Crl.A(MD)No.120 of 2025

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 27.01.2026

PRONOUNCED ON : 10.02.2026

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

AND

THE HONOURABLE MS.JUSTICE R.POORNIMA

Crl.A(MD)No.120 of 2025

Bhagavathiraj ... Appellant/Accused No.2

Vs.

State represented by,

The Inspector of Police,

All Women Police Station,

Theni, Theni District.

(In Crime No.19 of 2023)... Respondent/Complainant

PRAYER:- Criminal Appeal is filed under Section 415(2) of

BNSS, to call for the records from the lower Court and set

aside the Judgment passed by the learned Principal Special

Court for POCSO Act Cases, Theni in S.C.No.280 of 2023,

dated 09.12.2024 by allowing this appeal.

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For Appellant: Mr.M.Karunanithi

For Respondent: Mr.T.Senthil Kumar

Additional Public Prosecutor

JUDGMENT

(Judgment of the Court was delivered by

G.K.ILANTHIRAIYAN, J.)

This appeal is directed as against the Judgment passed

in S.C.No.280 of 2023, dated 09.12.2024, on the file of the

Principal Special Court for POCSO Act Cases, Theni

2.The case of the prosecution is that the minor victim

girl and her mother are living in the house of the grand-mother

of the victim child. Both the accused are also living in the

same village called Valayapatti. While the victim child was

studying in 6

th

standard, the first accused had committed

aggravated penetrative sexual assault on the victim and he had

paid a sum of Rs.20/- to the victim girl. It has been happened

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Crl.A(MD)No.120 of 2025

for the past one year. While being so, the second accused also

called the victim to his house and had committed aggravated

penetrative sexual assault on the victim girl. The third accused

also committed the same offence as against the victim girl,

however, the third accused died due to road accident.

P.W.6, who is the Supervisor of Child Helpline, informed about

the occurrence against the victim girl. Thereafter, P.W.6 and

another examined the victim girl and came to understand that

the victim girl was pregnant. Thereafter, P.W.6 lodged a

complaint for taking appropriate action as against the accused.

Based on the complaint, FIR was registered by the All Women

Police Station, Theni in Cr.No.19 of 2023 for the offences

punishable under Sections 5(m) r/w 6 of Protection of

Children from Sexual Offences Act, 2012 and Section 376-AB

of IPC. After completion of investigation, a final report was

filed and the same has been taken cognizance by the trial

Court.

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Crl.A(MD)No.120 of 2025

3. In order to bring the charges to home, the

prosecution had examined P.W.1 to P.W.17 and marked Ex.P.1

to Ex.P.14. On the side of the accused, no witnesses were

examined and no documents were produced before the trial

Court.

4.On perusal of oral and documentary evidence, the

trial Court found both the accused guilty for the offences

punishable under Sections 5(m) r/w 6 of POCSO Act and

Section 376 of IPC. They were sentenced to undergo life

imprisonment and to pay a fine of Rs.50,000/- each, in default

to undergo two years Rigorous Imprisonment for the offence

punishable under Section 6 of POCSO Act; they were

sentenced to undergo Life Imprisonment and to pay a fine of

Rs.50,000/- each in default to undergo two years Rigorous

Imprisonment for the offence punishable under Section 376-

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Crl.A(MD)No.120 of 2025

AB of I.P.C. Aggrieved by the same, the appellant has

preferred the present appeal.

5. The learned counsel for the appellant submits that

there was a huge delay in lodging the complaint. It is was not

explained by the prosecution. Therefore, a false case has been

foisted as against the appellant. Totally there are two accused

in this case. The appellant is arrayed as accused No.2. The

Trial Court conducted joint trial without the request of the

accused. Both had not committed the same offence. They

committed the alleged occurrence on different dates, time and

places. Therefore, the Trial Court ought not to have conducted

joint trial. It causes great prejudice to the appellant. Because

of the joint trial, both the accused were questioned under

Section 313 of Cr.P.C., with the same questionnaire. Therefore,

it causes prejudice to the appellant. If it is so, the entire trial is

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Crl.A(MD)No.120 of 2025

vitiated and the conviction and sentence imposed on the

appellant cannot be sustained and are liable to be set aside.

6. He further submitted that there was a delay in

forwarding the material objects and other documents to the trial

Court. It is fatal to the case of the prosecution. Further, there

was a material contradictions and omissions in the evidence of

the prosecution witnesses, which will cut the very root of the

prosecution case. Therefore, the prosecution failed to prove

any of the charges as alleged against the appellant. In fact, the

statement of the victim was received by the Court only on

23.06.2023 i.e., after one month from the date of registration of

the FIR. It is fatal to the case of the prosecution. Even

according to the case of the prosecution, third accused

committed the offence as against the same victim on different

dates and place separately. However, one FIR was registered

and one charge-sheet was laid. The Trial Court without

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Crl.A(MD)No.120 of 2025

considering the same, mechanically conducted the joint trial,

which is un-known to the criminal law. Therefore, it causes

serious prejudice to the accused. Both the accused cannot be

charged for both the offence because of the one act. The

accused cannot be convicted under two different provisions of

law. Even as per the statement of the victim recorded under

Section 164 of Cr.P.C., one another accused name was revealed

by her, but the prosecution neither implicated in this offence

nor lodged a complaint against him. It creates serious doubt

about the genuineness of the prosecution case. Both the

accused were questioned under Section 313 (1)(b) of Cr.P.C.,

with the very same questionnaire. In fact, Ex.P10 to Ex.P14

clearly demonstate that the alleged occurrence took place as

against the victim in different dates, time and place. Therefore,

the trial Court ought not to have conducted joint trial as against

both the accused. It is not the same transaction and both the

accused don't have any acquittance with each other. There was

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Crl.A(MD)No.120 of 2025

neither a common intention nor did they abet each other to

commit the offence for them to be tried jointly. In fact, joint

trial can be ordered only on the application filed by the

accused. The Trial Court did not follow the procedure as

contemplated under Section 223 of Cr.P.C. There shall be a

separate charge for distinct offence as per Section 218 of

Cr.P.C. The provision under Section 223 of Cr.P.C., provides

for who may be charged jointly. When there is no request

made by the accused and when there is no order for joint trial,

the Trial Court ought not to have conducted joint trial against

both the accused.

7. In support of his contention, he relied upon the

judgment of the Hon'ble Supreme Court of India in 2021 SCC

924 in the case of Nasib Sing vs. State, in which, the Hon'ble

Supreme Court held that the accused should not be prejudiced

when joint trial is conducted under Section 223 of Cr.P.C.

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8. He further relied upon the judgment of the Hon'ble

Supreme Court of India in the case of Mamman Khan vs.

State of Haryana in Crl.A.No.4002 of 2025. The Hon'ble

Supreme Court of India held that:-

(i) Separate trial is the rule under

Section 218 of Cr.P.C., a joint trial may be

permissible where the offences form part of the

same transaction or the conditions in Sections

219, 223 Cr.P.C., are satisfied, but even then it is a

matter of judicial discretion;

(ii) The decision to hold a joint or

separate trial must ordinarily be taken at the

outset of the proceedings and for cogent reasons;

(iii) The two paramount considerations

in such decision making are whether a joint trial

would cause prejudice to the accused, and whether

it would occasion delay or wastage of judicial

time;

(iv) Evidence recorded in one trial

cannot be imported into another, which may give

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Crl.A(MD)No.120 of 2025

rise to serious procedural complications if the

trial is bifurcated; and

(v) An order of conviction or acquittal

cannot be set aside merely because a joint or

separate trial was possible; interference is

justified only where prejudice or miscarriage of

justice is shown.”

9. If the Trial Court intended to hold a joint trial, it

must be taken on cogent reason. The paramount consideration

is prejudice to the accused. The appellant was caused prejudice

with the very framing of charges and the questioning under

Section 313 of Cr.P.C. If separate trial was conducted by the

Trial Court, the same set of questions would not have been

asked under Section 313 Cr.P.C., to both the accused.

Therefore, he vehemently contended that the entire trial is

vitiated and the conviction cannot be sustained as against the

appellant. Hence, he prays for remand of the entire matter for

fresh separate trial.

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Crl.A(MD)No.120 of 2025

10. Per contra, the learned Additional Public

Prosecutor appearing for the respondent would submit that

though both the accused had committed similar kind of offence

as against the victim girl in a different time and place, the

victim is one and the same and had suffered specific overt-act

of both the accused and hence, there is absolutely no prejudice

caused to the accused by conducting a joint trial. Both the

accused committed the very same offence against the very

same victim. In a sexual offence case, joint trial can be

conducted without prejudice to another accused. When the

accused failed to establish any prejudice, the Trial Court can

very well proceed with the joint trial. The appellant herein did

not even object at the time of trial when the Trial Court

proceeded against both the accused in same trial. When the

accused failed to establish that there is a prejudice caused to

the accused, the joint trial cannot be vitiated. Further, when the

prosecution witnesses are cogent and trustworthy against each

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Crl.A(MD)No.120 of 2025

of the accused, joint trial is very much permitted. The minor

victim child cannot be repeatedly called upon to depose against

each and every accused. The poor minor victim child was

exploited by all the accused and the accused committed very

serious and heinous offence as against her. In support of his

contention, he also relied upon the judgment in SLP (Crl.) No.

18377 of 2024, in the case of Sushil Kumar Tiwari vs. Hare

Ram Sah and others.

11. Heard the learned counsel appearing for the

appellant and the learned Additional Public Prosecutor

appearing for the respondent.

12. Totally there are three accused in this case. The

appellant is arrayed as accused No.2. During the investigation,

the third accused died. Accused Nos.1 & 2 are charged for the

offence punishable under Sections 5(m) r/w 6 of POCSO Act

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Crl.A(MD)No.120 of 2025

and Section 376-AB of IPC. The charges framed by the Trial

Court are as follows:-

Kjyhtjhf:-

“

16.05.2023 Mk; Njjpad;W

tisagl;bapy; cs;s Kjy; vjphpapd; jfu

tPl;by; Kjy; vjphp jdJ ifia muR gl;bay;

rhl;rp 1 ghjpf;fg;gl;l rpWkpapd; ngz; cWg;gpy;

Eioj;Js;shH. NkYk; Kjy; vjphp jdJ Mz;

cWg;ig ghjpf;fg;gl;l rpWkpapd; thapy; itj;J

ef;f itj;Js;shH. NkYk; Kjy; vjphp jdJ

Mz; cWg;ig ghjpf;fg;gl;l rpWkpapd; ifahy;

gpbf;f nrhy;ypAs;shH. ,e;j rk;gtj;jpw;F

Kd;dH Kjy; vjphp ghjpf;fg;gl;l rpWkpia

gyKiw njhlHe;J td;GzHr;rp nra;Js;shH.

MfNt Kjy; vjphp ,e;jpa jz;lid rl;lk;

gphpT 376-AB,d; fPo; jz;bf;fj;jf;f Fw;wj;ij

Ghpe;Js;shH vd;Wk;;:

,uz;lhtjhf

16.05.2023Mk; Njjpad;W tisagl;bapy;

cs;s Kjy; vjphpapd; jfu tPl;by; Kjy; vjphp

jdJ ifia muR gl;bay; rhl;rp 1

ghjpf;fg;gl;l rpWkpapd; ngz; cWg;gpy;

Eioj;Js;shH. NkYk; Kjy; vjphp jdJ Mz;

cWg;ig ghjpf;fg;gl;l rpWkpapd; thapy; itj;J

ef;f itj;Js;shH. NkYk; Kjy; vjphp jdJ

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Crl.A(MD)No.120 of 2025

Mz; cWg;ig ghjpf;fg;gl;l rpWkpapd; ifahy;

gpbf;f nrhy;ypAs;shH. ,e;j rk;gtj;jpw;F

Kd;dH Kjy; vjphp ghjpf;fg;gl;l rpWkpia

gyKiw njhlHe;J td;GzHr;rp nra;Js;shH.

mg;NghJ ghjpf;fg;gl;l rpWkpapd; taJ 11

Mz;Lfs;. MfNt Kjy; vjphp 2019 Mk; Mz;L

Foe;ijfis ghypay; Fw;wq;fspypUe;J

ghJfhf;Fk; (jpUj;jk;) rl;lk; gphpT 5(m) c/, 6-

,d; fPo; Fw;wk; ,ioj;Js;shH vd;Wk;:

%d;whtjhf:-

16.05.2023Mk; Njjpf;F gpd;dH

tisagl;b #g;Gf;fil njUtpy;

mike;Js;s ,uz;lhk; vjphp tPl;by;> ,uz;lhk;

vjphp muR gl;bay; rhl;rp 1 ghjpf;fg;gl;l

rpWkpapd; khHgfj;;ij gpbj;J frf;fp ef;fp

cs;shH. NkYk; ,uz;lhk; vjphp ghjpf;fg;gl;l

rpWkpapd; ngz; cWg;ig ef;fpAs;shH.

NkYk; ,uz;lhk; vjphp gyKiw ghjpf;fg;gl;l

rpWkpia td;GzHT nra;Js;shH.

MfNt ,uz;lhk; vjphp ,e;jpa jz;lid rl;lk;

gphpT 376-AB,d; fPo; jz;bf;fj;jf;f Fw;wj;ij

Ghpe;Js;shH vd;Wk;

ehd;fhtjhf:-

16.05.2023Mk; Njjpf;F gpd;dH

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Crl.A(MD)No.120 of 2025

tisagl;b #g;Gf;fil njUtpy;

mike;Js;s ,uz;lhk; vjphp tPl;by;> ,uz;lhk;

vjphp muR gl;bay; rhl;rp 1 ghjpf;fg;gl;l

rpWkpapd; khHgfj;;ij gpbj;J frf;fp ef;fp

cs;shH. NkYk; ,uz;lhk; vjphp ghjpf;fg;gl;l

rpWkpapd; ngz; cWg;ig ef;fpAs;shH.

NkYk; ,uz;lhk; vjphp gyKiw ghjpf;fg;gl;l

rpWkpia td;GzHT nra;Js;shH. mg;NghJ

ghjpf;fg;gl;l rpWkpapd; taJ 11 Mz;Lfs;.

MfNt ,uz;lhk; vjphp 2019 Mk; Mz;L

Foe;ijfis ghypay; Fw;wq;fspypUe;J

ghJfhf;Fk; (jpUj;jk;) rl;lk; gphpT 5(m) c/,

6-,d; fPo; Fw;wk; ,ioj;Js;shH vd;Wk; vjphpfs;

kPjhd Fw;wr;rhl;Lf;fs; ,e;ePjpkd;wj;jhy;

tprhuiz nra;aj;jf;fJ vd;Wk;.

”

13.The minor victim child had deposed as P.W.1. She

is staying with her mother in the house at Kodangipatti, where

her mother is also working as Sweeper. While being so, when

P.W.1 was returning to her home from school, the first accused

had taken her to his house and had committed aggravated

penetrative sexual assault on her. Likewise, the second

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Crl.A(MD)No.120 of 2025

accused also on several occasions had committed aggravated

penetrative sexual assault on the minor victim child. While

being so, on 16.05.2023 the first accused had committed

aggravated penetrative sexual assault on the the victim child

and the second accused on the same day had committed rape

on her. The victim child and her mother alone are living

without the father of the victim child as he left them

immediately after her birth. Utilising the said circumstances,

both the accused exploited the poverty of the poor minor

victim child for their sexual needs. While being so, P.W.6, who

is working as supervisor of Child Helpline, received a phone

call on 20.05.2023 that the victim child was subjected to

aggravated penetrative sexual assault. Thereafter, P.W.6 went to

the house of the victim and conducted an enquiry. During

enquiry, the mother of the victim child, who deposed as P.W.4,

stated that the victim child did not menstruate for four months

and she further stated that totally there are three accused in

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total who had committed aggravated penetrative sexual assault

on the victim child. Therefore, the victim child was brought to

the Child Welfare Committee on 22.05.2023 by P.W.6.

Thereafter, the victim child admitted into a home situated at

Kodangipatti. Only thereafter, the complaint was lodged

before the Inspector of Police, Palanichettipatti Police Station.

As directed by the Deputy Superintendent of Police, the

respondent police received the complaint from the victim child,

which was marked as Ex.P1. Thereafter, the respondent police

had registered the FIR in Cr.No.19 of 2023 for the offence

punishable under Sections 5(m) r/w 6 of POCSO Act and

Section 376-AB of IPC. Thereafter, the statement of the victim

child was recorded under Section 164 of Cr.P.C., which was

marked as Ex.P2. The victim child was subjected to medical

examination immediately after registration of the FIR i.e., on

26.05.2023. The victim child was issued certificate of

examination for sexual offence, which was marked as Ex.P6.

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The medical report shows that the victim child was moderately

built and moderately nourished and that her physical and

mental status was normal for her age. Further, no external

injuries were found on her body and her genital examination

showed that her hymen was not intact. The relevant portions of

the victim child's deposition are as follows:-

“ehd; gs;spf;F nrd;W tUk; NghJ

vdJ ifiag; gpbj;J M[H vjphp Kdpahz;b

jhj;jh mtuJ tPl;bw;F ,Oj;Jr; nrd;whH.

vd;id jyfhzpapy; gLf;f itj;J Kdpahz;b

jhj;jh mtUila fl;il tpuiy vLj;J ehd;

cr;rh NghFk; ,lj;jpy; ifia cs;Ns

tpl;lhH. NkYk; mtuJ cr;rh

NghFk; ,lj;ij vdJ thapy; itj;jhH. vdJ

neQ;ir gpbj;jhH. ehd; cr;rh

NghFk; ,lj;jpy; thia itj;J ef;fpdhH.

mjd;gpwF ehd; tPl;bw;F nrd;Wtpl;Nld;. vdJ

mk;khtplk; ,JFwpj;J nrhd;dhy; vdJ mk;kh

vdf;F #L itj;J tpLthH vd Kdpahz;b

jhj;jh nrhd;dhH. thj;jpahH ehd;

tpisahbf;nfhz;bUe;j NghJ mtuJ tPl;bw;F

mioj;J nrd;W mtH Nrhpy; cl;fhHe;jpUe;jhH>

mtuJ cr;rh NghFk; ,lj;ij vd;id ifapy;

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Crl.A(MD)No.120 of 2025

gpbf;fr;nrhd;dhH. mjd;gpd; mtH cr;rh

NghFk; ,lj;ij vd;id thapy; itf;f

nrhd;dhH> vd;Dila neQ;irg; gpbj;J

mKf;fpdhH. ehd; taJf;F tUtjw;F

Kd;Dk;> ehd; taJf;F te;j gpd;Dk; gyKiw

Kdpahz;b jhj;jhTk;> thj;jpahUk; ,Nj Nghy;

gyKiw nra;jdH. ehd; Ie;jhk; tFg;G

gbf;Fk;NghJ ,NjNghy; ele;jJ. Kjy; vjphp

Kdpahz;b jhj;jh vd rhl;rp milahsk;

fhl;LfpwhH. ,uz;lhk; vjphpia thj;jpahH vd

rhl;rp milahsk; fhl;LfpwhH. vd;dplk;

fhl;lg;gLk; GfhH thf;F%yj;jpy; cs;s

ifnahg;gk; vd;DilaJ.

”

14. It is also corroborated by her statement recorded

under Section 164 Cr.P.C., which was marked as Ex.P2. The

person, who had conducted preliminary enquiry had deposed as

P.W.6. It reveals that after receipt of phone call, she visited the

house of the victim and conducted an enquiry. During enquiry,

it was found that the accused persons had committed

aggravated penetrative sexual assault on the victim child.

Thereafter, the same was informed to the Child Welfare

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Committee and the victim child was produced before the Child

Welfare Committee on 22.05.2023. The mother of the victim

child deposed as P.W.4. She categorically deposed about the

offence committed by the accused.

15. The Member of the Child Welfare Committee

deposed as P.W.7. It is also revealed that, during enquiry, the

victim child stated that the accused had committed aggravated

penetrative sexual assault on her and hence, the victim child

was admitted in the Home. In order to prove the age of the

victim child, the Head Master of the A.Valaiyapatti Panchayat

Union Middle School deposed as P.W.10 and produced the

school certificate and the same was marked as Ex.P5. It

confirmed that the victim child was aged only about 11 years at

the time of occurrence. Though all the witnesses were cross-

examined by the first accused, nothing was elicited in their

favour during cross-examination to disprove the case of the

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prosecution. Therefore, the prosecution had proved the charges

and the trial Court rightly convicted the accused for the

offences punishable under Sections 5(m) r/w 6 of POCSO and

376 AB of IPC.

16. On the submission of the learned counsel for the

appellant, the following points have to be analysed by this

Court: (i) whether joint trial conducted by the trial Court

caused any prejudice to the appellant.

(ii) Whether it is correct for both the accused to be

questioned under Section 313 of Cr.P.C., with the same

questionnaire and whether it causes any prejudice.

(iii) Whether joint trial can be conducted for both the

accused when they did not commit the offences in the course of

same transaction.

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17. The learned counsel for the appellant mainly

relied upon the provision under Section 223 of Cr.P.C. It

provides for the circumstances where persons may be charged

jointly. It is relevant to extract the Section 223 of Cr.P.C.,

“223. What persons may be charged jointly:-

The following persons may be charged and tried

together, namely;

(a) persons accused of the same offence committed

in the course of the same transaction;

(b) persons accused of an offence and persons

accused of abetment of, or attempt to commit, such

offence;

( c) persons accused of more than one offence of the

same kind, within the meaning of section 219

committed by them jointly within the period of

twelve months;

(d) persons accused of different offences committed

in the course of the same transaction;

(e) persons accused of an offence which includes

theft, extortion, cheating, or criminal

misappropriation, and persons accused of receiving

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or retaining, or assisting in the disposal or

concealment of, property possession of which is

alleged to have been transferred by any such

offence committed by the first-named persons, or of

abetment of or attempting to commit any such last-

named offence;

(f) persons accused of offences under sections 411

and 414 of the Indian Penal Code (45 of 1860) or

either of those sections in respect of stolen property

the possession of which has been transferred by one

offence;

(g) persons accused of any offence under Chapter

XII of the Indian Penal Code (45 of 1860) relating

to counterfeit coin and persons accused of any

other offence under the said Chapter relating to the

same coin, or of abetment of or attempting to

commit any such offence; and the provisions

contained in the former part of this Chapter shall,

so far as may be, apply to all such charges;

Provided that where a number of persons are

charged with separate offences and such persons

do not fall within any of the categories specified in

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this section, the Magistrate or Court of Sessions

may, if such persons by an application in writing,

so desire, and if he is satisfied that such persons

would not be prejudicially affected thereby, and it is

expedient so to do, try all such persons together.”

18. The principles governing joint and separate trials

have been elaborately dealt with by the Hon'ble Supreme Court

of India in the case of Nasib Singh v. State reporeted in 2021

Online SC 94. The principles are as follows:-

“1. Section 218 provides that separate

trials shall be conducted for distinct offences

alleged to be committed by a person. Sections

219-221 provide exceptions to this general rule. If

a person falls under these exceptions, then a joint

trial for the offences which a person is charged

with may be conducted. Similarly, under Section

223, a joint trial may be held for persons charged

with different offences if any of the clauses in the

provision are separately or on a combination

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satisfied.

2. While applying the principles enunciated in

Sections 218-223 on conducting joint and

separate trials, the trial court should apply a two-

pronged test, namely,

(I) whether conducting a joint/separate

trial will prejudice the defence of the accused; and

/ or (ii) whether conducting a joint/separate trial

would cause judicial delay.

3. The possibility of conducting a joint

trial will have to be determined at the beginning

of the trial and not after the trial based on the

result of the trial. The appellate court may

determine the validity of the argument that there

ought to have been separate/joint trial only based

on whether the trial had prejudiced the right of

accused or the prosecutrix.

4. Since the provisions which engraft an

exception use the phrase “may” with reference to

conducting a joint trial, a separate trial is usually

not contrary to law even if a joint trial could be

conducted, unless proven to cause a miscarriage

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of justice.

5. A conviction or acquittal of the

accused cannot be set aside on the mere ground

that there was a possibility of a joint or a separate

trial. To set aside the order of conviction or

acquittal, it must be proved that the rights of the

parties were prejudiced because of the joint or

separate trial, as the case may be.”

19. Thus, it is clear that the separate trial is the Rule

under Section 218 Cr.P.C; a joint trial may be permissible

where the offences form part of the same transaction or the

conditions in Sections 219-223 Cr.P.C., are satisfied, but even

then it is a matter of judicial discretion. A joint or separate trial

must ordinarily be taken at the outset of the proceedings and

for cogent reasons. The two paramount considerations for

conducting joint trial are whether a joint trial would cause

prejudice to the accused, and whether it would occasion delay

or wastage of judicial time. The evidence recorded in one trial

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cannot be imported into another, which may give rise to serious

procedural complications if the trial is bifurcated. Finally, an

order of conviction or acquittal cannot be set aside merely

because a joint or separate trial was possible; interference is

justified only where prejudice or miscarriage of justice is

shown.

20. Applying those principles, recently the Hon'ble

Supreme Court of India in Criminal Appeal No.4002 of 2025

in the case of Mamman Khan vs. State of Haryana held as

follows:-

“22. In the present case, the evidence

against the appellant is identical to that against

the co-accused. Separate trials would necessarily

involve recalling the same witnesses, resulting in

duplication, delay, and the risk of inconsistent

findings. The High Court, in affirming the

segregation order, failed to appreciate these

consequences and confined itself to the

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discretionary language of section 223 Cr.P.C

without evaluating whether the factual

circumstances justified such segregation.

Therefore, we hold that the segregation of the

appellant’s trial, without any legally recognized

justification, is unsustainable in law and violative

of the appellant’s right to a fair trial under Article

21.

23. At this juncture, we deem it necessary

to reiterate the foundational constitutional

principle enshrined in Article 14 of the

Constitution, which guarantees that all persons

are equal before the law and entitled to equal

protection of the laws. This principle extends

beyond mere formal equality and requires that

legal procedures be applied fairly and uniformly,

irrespective of an individual’s public position or

status. The right to equal access to justice is an

essential facet of the rule of law, and no person –

whether a sitting MLA or an ordinary citizen – can

be subjected to procedural disadvantage or

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preferential treatment without express legal

justification.

23.1. While expeditious disposal of cases

involving legislators is undoubtedly desirable,

such administrative prioritization cannot override

the procedural safeguards guaranteed under

the Cr.P.C. or the constitutional mandate of

equality. Segregating the appellant’s trial solely on

account of his political office, in the absence of

any legal or factual necessity, amounts to

arbitrary classification and undermines the

integrity of the criminal justice process.”

21. The Hon'ble Supreme Court of India after

following the principles laid down in the case of Nasib Singh

v. State reported in 2021 Online SC 94, held that the

segregation of the appellant’s trial, without any legally

recognized justification, is unsustainable in law and violative

of the appellant’s right to a fair trial as enshrined under Article

21.

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22. Thus, it is clear that the entire trial can be vitiated

for conducting joint trial for the accused who had committed

distinct offences and not in the course of same transaction. In

that case, the accused necessarily has to prove the prejudice

caused to him otherwise it give rise to serious procedural

complications. Applying the above principles, it has to seen

that whether joint trial conducted by the trial Court had caused

any prejudice to the appellant herein.

23. In order to substantiate the same, the learned

counsel for the appellant raised a ground that the trial Court

after examining the prosecution witness, questioned both the

accused under Section 313 Cr.P.C., to record their statements.

Both the accused were questioned by the trial Court with the

same questionnaire when they did not commit offence in the

course of same transaction. It causes serious prejudice to the

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appellant herein. Therefore, the appellant was not able to make

his statement properly.

24. The learned counsel for the appellant raised a

ground for prejudice caused to the appellant by pointing out the

same set of questions put up against both the accused in the

course of joint trial conducted by the Trial Court. The

investigation itself is a defective one and as such entire framing

of charges and trial conducted against the accused has to be

vitiated. In support of his contention, he relied upon the

judgment of the Hon'ble Supreme Court of India in the case of

Shailesh Kumar vs. State of U.P reported in 2024 SCC Online

SC 203.

The relevant paragraph is extracted hereunder:-

“18. The investigating agency, the

prosecutor and the defence are expected to lend

ample assistance to the court in order to decipher the

truth. As the investigating agency is supposed to

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investigate a crime, its primary duty is to find out the

plausible offender through the materials collected. It

may or may not be possible for the said agency to

collect every material, but it has to form its opinion

with the available material. There is no need for

such an agency to fix someone as an accused at any

cost. It is ultimately for the court to decide who the

culprit is. Arvind Kumar @ Nemichand v. State of

Rajasthan, (2021) 11 SCR 237,

“Fair, Defective, Colourable

Investigation

40. An Investigating Officer being

a public servant is expected to conduct the

investigation fairly. While doing so, he is

expected to look for materials available for

coming to a correct conclusion. He is

concerned with the offense as against an

offender. It is the offense that he

investigates . Whenever a homicide happens,

an investigating officer is expected to cover

all the aspects and, in the process, shall

always keep in mind as to whether the offence

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would come under Section 299 IPC sans

Section 300 IPC. In other words, it is his

primary duty to satisfy that a case would fall

under culpable homicide not amounting to

murder and then a murder. When there are

adequate materials available, he shall not be

overzealous in preparing a case for an

offense punishable under Section 302 IPC.

We believe that a pliable change is required

in the mind of the Investigating Officer.

After all, such an officer is an officer of the

court also and his duty is to find out the

truth and help the court in coming to the

correct conclusion. He does not know sides,

either of the victim or the accused but shall

only be guided by law and be an epitome of

fairness in his investigation.

41. There is a subtle difference

between a defective investigation, and one

brought forth by a calculated and deliberate

action or inaction. A defective investigation

per se would not enure to the benefit of the

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accused, unless it goes into the root of the

very case of the prosecution being

fundamental in nature. While dealing with a

defective investigation, a court of law is

expected to sift the evidence available and

find out the truth on the principle that every

case involves a journey towards truth. There

shall not be any pedantic approach either by

the prosecution or by the court as a case

involves an element of law rather than

morality.

xxx xxx xxx

44. We would only reiterate the

aforesaid principle qua a fair investigation

through the following judgment of Kumar v.

State, (2018) 7 SCC 536:

“27. The action of investigating authority in

pursuing the case in the manner in which they

have done must be rebuked. The High Court

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on this aspect, correctly notices that the police

authorities have botched up the arrest for

reasons best known to

them. Although we are aware of the ratio laid

down in Parbhu v. King Emperor [Parbhu v.

King Emperor, AIR 1944 PC 73], wherein the

Court had ruled that irregularity and illegality

of arrest would

not affect the culpability of the offence if the

same is proved by cogent evidence, yet in this

case at hand, such irregularity should be

shown deference as the investigating

authorities are responsible for suppression of

facts.

28. The criminal justice must be above

reproach. It is irrelevant whether the falsity

lie in the statement of witnesses or the guilt of

the accused. The investigative authority has a

responsibility to investigate in a fair manner

and elicit truth. At the cost of repetition, I

must remind the authorities concerned to

take up the investigation in a neutral manner,

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without having regard to the ultimate result.

In this case at hand, we cannot close our eyes

to what has happened; regardless of guilt or

the asserted persuasiveness of the evidence,

the aspect wherein the police has actively

connived to suppress the facts, cannot be

ignored or overlooked.”

45. A fair investigation would become a

colourable one when there involves a

suppression. Suppressing the motive, injuries

and other existing factors which will have the

effect of modifying or altering the charge would

amount to a perfunctory investigation and,

therefore, become a false narrative. If the courts

find that the foundation of the prosecution case

is false and would not conform to the doctrine of

fairness as against a conscious suppression,

then the very case of the prosecution falls to the

ground unless there are unimpeachable

evidence to come to a conclusion for awarding a

punishment on a different charge.”

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25. The above judgment is not applicable to the case

on hand for the reason state supra since this Court finds no

defective investigation in the case on hand and the respondent

had rightly filed the final report and on receipt of the same, the

Trial Court had framed the charges against both the accused.

26. Insofar as the questioning under Section 313 of

Cr.P.C., is concerned, the learned counsel for the appellant

relied upon the judgment of the Hon'ble Supreme Court of

India in the case of Suresh Sahu and another vs. State of

Bihar reported in 2025 SCC Online SC 2637. The relevant

paragraphs 18 to 23 are extracted hereunder:-

“18. It is evident from the record that only three

questions were put to each of the accused in their

examination under Section 313 CrPC (Section 351 BNSS).

These questions were framed in an extremely generic and

mechanical manner, without articulating any of the

specific incriminating circumstances appearing in the

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prosecution evidence.

19. The purpose of recording the statement of an

accused under Section 313 CrPC (Section 351 BNSS) is to

make the accused aware of the circumstances as

appearing against him in the prosecution case and to seek

his explanation for the same. For this purpose, the

accused must be informed of each and every incriminating

circumstance which the prosecution intends to rely upon

for bringing home the guilt of the accused. Omission to

put material circumstances to the accused in the statement

under Section 313 CrPC (Section 351 BNSS) would cause

grave prejudice and may, in a given case, even prove fatal

to the case of the prosecution. Of course, the appellate

Court can rectify this error by requiring that a fresh

statement under Section 313 CrPC (Section 351 BNSS) be

recorded for removing the lacunae, if any, in this

procedure. In the present case, on going through the

statements of both the accused persons recorded by the

trial Court under Section 313 CrPC (Section 351 BNSS)

(supra), we find that these statements are almost a

reproduction of the language of the charge and, in no

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manner, convey to the accused persons the incriminating

circumstances/evidence produced by the prosecution so as

to indict them for the crime. This defect goes to the root of

the matter.

20. In this regard, we may refer to the judgment

of this Court in the case of Ashok v. State of Uttar

Pradesh8, wherein a three-Judge Bench of this Court

observed as follows: -

“14. Now, we come to the appellant's

statement, recorded per Section 313 of the CrPC. Only

three questions were put to the appellant. In the first

question, the names of ten prosecution witnesses were

incorporated, and the only question asked to the

appellant was what he had to say about the testimony

of ten prosecution witnesses. In the second question,

all the documents produced by the prosecution were

referred, and a question was asked, what the appellant

has to say about the documents. In the third question,

it was put to the appellant that knowing the fact that

the victim belongs to a scheduled caste, he caused her

death after raping her and concealed her dead body,

and he was asked for his reaction to the same. What

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PW-1 and PW-2 deposed against the appellant was not

put to the appellant. The contents of the incriminating

documents were not put to the appellant.

15. In the case of Raj Kumar, in paragraph

17, this Court has summarised the law laid down by

this Court from time to time on Section 313 of the

CrPC. Paragraph 17 reads thus:

“17. The law consistently laid

down by this Court can be summarized as

under:

(i) It is the duty of the Trial Court to put

each material circumstance appearing in

the evidence against the accused

specifically, distinctively and separately.

The material circumstance means the

circumstance or the material on the basis of

which the prosecution is seeking his

conviction;

(ii) The object of examination of the accused

under Section 313 is to enable the accused

to explain any circumstance appearing

against him in the evidence;

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(iii) The Court must ordinarily eschew

material circumstances not put to the

accused from consideration while dealing

with the case of the particular accused;

(iv) The failure to put material

circumstances to the accused amounts to a

serious irregularity. It will vitiate the trial if

it is shown to have prejudiced the accused;

(v) If any irregularity in putting the material

circumstance to the accused does not result

in failure of justice, it becomes a curable

defect. However, while deciding whether the

defect can be cured, one of the

considerations will be the passage of time

from the date of the incident;

(vi) In case such irregularity is curable,

even the appellate court can question the

accused on the material circumstance which

is not put to him; and

(vii) In a given case, the case can be

remanded to the Trial Court from the stage

of recording the supplementary statement of

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the concerned accused under Section 313 of

CrPC.

(viii) While deciding the question whether

prejudice has been caused to the accused

because of the omission, the delay in raising

the contention is only one of the several

factors to be considered.”

In a given case, the witnesses may

have deposed in a language not known to the

accused. In such a case, if the material

circumstances appearing in evidence are not put

to the accused and explained to the accused, in

a language understood by him, it will

cause prejudice to the accused.

16. In the present case, there is no

doubt that material circumstances appearing in

evidence against the appellant have not been put

to him. The version of the main prosecution

witnesses PWs-1 and 2 was not put to him. The

stage of the accused leading defence evidence

arises only after his statement is recorded under

Section 313 of the CrPC. Unless all material

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circumstances appearing against him in

evidence are put to the accused, he cannot

decide whether he wants to lead any defence

evidence. In this case, even the date and place of

the crime allegedly committed by the appellant

were not put to the appellant. What was

reportedly seen by PW-2 was not put to the

appellant in his examination. Therefore, the

appellant was prejudiced. Even assuming that

failure to put material to the appellant in his

examination is an irregularity, the question is

whether it can be cured by remanding the case

to the Trial Court.

17. The date of occurrence is of 27th

May 2009. Thus, the incident is fifteen and a

half years old. After such a long gap of fifteen

and half years, it will be unjust if the appellant

is now told to explain the circumstances and

material specifically appearing against him in

the evidence. Moreover, the appellant had been

incarcerated for about twelve years and nine

months before he was released on bail.

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Therefore, considering the long passage of time,

there is no option but to hold that the defect

cannot be cured at this stage. Even assuming

that the evidence of PW-2 can be believed, the

appellant is entitled to acquittal on the ground

of the failure to put incriminating material to

him in his examination under Section 313 of the

CrPC. We are surprised to note that both the

Trial Court and High Court have overlooked

noncompliance with the requirements of Section

313 of the CrPC. Shockingly, the Trial Court

imposed the death penalty in a case which ought

to have resulted in acquittal. Imposing capital

punishment in such a

case shocks the conscience of this Court.”

(Emphasis supplied)

21. Recently, this Court in the case of Ramji

Prasad Jaiswal v. State of Bihar9, reiterated the

position of law and held as follows:—

“35. After surveying the law on this print, let us

revert back to the facts of the present case. The

manner in which the trial court had recorded

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the statements of the appellants under Section

313 CrPC

was not at all in tune with the requirements 5

(2025) 2 SCC 381 31 of the said provision as

explained by this Court as discussed supra.

36. Four questions generally were put to the

appellants, that too, in a most mechanical

manner. These questions did not reflect the

specific prosecution evidence which came on

record qua the appellants. As all the

incriminating evidence were not put to the

notice of the appellants, therefore, there was a

clear breach of Section 313 CrPC as well as the

principle of audi alteram partem. Certainly, this

caused serious prejudice to the appellants to

put forth their case. Ultimately, such evidence

were relied upon by the court to convict the

appellants.

37. Therefore, there is no doubt that such

omission, which is a serious irregularity, has

completely vitiated the trial. Even if we take a

more sanguine approach by taking the view that

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such omission did not result in the failure of

justice, it is still a material defect albeit

curable. In Raj Kumar (supra), this Court

highlighted that while deciding whether such

defect can be cured or not, one of the

considerations will be the passage of time from

the date of the incident.

38. As we have already noted, the period during

which the offence was allegedly committed was

from September, 1982 to December, 1982. Trial

was concluded on 29.05.2006. Nineteen years

have gone by since then. At this distant point of

time, instead of

aiding the cause of justice, it will lead to

miscarriage of justice if the case qua the two

appellants are remanded to the trial court to

restart the trial from the stage of recording the

statements of the accused persons under

Section 313 CrPC. In such circumstances, we

are of the considered opinion that it is neither

possible nor feasible to order such remand.

Consequently, appellants are entitled to the

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benefit of doubt because of such omission in the

recording of their statements under Section 313

Cr. P.C. since the trial court had relied on the

evidence adverse to the appellants while

convicting them.”

(Emphasis supplied)

22. It is pertinent to note that the High

Court, in the impugned judgment, has not even

discussed the perfunctory manner in which the

statements of the accused-appellants under Section

313 CrPC (Section 351 BNSS) were recorded (supra).

23. Looking to the highly laconic and

defective manner in which the statements of the

accused-appellants were recorded under Section 313

CrPC (Section 351 BNSS) (supra), we could have

remanded the matter to the trial Court for re-

recording the said statements and for delivering a

fresh judgment. However, considering the fact that

more than 35 years have passed since the incident

took place, we feel that it would be nothing short of

an exercise in futility to direct such remand. We have,

therefore, minutely sifted through the evidence on

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record and shall analyze the same to adjudicate as to

whether the conviction of the accused-appellants is

justified in the facts, circumstances and evidence as

available on record.”

27. The above judgment is not applicable to the case

on hand for the simple reason that this Court finds no infirmity

or illegality in the questions put up by the trial Court. Though

all the questions were put up against both the accused jointly,

all the allegations and overt acts are one and the same. Both

the accused committed the crime one after around the same

period of time. Therefore, the Trial Court has rightly posted

the same questions under Section 313 Cr.P.C., to both the

accused. It cannot be said that it would affect the rights of the

accused in any manner.

28. It is the further contention of the appellant that, as

per Section 218 Cr.P.C., separate charges have to be framed for

the distinct offences. In the case on hand, no separate charges

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framed were against each accused and in a single charge, both

the accused were charged for the offence under Section 5(m)

r/w Section 6 of POCSO Act. For distinct offences, there shall

be separate charge and every charges shall be tried separately.

Therefore, joint trial caused serious prejudice to the appellant.

29. Both the contentions cannot be countenanced for

the reasons state hereunder:-

(i) Admittedly, the victim is the same in both the

incidents, but both accused are not connected to each other.

However, both the accused had exploited the victim using her

circumstances to their advantage. The accused had committed

the offence one after the other. Though the accused did not

commit the offence in the course of same transaction, they had

committed similar offence against the same victim child.

(ii) Further joint trial would depend on the meaning

of the expression “same transaction” as occurring in clause (d)

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of Section 223 Cr.P.C. Whether a transaction can be regarded

as the same would necessarily depend upon the particular facts

of each case. Though the Legislature has left the said

expression undefined, the same can be inferred by applying to

cases where there is proximity of time or place or unity of

purpose and design or continuity of action in respect of a series

of acts. Thus, where there is a commonality of purpose or

design, where there is a continuity of action, then all those

persons involved can be accused of the same or different

offences "committed in the course of the same transaction".

Further when the Courts deal with an issue of child abuse, it

must apply the laws in protecting the best interest of child,

since interest of the child is paramount and not the interest of

perpetrator of the crime. The approach must be child-centric.

30. Therefore, it cannot be said that the accused had

committed distinct offences as against the victim child. All the

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cross-examination by the first accused were duly adopted by

the second accused namely the appellant herein. When the

adoption of the entire cross-examination of the prosecution

witness by the first accused did not cause any prejudice, the

appellant cannot now say that the joint trial vitiates the entire

trial and that it caused serious prejudice to him.

31. The joint trial is permissible by satisfying the

conditions contemplated under Section 219 to 223 of Cr.P.C.,

but even then, it is a matter of judicial discretion. Further, if

one accused sought for joint trial, then the trial Court ought to

have seen that the joint trial causes any prejudice to the other

accused. In the case on hand, though there were three accused,

during investigation third accused died and as such, the

respondent filed final report as against two accused. On receipt

of said charge-sheet, the trial Court framed charges against

both the accused. Therefore, the trial Court conducted joint

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trial against both the accused on its own and without anybody's

request. Though, that was the case, neither of the accused

raised any objections to conduct joint trial at the beginning of

such trial. In fact, the appellant herein adopted the entire cross-

examination of the prosecution witness carried out by the first

accused. Therefore, on considering whether the joint trial had

caused any prejudice to the accused, as discussed supra, in the

case on hand, the appellant failed to prove that the joint trial

conducted by the trial Court has caused serious prejudice to

him.

32. The same issue was also dealt with by the Hon'ble

Supreme Court of India in the case of Sushil Kumar Tiwari vs.

Hare Ram Sah & others in SLP(Crl.)No.18377 of 2024, in

which, the Hon'ble Supreme Court of India held as follows:-

“29. As an extension of the same

discussion, we must also refer to the next ground

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of contention i.e. non-compliance of Section

223 Cr.P.C. The High Court has observed that the

joinder of trial of both the Respondent Nos. 1 and

2 was impermissible and consequently, the

Respondent Nos. 1 and 2 have been prejudiced

before the Trial Court. Ordinarily, distinct offences

committed by different persons are to be tried

separately. The principle becomes clear from a

reading of Section 218 Cr.P.C. However,

from Sections 219 to 223 of Cr.P.C., various

situations are envisaged wherein multiple offences

committed by the same person could be tried

together or different offences committed by

different persons could be tried together. Whereas,

a joint trial of different offences committed by the

same person is contingent upon the fulfilment of

the conditions envisaged in Sections 219 to 221; a

joint trial of different offences committed by

different persons is solely governed by Section

223. In the present case, we are concerned with the

second scenario.

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30. Section 223 lays down various

conditions wherein different persons who have

committed different offences could be charged and

tried jointly. Amongst other things, it provides that

the persons alleged of committing different

offences, but as a part of the same transaction,

could be charged and tried jointly. It is contended

that the offences alleged upon the Respondent Nos.

1 and 2 pertained to two completely independent

acts and thus, they could not be considered to have

formed part of the same transaction. It has also

been contended that there was no allegation qua

commission of any offence jointly by the

Respondent Nos. 1 and 2. It is stated that the

incidents took place at different points of time and

there was no unity between them. The High Court

has accepted this factual position. The statement

of the victim reveals that allegations pertain to two

specific instances of rape along with a general

allegation that for 2-3 months, the Respondent

Nos. 1 and 2 continued to rape her. However, we

cannot lose sight of the fact that there is no direct

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allegation that the offences were committed

together by the Respondent Nos. 1 and 2 and on a

plain view of the matter, it is not a case wherein

the principles of common intention under Section

34 of IPC or conspiracy would be attracted. The

only question is whether the offences committed by

the Respondent Nos. 1 and 2 formed part of the

same transaction, so as to attract clause (d)

of Section 223 Cr.P.C., which permits joint trial of

persons accused of different offences committed in

the course of the same transaction.

31. In criminal law, the question whether

certain acts and omissions form part of the same

transaction often troubles the Courts. There is no

definition of “same transaction” in the Code and

more often than not, this determination is

contingent upon the peculiar facts and

circumstances of the case. To make it judicially

determinable, we have often applied the three tests

of “unity of purpose and design”, “proximity of

time or place” and “continuity of action”.

Reference may be drawn to the decision of this

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Crl.A(MD)No.120 of 2025

Court in State of Andhra Pradesh Vs.

Cheemalapati Ganeswara Rao and another6. Let

us have a look at some admitted facts. The victim

and the Respondent Nos. 1 and 2 were residing in

the same village, the house of respondent No. 2-

Manish Tiwari was situated one house away from

that of the victim, respondent No. 2-Manish had

taken the victim’s father to hospital a few days

prior to the incident, respondent No. 1-Hare Ram

Sah was running a coaching center adjacent to his

house and in the same vicinity, and both the

respondents threatened the victim of similar

consequences if she dared to disclose their acts to

anyone. Evidently, the nature of acts committed by

the Respondent Nos. 1 and 2 herein and

subsequent intimidation to keep the victim silent

were of a similar design. Further, there was a

certain proximity of time and place as the incidents

were committed within a continuous time-frame

and at different places in the same village.

However, it is also admitted that they never

committed the acts together and always acted

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Crl.A(MD)No.120 of 2025

separately. Therefore, there is no direct evidence of

commission of offences in the same transaction,

however, an inference may be drawn. Be that as it

may, we need not render a finding on this aspect

and we are not inclined to disturb the factual

finding of the High Court. For, even if the

conclusion of the High Court, that the joint trial

was conducted in violation of Section 223 Cr.P.C.,

is accepted, the Respondent Nos. 1 and 2 would

still have to further show that the joint trial had

caused prejudice to them and had occasioned a

failure of justice. Mere irregular conduct of a joint

or separate trial does not vitiate the trial as a

whole and the proof of failure of justice is sine qua

non for holding the trial as invalid.”

33. Thus, it is clear that it is required to see whether

both the accused ought to have been tried separately and

whether misjoinder of trials had caused prejudice to the

accused and resulted in failure of justice. Mere non-compliance

of the procedure contemplated under Section 223 does not ipso

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Crl.A(MD)No.120 of 2025

facto invalidate the trial, and the same cannot form the basis to

hold a finding as prejudicial or as a failure of justice. Further,

it is not the case of the appellant that the joint trial precluded

him from presenting a valid defence. It is also not the case that

separate evidence of the prosecution witnesses could have

made any difference to the end result. There is no explanation

as to how separate trials could have made any difference to the

outcome of the case, except causing harassment to the victim

by compelling her to face her offenders twice in the witness

box for explaining the same version. More particularly, when

the appellant adopted the cross-examination of prosecution

witnesses carried out by the first accused, there is absolutely no

prejudice caused to the appellant due to the joint trial. Thus,

this Court is of the considered view that the joint trial of the

appellant along with another accused did not cause any

prejudice and no case of failure of justice on account of said

irregularities appears to be made out.

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Crl.A(MD)No.120 of 2025

34. Further, the learned counsel for the appellant

vehemently contended that though both the appellants and the

another accused were charged for the same offence, they did

not commit any offence in the course of same transaction and

even then, both were framed same charges by the trial Court

and it had caused serious prejudice to them. In this regard, it is

relevant to extract the provision of Section 464(1) of Cr.P.C.,

“464. Effect of omission to frame, or

absence of, or error in, charge- (1) No

finding sentence or order by a Court of

competent jurisdiction shall be deemed

invalid merely on the ground that no

charge was framed or on the ground of any

error, omission or irregularity in the

charge including any misjoinder of charge,

unless, in the opinion of the Court of

appeal, confirmation or revision, a failure

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Crl.A(MD)No.120 of 2025

of justice has in fact been occasioned

thereby.

(2) If the Court of appeal, confirmation or revision

is of opinion that a failure of justice has in fact been

occasioned, it may

(a) in the case of an omission to frame a charge,

order that a charge be framed and that the trial be

recommenced from the point immediately after the

framing of the charge.

(b) in the case of an error, omission or irregularity

in the charge, direct a new trial to be had upon a

charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts

of the case are such that no valid charge could be

preferred against the accused in respect of the facts

proved, it shall quash the conviction.”

35. Thus, it is clear that mere discovery of an error,

irregularity or omission in the framing of charge does not ipso

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Crl.A(MD)No.120 of 2025

facto render the decision of the Court as invalid. In fact, even a

case of non-framing of charge is not liable to be discarded on

that ground alone. In order to vitiate the entire findings, what is

necessary is the failure of justice as a result of such error or

omission or irregularity. Therefore, it requires an answer as to

whether the defect in the framing of charge in the present case

has occasioned a failure of justice for the accused. Further,

whether it prevented the accused from having a fair trial or has

denied them any opportunity to present a valid defence before

the Trial Court.

36. In the above said circumstances, this Court felt

that the accused were not denied any opportunity and nothing

prevented them from having fair trial. In fact, after filing the

final report, both the accused were conscious about the

allegations. Further, entire charges are rightly framed as

against them and there was no confusion regarding their

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Crl.A(MD)No.120 of 2025

specific overt-act. Further, the error in question did not have

the effect of misleading the accused in any manner during the

trial. Though the learned counsel for the appellant vehemently

contended that similar charges caused prejudice, he failed to

substantiate the same as to how the accused were misled by the

charge or had suffered any failure of justice. Likewise, it was

further contended that the accused were questioned under

Section 313 Cr.P.C., with the same questionnaire. On perusal

of the questionnaire, it contains all the allegations levelled

against the accused as per the deposition of the witness.

Therefore, this Court finds no wrong in the questioning of the

accused before the trial Court. Accordingly, all the issues are

answered against the appellant and hence, this Court finds no

infirmity or illegality in the conviction and sentence imposed

by the trial Court against the appellant.

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Crl.A(MD)No.120 of 2025

37. In the result, this Criminal Appeal is dismissed

and the Judgment, dated 09.12.2024 made in S.C.No.280 of

2023, on the file of the learned Principal Special Court for

POCSO Act Cases, Theni, is confirmed.

[G.K.I.J.,] & [R.P.J.,]

10.02.2026

NCC :Yes/No

Index :Yes/No

am

To

1.The Inspector of Police,

All Women Police Station,

Theni, Theni District.

2.The Principal Special Court for POCSO Act Cases,

Theni.

3.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.

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Crl.A(MD)No.120 of 2025

G.K. ILANTHIRAIYAN, J.

AND

R. POORNIMA, J.

am

Pre-Delivery Judgment made in

Crl.A(MD)No.120 of 2025

10.02.2026

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