He submitted that since his valuable rights were infringed, the entire proceedings stood vitiated and the judgment based on such proceedings was a nullity in the eye of law.

It was also pointed out by the Appellant that the trial court did not carry out the indispensable exercise of determining the age of the Prosecutrix as per Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules. He argued that in order to exercise its jurisdiction to decide the matter, the lower court had to give a specific finding as regards to the victim being a "Child" under Section 2(d) of POCSO Act. He contended that there was nothing on record to demonstrate that the Prosecutrix was indeed a minor or that any averment was made to prove the same. Therefore, the decision of the trial court was liable to be set aside.

Per contra, the State argued that the medical records clearly showed that the Prosecutrix was subjected to rape. Furthermore, her testimony was in sync with the evidence stacked against the Appellant. Thus, it was asserted that appeal was sans merit and liable to be dismissed.

Examining the submissions of parties and documents on record, the Court observed that there has been a violation of the provisions under Section 273 CrPC. It was further noted that there was no reasoning given by the lower court in its order as to why the evidence was being recorded in the absence of the Appellant/Accused-

In the case at hand, from the record it is borne out from the record that prosecution examined its witnesses on 26/10/2016, 23/01/2017, 28/03/2017, 18/7/2017, 07/11/2017 and 05/10/2018, in the absence of the appellant, Saba Rehman (PW/1), Mamta Singh (PW/2), Dr. Asha Singh (PW/5), Vandana (PW/6), Narendra (PW/7), Dr. D.R. Sagar (PW/8), Lalji Tripathi (PW/10), R.P. Indoriya (PW/11) & Sanjay Singh (PW/12) and on these dates there is no order by the Trial Court substantiating with reasons as to why the statements of the witnesses were recorded in the absence of the accused? Apart from that the counsel appearing on behalf of the accused had also not stated that he was authorized by the appellant to cross-examine the said witnesses in the absence of the accused.

Further dealing with the argument regarding determination of Prosecutrix's age, the Court held that by not carrying out the mandatory exercise, the trial court had committed an irregularity. However, it could not vitiate the entire proceedings. The Court presumed that the lower court would've gotten swayed by the appearance of the Prosecutrix. But considering the testimonies of the witnesses in totality, the Court observed that her age could be said to be between 12-13 years at the time of the incident-

It appears that trial Court got influenced by the physical appearance of the victim and as she would had appeared to be a minor…Further, PW/5 Dr. Asha Singh, while proving Ex. P/4 i.e. MLC in para 3 of her court statement had deposed while examining the prosecutrix her pubic hair were not developed, not even one finger could be inserted in the vagina due to which it was difficult to take the swab sample, thus, it could at the most be said to an irregularity committed by the Trial Court and would not vitiate the entire proceedings…

With the aforesaid observations, the Court directed that the witnesses examined in the absence of the Appellant be reexamined in his presence. Further, the Court directed the trial court to conduct an enquiry to determine the age of the Prosecutrix as per the statutory provisions. Accordingly, the appeal was disposed of.