Gujarat High Court
Arunaben @ Anitaben, W/O Rajesh ... vs State Of Gujarat on 3 September, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1818 of 2025
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2025
In R/CRIMINAL APPEAL NO. 1818 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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ARUNABEN @ ANITABEN, W/O RAJESH HARKISHAN DEVMURARI
Versus
STATE OF GUJARAT
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Appearance:
MR BB NAIK, SR. ADVOCATE WITH MR ADITYA R PARIKH(8769) for the
Appellant
MR LB DABHI APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 03/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the sole appellant/accused herein under Section 415 of the Bhartiya Nagrik Surakhsha Sanhita (374 of the Cr.P.C), is directed against the judgment of conviction and order of sentence dated 12.06.2025, passed by the learned Additional Sessions Judge, Dhoraji at Rajkot, in Sessions Page 1 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined Case No. 19 of 2012, by which, the Trial Court convicted the appellant accused for the offences punishable under Section 302 of the Indian Penal Code and sentenced her to life imprisonment and fine of Rs.5000/-, in default, further simple imprisonment of 3 months.
2. Facts and circumstances leading to file this conviction appeal are as follows:
2.1 The accused appellant was married to PW:9 Rajesh Devmurari.
The husband was serving as a Junior Clerk in the Irrigation Department, Dhoraji at Rajkot and allotted the Government Quarter known as Bhadar Colony. There was a dispute among the children of the colony. The appellant being a mother of the child was not happy with the conduct of child Jaldeep aged about 7 years, who happened to be a son of the complainant Girdharbhai Kothiya - PW:1, who was also member of the colony and residing adjacent to the quarter of the appellant. On 05.08.1996, due to early quarrel, the appellant had called the child Jaldeep to her house and killed him by heating the iron rod on his face and head and thereafter, threw his dead body in the backyard of the quarters. At the relevant time, no one present in the house and when PW:1 husband came from the market, he found foul smell. He asked the appellant wife about the cause of the smell. The accused appellant confessed her guilt inter alia stating that she has killed the child Jaldeep, causing head injuries by iron rod. The family of the child had made efforts to search Page 2 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined the child. PW:13 Kanjibhai being a member of the colony saw the accused throwing the dead body of the deceased in the backyard of the quarters. He told the said facts to PW:1 - father of the deceased. The father immediately filed a complaint before Dhoraji Police inter alia alleging that the appellant accused killed his child and the offence of murder being registered as I- C.R.No.183 of 1996 and accordingly, the appellant accused was arrested on 06.08.1996.
2.2 After due investigation, the chargesheet was filed against the appellant. The charge had been framed by the Additional Sessions Judge, Dhoraji at Rajkot against the accused. After framing of the charge, the appellant was granted bail by the High Court. Thereafter, she did not remain present before the Sessions Court. The police could not execute the non-bailable warrant. PW:9 being a husband, was unable to provide whereabouts of the appellant accused. The case was adjourned from time to time before absconding the appellant accused. In the year 2024, the proceedings under Sections 82 and 83 of the Cr.P.C. were being initiated against the accused. The accused was declared to be proclaimed offender. The Trial Court, in order to dispose of the old sessions case, by invoking Section 299 of the Cr.P.C., recorded the evidence of witnesses in absence of the accused. The examination in chief of 17 witnesses was undertaken without the appellant being present in the Court and the right of cross examination, in view of the absconding of the accused was closed down. The Trial Court, after closure of the evidence of Page 3 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined the prosecution, and hearing the public prosecutor, in absence of the accused, vide its judgment and order dated 12.06.2025 found that the prosecution has proved the case against the appellant beyond reasonable doubt and convicted the appellant for the offence of murder and sentenced her to undergo life imprisonment. In view of the judgment of conviction, the Dhoraji Police executed the jail warrant upon the appellant and she has been sent to the jail.
3. Being aggrieved with the judgment of conviction and order of sentence, the appellant is before this Court by preferring the present appeal.
4. We have heard learned Senior Counsel Mr.B.B. Naik, assisted by Mr. Aditya Parikh, learned counsel appearing for and on behalf of the accused appellant and Mr.L.B. Dabhi, learned Additional Public Prosecutor for the State.
5. Mr. Bharat Naik, learned senior counsel appearing on behalf of the appellant/accused, inter alia, would submit;
(a) That, this case is an example of hasty trial in which proper and sufficient opportunity to defend the case of the prosecution has not been provided to the accused which resulted into miscarriage of justice and entire trial is vitiated because the Trial Court had recorded evidence of as many as 17 witnesses without ensuring the presence of the appellant in the Court and Page 4 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined in her absence, the trial proceedings being concluded ex-parte which is nothing but amounted to incurable illegality and as such, the trial ought to be declared vitiated and the appellant be acquitted of the charges level against her.
(b) That the Trial Court held that the presence of the appellant accused could not be procured despite genuine efforts, the depositions recorded in absence of the accused appellant, is liable to be read in evidence as per the provisions of Section 299 of Cr.P.C. It is in this context, while referring Section 299 of Cr.P.C. it is submitted that the proceedings as mandated have not been complied with. So far as recording of the evidence is concerned, Section 299 empowers the Trial Court to record the depositions of the witnesses in absence of accused. However, before recording the deposition, the Trial Court has not passed reasoned order satisfying himself about the invocation of Section 299 of the Cr.P.C. The provisions for recording the evidence in absence of the accused do not authorize the Trial Court to read the depositions in evidence, unless the accused appellant afforded the opportunity to cross examine the witnesses. The Section 299 empowers the Court to record the evidence in absence of the accused, but does not authorize the Court to proceed ex-parte in absence of the accused. The Trial Court has not properly interpreted the procedural aspect of Section 299 of Cr.P.C., and therefore, the deposition recorded has no any evidentiary value and it cannot read as substantial evidence against the accused. Thus, in view of the breach of the Page 5 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined procedure provided under Section 299 of the Cr.P.C., the trial is vitiated. In support to the submissions, heavy reliance being placed on the judgment of the Supreme Court delivered in case of Nirmal Singh vs. State of Haryana 2000 (4) SCC 41, to submit that when the pre-conditions of Section 299 of the Cr.P.C. have not been complied with, the conviction on the basis of depositions recorded under Section 299 cannot be sustained.
(c) That, the trial in the present case, has been conducted and concluded in absence of the appellant-accused. The accused appellant was throughout remained absent. It is mandatory to record the statement of the accused under Section 313 of the Cr.P.C. which empowers the Court to examine the accused after the evidence of the prosecution has been recorded. In the present case, no such statement being recorded by the Trial Court. Thus, incriminating piece of evidence which has been relied by the Trial Court cannot be used against the accused, because the same has not been brought to the notice of the accused which materially prejudiced the right of the accused and on this ground, the trial is vitiated.
(d) That, the trial court failed not only to give an opportunity of defence to the appellant-accused, but has failed to consider the basic infirmities and improbabilities in the case of prosecution because the entire prosecution case rests on circumstantial evidence and the complete chain of events leading to the Page 6 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined involvement of the appellant in the crime in question have not been established by the prosecution as the prosecution failed to prove its case beyond reasonable doubt. That, the entire conviction based on the extra judicial confession made by the accused before her husband and admittedly, the relation of the appellant and her husband are not cordial and therefore, learned trial court did not appreciate the settled law that, the extra judicial confession is a weak evidence by itself and in the present case, the same would suffer from material discrepancies and improbabilities. Thus, on merits, the impugned judgment of conviction and order of sentence deserves to be set aside.
6. In such circumstances as referred to above, Mr. B.B. Naik, learned senior counsel prayed that, there being merits in the present appeal and same may be allowed and he further prayed that, the judgment of conviction and order of sentence be set aside and the appellant may be acquitted of the charge of murder. In alternative, he would urge that, the matter may be remanded to the trial court for re-trial afresh.
7. Mr. L.B. Dabhi, learned State counsel while opposing the appeal, would submits that, the appellant-accused after release on bail, did not attend the court proceedings and since the date of charge frame, she did not report to the court, nor, retain any lawyer. That, the appellant was having knowledge that the trial is pending and despite of this, after change of her residence, she failed to furnish the address of her residence to the I.O. and tried to avoid the Page 7 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined warrant proceedings. In such circumstances, the invocation of provision of Section 299 is in consonance with the procedure for recording the testimonies of the witnesses and there is no any breach or violation of the mandatory provision and after due satisfaction arrived at by the trial court, the process of recording evidence was being commenced in accordance with law. Thus, it is submitted that, no error, not to speaks of any error of law could be said to have been committed by the court below while invoking Section 299 of the Cr.P.C. and placing reliance on the testimonies of the witnesses recorded under Section 299 of the Cr.P.C. So far as merit is concerned, the learned Additional Public Prosecutor would urge that, the prosecution has successfully proved all the necessary circumstances by reliable and clinching evidence which would constitute a complete chain without a snap as would permit no conclusion other than the one of guilt of the accused. Thus, learned Additional Public Prosecutor prays that, there is no merits in the appeal and same may be dismissed.
8. We have heard at length learned counsel appearing for the respective parties and perused the case records submitted by the appellant-accused as well as the impugned judgment of conviction and order of sentence.
9. Before dealing with the rival contentions of the parties, it would be useful to refer the following admitted facts:
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(i) The appellant-accused and the complainant were neighbours and residing in the Government Colony at Dhoraji, District: Rajkot.
(ii) The son of complainant aged about 7 years found dead in the backyard of the quarters and FIR in this regard alleging the possible involvement of appellant in causing the death came to be registered on 06.08.1996 and alleged incident of murder took place on 05.08.1996, as a result, on the same day, the appellant came to be arrested.
(iii) The charge was framed against the accused on 13.10.1998.
(iv) That, the High Court vide order dated 10.12.1998, released the appellant on bail and since then, she never turned up before the trial court and she was reported to be absconding and proceedings under Sections 82 and 83 of the Cr.P.C. were initiated against her and despite of the proclamation, she did not remain present.
(v) The case proceedings shows that, the prosecution could not procure the presence of the appellant and she was absconding.
Since 29.12.1998, the NBW issued on the address of Dhoraji for so many times, it could not executed and returned back unexecuted. The trial proceedings adjourned time to time i.e. from 29.12.1998 to 30.12.2024 and the reason was absconding of the accused. The proceeding of proclamation and attachment of the property was being initiated and finalized on 30.12.2024.
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(vi) That, the trial court by invoking Section 299 of the Cr.P.C., recorded the evidence in the absence of the accused and after closure of the prosecution evidence, ex-parte in the absence of the accused without giving proper opportunity to the accused, recorded the conviction for the serious offence of murder.
(vii) That, the judgment of conviction pronounced on 12.06.2025 and immediately, within short span of time, the police executed the warrant and arrested her.
10. In the case on hand, without entering into the merits, only on question of law, we found very disturbing features of the case. The learned Trial Court has misinterpreted Section 299 of the Cr.P.C. and straightaway relied on the testimonies of the witnesses, in absence of accused. Admittedly, the accused was not represented by the lawyer nor the Trial Court has appointed any advocate either in a legal aid or as Amicus curie. The height is that after recording the evidence of each witness, the right to cross examination was closed down. Section 299 of Cr.P.C. does not authorize the Trial Court to read the testimonies as substantial evidence unless the accused is produced before the Court. If the Trial Court intended to use the testimonies as it is, against the accused, then there should be a definite finding to the effect that the witnesses are dead or incapable in giving evidence or cannot be found or their presence cannot be procured without amount of delay, expense or inconvenience. In order to understand the scope and application of Section 299, we deem it fit to refer Section 299 Page 10 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined Cr.P.C., which reads thus:
Record of evidence in absence of accused.
"Section 299(1) : If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court competent to try such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such depositions may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable."
A plain reading of the Section 299 says that, the provision is in two parts. The first part speaks of the circumstances under which witness is produced by the prosecution could be examined in the absence of the accused and second part speaks of the circumstances when such deposition can be given in the evidence against the accused in any inquiry or trial for the offence with which he is charged. It is profitable to refer the judgment of the Supreme Court delivered in the case of Nirmal Singh vs. State of Haryana 2000 (4) SCC 41, wherein the Supreme Court while interpreting Section 299, has clarified about the evidentiary value of the statement recorded under Section 299 and further held that under what circumstances and by what method, the statement of witnesses under Section 299 could have been tendered in case of admissible under Section 33 Page 11 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined of the Evidence Act and whether they can form the basis of conviction. Para-4 reads thus:
""4. .....Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses produced by the prosecution, the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under the first part of Section 299(1) of the Code of Criminal Procedure.... .....There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the prosecution, which proposes to utilise the said statement as evidence in trial, must, therefore, prove about the existence of the preconditions before tendering the evidence. ....
....On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that the preconditions in both the sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 CrPC before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299(1) of the Code of Criminal Procedure is established...."
(emphasis supplied) Page 12 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined We may also refer the case of Jayandra Vishnu Thakor Vs. State of Maharashtra and another (2009 (7) SCC 104), wherein it has been held as follows:
"25. It is also beyond any cavil that the provisions of Section 299 of the Code must receive strict interpretation, and, thus, scrupulous compliance therewith is imperative in character. It is a well-known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used. Under Section 3 of the Evidence Act like any other fact, the prosecution must prove by leading evidence and a definite categorical finding must be arrived at by the court in regard to the fact required to be proved by a statute. Existence of an evidence is not enough but application of mind by the court thereupon as also the analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part of the evidence is imperative in character."
11. Reverting back to the facts of the present case, the record shows that since 1998, the appellant accused had absconded and proclamation proceedings under Sections 82 and 83 of Cr.P.C. have been initiated in the year 2024. Despite of repeated issuance of warrant, the prosecution could not procure the presence of the accused. In such circumstances, it is proved that the accused absconded and there was no immediate prospect of arresting her. Thus, the findings for invocation of Section 299 for recording the evidence in absence of accused, to that extent, the Trial Court was right in recording the evidence of witnesses. The fault or misinterpretation of Section 299, we can visualize from the record Page 13 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined to the effect that, there was no need on the part of the Trial Court to conclude the trial in absence of accused and recorded the conviction on the basis of the deposition, recorded under Section 299 because the second part of the section says that the deposition can be given in evidence, when the accused brought before the Court or arrested and the witnesses either dead or could not find or incapable of giving evidence or their presence cannot be procured without amount of delay and other reasons prescribed in the section. Before relying on the testimonies, the Court must be satisfied that the witnesses either they dead or could not find or they incapable in giving evidence. In the present case, no such satisfaction being arrived before placing reliance on the testimonies against the accused. In the judgment also, except the observations on the aspect of absconding of the accused, and proceedings of proclamation, nothing being observed about the compliance of the second part of Section 299 Cr.P.C. Thus, we have no hesitation to hold that the pre-conditions as prescribed under Section 299 Cr.P.C. have not been established by the prosecution and placing reliance on the depositions of witnesses recorded under Section 299 in the absence of accused or without representation of the advocate, by the Trial Court is contrary to the settled principle of law and entire trial on this ground, is vitiated.
12. Next issue raised is that, the requirement of Section 313 which is mandatory in nature had not been complied with and there is a breach of natural justice whereby the accused deprived of her Page 14 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined right to defend his case which has caused prejudice to her. We found merits in the contention as in the facts of the present case, the trial has been conducted and concluded in the absence of the appellant accused. The charge was serious in nature and the minimum sentence for the offence under Section 302 is life imprisonment. Section 313 provides that in a trial for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court shall after the witnesses for the prosecution have been examined and before the accused is called on for his defence, questioned him generally on the case. Section 313(4) says that the answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against the accused. The Supreme Court in its various judgments, held and observed that it is obligatory on the part of the Trial Court to examine the accused for the purpose of enabling the accused to explain the evidence led by the prosecution against him. If such opportunity is not afforded, then the incriminating piece of evidence available, cannot be relied upon the accused for the purpose of recording the conviction. Section 313 is solemn act of the trial court and should not be treated as an empty formality. Section 313 embodies fundamental principles of "Audi Alteram Partem". In other words, the purpose to examine the accused is to meet the requirement of principle of natural justice and by following the principle, the accused asked to furnish some explanation as regards the incriminating circumstances associated with him. Thus, the circumstances which Page 15 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined are not put to him cannot be used against the accused and must be excluded from consideration. In the present case, admittedly, after closure of right to cross examine the witnesses, the accused could not produce before the Court nor he was arrested and therefore, with a view to dispose of the trial proceedings, the Trial Court hurriedly, concluded the trial and convicted the accused. Thus, the practice and procedure adopted by the Trial Court was in total violation of mandatory procedure of fair trial and the statutory right conferred upon the accused to defend the case. Thus, on this ground, the trial is vitiated because failure to comply with the provisions caused injustice and prejudice the right of the accused.
13. The another issue raised about the conclusion of the trial in the absence of accused is in violation of principle of fair trial, as envisaged under Article 21 of the Constitution of India. We have carefully examined the case records and the reasons assigned by the trial court for holding guilty the accused for the offence of murder. In our opinion, the Trial Court with a view to dispose of the old matters, adopted the short cut and disposed of the trial without following the procedure of the sessions trial and concluded the trial in hurried manner. The phrase "justice hurried is justice buried" is a legal maxim that it is emphasized the importance of due process in judicial proceedings. In short, there is a need for speedy justice, but not in a hurried manner. If the trial proceeded in hurried manner, it looses its essence and the very purpose of justice is defeated, which resulted into either wrongful conviction or acquittal. At this stage, having regard to Page 16 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined the peculiar facts of the case, we may refer the case of Zahira Habibullah H. Shaikh vs. State of Gujarat and Anr. (2004) SCC 158 (known as Best Bakery Case), wherein the Supreme Court made an observation that, failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law and the fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but, also in recognition and just application of its principles in substance to find out the truth and prevalent miscarriage of justice. In another judgment, the Supreme Court in the case Natasha Singh vs. CBI (2013) Criminal Law Journal 3346, on the aspect of fair trial, the Supreme Court observed that, under no circumstances can a person's right to fair trial be jeopardized. Thus, it is essential that, rules of procedure that have been designed to ensure justice are scrupulously followed and the court must be zealous in ensuring that there is no breach of the same. In the same way, the Supreme Court in the case of Rattiram vs. State of M.P. (2012) 4 SCC 516, observed that, a fair trial is the heart of criminal jurisprudence and in a way an important facet of a democratic polity that is governed by rule of law. Denial of fair trial is a crucifixion of human rights. It is ingrained in the concept of due process of law.
14. In the facts of the present case, the incident of murder of the minor child happened on 05.08.1996 and the FIR in this regard came to be registered on 06.08.1996 and on the same day, the appellant accused was arrested. On completion of the Page 17 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined investigation and filing of the chargesheet, the learned trial Court framed the charge against the accused on 13.10.1998. Thereafter, the appellant accused released on bail by this Court. Since 1998, after getting the bail, the accused never turned up before the trail Court and absconded. The prosecution failed to execute the non- bailable warrant and the case adjourned time to time. In other words, from 1998 to 2024, the case was adjourned time to time without much progress because of non-availability of the accused. The proclamation proceedings under Sections 82 and 83 being undertaken in the month of September, 2024. The learned trial Court in the month of December, 2024, after completion of the proclamation proceedings, passed an order to record the evidence in absence of accused in terms of Section 299 of the Cr.P.C. The trial Court recorded the statements of 17 witnesses in the absence of accused. The right to cross-examination, observing the absentness of the accused, was closed down at every stage of recording the evidence. The evidence of prosecution case was closed on 02.06.2025. The stage for recording the further statement under Section 313 of the Cr.P.C being bye-passed by the trial Court and reason for bye-passing giving by the trial Court, is to the effect that the accused was not traceable. This findings of bye-passing the mandatory procedure is against the settled principle of criminal jurisprudence and principle of fair trial, which would caused the prejudice to the accused. The learned trial Court ought to have adjourn the case after recording the testimonies of the witnesses because the right to cross-
Page 18 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined examination of the witnesses is the part of fair trial and it is statutory right conferred upon the accused as provided under Section 137 of the Evidence Act. The right to cross-examination is an acid test of the truthfulness of the statement made by the witness on oath in examination-in-chief. The trial Court after hearing the prosecution, without giving opportunity to hear the accused has proceeded to conclude the trial and after pronouncement of the judgment dated 12.06.2025 and convicted the accused for committing the offence of murder under Section 302 and sentenced her to undergo life imprisonment and issued arrest warrant. It is relevant to note that, within short span the warrant was executed. This shows that, the Dhoraji Police, who could not executed the warrant from 1998 to 2025, the same police has executed the arrest warrant after the conviction, then, the question arise on the credibility of the execution agency as well as prosecution. In such circumstances, the trial proceedings has not been conducted by following the lawful procedure and the trial was concluded in utter disregard of the principle of fair trial, which has caused a serious prejudice to the right of the accused because the conviction recorded on the basis of inadmissible evidence and that too without giving an opportunity to defend the accused. We are also satisfied that the manner in which the trial proceedings being conducted, is vitiated by serious illegalities and irregularities because of misinterpretation of Section 299 of the Cr.P.C and non-following the mandatory procedure for conducting the trial and as such, it cannot be termed to be a real Page 19 of 20 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 04 2025 Downloaded on : Thu Sep 04 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1818/2025 JUDGMENT DATED: 03/09/2025 undefined trial and therefore considering this exceptional circumstances, the judgment of conviction and order of sentence dated 12.06.2025 passed by the learned Additional Sessions Judge at Dhoraji, District: Rajkot in Sessions Case No. 183 of 1996 is set aside and by exercising powers under Section 386(b) of the Cr.P.C, matter is remanded back to trial Court for retrial (denovo) by affording proper opportunity to the appellant to defend herself. We hope that, the trial may be concluded as expeditiously as possible in accordance with law, within a period of six months from the date of this order.
15. Accordingly, the appeal stands allowed in the aforesaid terms and directions. The application for suspension of sentence being Criminal Misc. Application No.1 of 2025 is disposed of accordingly. We have not examined and discussed the merits of the case. The observations made hereinabove are confined to the adjudication of this appeal only on the question of law. The trial court shall conclude the trial on its own merits and in accordance with law without being influenced by the observations made hereinabove. Direct service permitted.
16. For approval to circulate the judgment amongst all Subordinate Judges, Registry is directed to place this judgment before the Hon'ble the Chief Justice.
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