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The Supreme Court has said, while upholding a High Court judgment which ordered fresh trial in a murder case"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. " Absence of the accused while taking evidence of prosecution witnesses, by itself, would not vitiate the trial, unless great prejudice has caused to the accused. The bench comprising of Justice Uday Umesh Lalit and Justice Indu Malhotra was considering an appeal against High court judgment which ordered fresh trial/de-novo by directing the trial court to lawfully re-record statements of the witnesses whose evidence was recorded in the first round without ensuring presence of the accused in the court. In that case question raised was that will the entire trial and conviction be vitiated for non-compliance of Section 273 IPC. Can de novo trial be ordered if it is found that during the trial several witnesses were examined in absentia of the accused ?
The Supreme Court while considering this issue in Atma Ram vs. State of Rajasthan, and has stayed the pronouncement of judgment by the Trial Court after conducting de novo trial.
Atma Ram and three others were convicted by the Trial Court and were sentenced to death. Before the Rajasthan High Court, they took a contention that entire trial is vitiated because the trial court recorded statements of a large number of prosecution witnesses without ensuring their presence in the proceedings. Order sheets of the Trial Court also categorically mentioned that the accused had not been brought to the court from the prison. The High Court held that the proceedings undertaken by the trial court to the extent of recording of the statements of witnesses in absentia of the accused cannot be considered to be lawful as they were held contrary to the mandate of Section 273 CrPC.
The court then ordered that fresh trial/de-novo by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court.
On behalf of the accused, Senior Advocate Sanjay Hegde argued that the right of an accused to watch the prosecution witnesses deposing before a Court is a valuable right and infringement of such a right is gravely prejudicial. The court agreed with this submission and observed that the right is a valuable one and there was an infringement in the present case.
The direction was given 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.
Upholding the High Court judgment, and allowing the Trial Court to proceed with re-trial, the bench clarified that 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.
In the process, the interest of the accused would also stand protected. On the other hand, if Court was to accept the submission that the proceedings stood vitiated and, therefore, the High Court was powerless to order de novo examination of the concerned witnesses, it would result in great miscarriage of justice.
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