(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.)

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 6th 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 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.

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-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 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 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 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.

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 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.

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 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 and Section 376-AB of IPC. The charges framed by the Trial Court are as follows:-







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 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 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. 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:-





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 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 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.

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 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 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 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 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 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 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 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.

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 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 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 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 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 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, 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.”

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 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 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 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;

                          (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 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 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. 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 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 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 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 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 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) 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 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 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 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.

                          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 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 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 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 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.

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 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 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 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.

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.