JOHN FERNANDES Vs. STATE

JUDGEMENT

(1.) THE petitioners are the accused in Sessions Case No. 15/93 who are facing trial before the Additional District and Sessions Judge, Panaji, for offences punishable under sections 341, 342, 323, 354 and 376 rerad with section 34 of Indian Penal Code. They have challenged the order of the learned Judge dated 24 -8 -1993 whereby he has declined to entertain the petitioners' learned counsel's oral request to the effect that the evidence of prosecution witnesses should be taken in the presence of the accused.

(2.) THE case of the petitioners is that on that day the trial was on and it was fixed for recording the evidence of the prosecutrix, namely, Smt. Kalpana Dulapkar. At that time the learned Judge ordered that the proceedings should go in camera. Accordingly, the learned Judge decided to take up the matter in his chamber. However, before the recording of the deposition of Kalpana started, the petitioners' advocate impressed upon the learned Judge that the statements of the witnesses should be recorded in the presence of the accused in terms of section 273 of the Criminal Procedure Code. But the Judge rejected the request and proceeded to record Kalpana's deposition in the absence of the petitioners. This fact is recorded in the Roznama wherein the learned Judge has made observation that the rejection was due to the fact that there was no sufficient space in the chamber to allow the accused to remain present during the hearing. It is further the case of the petitioners that this circumstance did not appear to be totally correct because there was ample room in the chamber of the learned Judge to accommodate the petitioners who were even willing to stand while the statement of the prosecutrix was being recorded. The recording of the evidence in the circumstances was, according to the petitioners, bad and illegal in clear violation of the mandatory provisions of the law which requires that all the evidence in a criminal case should be recorded in the presence of the accused unless his or their personal appearance is dispensed with.

(3.) SHRI Lotlikar, learned counsel for the petitioners, has submitted that in short the question posed to the consideration of this Court was to find out as to whether the recording of the prosecutrix's evidence by the learned Sessions Judge in his chamber by keeping the accused/petitioners away from her and outside the chamber was proper and according to law. The learned counsel submitted that this was not a case of inadvertent mistake on the part of the learned Judge who has been informed and alerted by the petitioners' learned counsel of the necessity to keep the accused available and in presence of the Court at the time of the recording of evidence of the prosecutrix. In spite of that the learned Judge chose to reject the suggestion made by the petitioners' counsel and proceeded with the evidence of the prosecutrix in the absence of the accused. The only ground which he stated to take the decision was that there was not sufficient space in his chamber to permit the accused to remain inside. The learned counsel urged that this fact was not actually accurate but irrespective of the genuineness of this reason adduced by the learned Judge the circumstance, if true, would justify that in that case the learned Judge should record evidence of the prosecutrix in the Court room itself although holding the proceedings in camera. The learned counsel has further contended that the witness of the prosecution to be examined on that day was the prosecutrix herself who was the star witness in the case. The learned Judge has no doubt permitted the witness to go outside along with the advocates of both the parties when occasion would arise to identify the accused. According to the learned counsel this procedure was irregular and would not allow to the defence counsel free opportunity and access to the accused during the examination and cross -examination of the prosecutrix. Besides the learned Judge while recording evidence went on mentioning facts narrated by the prosecutrix in relation to each particular accused which were to be identified by her not in his presence because when the prosecutrix was allowed to go out for that purpose the learned Judge continued in his chamber and only the prosecutrix along with the advocates of both the sides were sent outside the chamber for the purpose of their identification.