Research › Search › Judgment

Bombay High Court · body

2000 DIGILAW 660 (BOM)

Subhash Nagorao Junghare v. State of Maharashtra

2000-09-13

R.K.BATTA, S.G.MAHAJAN

body2000
JUDGMENT - R.K. BATTA, J.:---The appellant has been convicted for the murder of his wife by burning under section 302 of I.P.C. The appellant has been sentenced to suffer life imprisonment and a fine of Rs. 5,000/- and in default, to suffer rigorous imprisonment for one year more. The appellant challenges his conviction and sentence in this appeal. 2. To start with, the learned Counsel for the appellant drew our attention to the questions put to the accused under section 313 of Cri.P.C. and argued that long and complex questions have been put, which has resulted in serious prejudice to the appellant and, therefore, on this count alone, the judgement of the trial Court is required to be set aside. 3. On the other hand, the learned A.P.P., relying upon the judgment of the Division Bench of this Court in the case of (Shivlal Shankar Mahajan v. State of Maharashtra)1, reported in 1997(1) B. Cr.C. 259, argued that on account of the mistake committed by the trial Court in following proper procedure in examining the accused, the accused is not entitled to get acquitted, but this Court should direct the trial Court to properly examine the accused under section 313 of Cri.P.C. and thereafter dispose of the matter in accordance with law. 4. The object of section 313 of Cri.P.C. is to enable the accused to explain each and every circumstance appearing in the evidence against him and for that purpose, all incriminating circumstances are required to be put to the accused distinctly and separately. It would not be sufficient compliance to string together a long series of facts and ask the accused about the same. The accused must be questioned separately about each material incriminating circumstance, which is intended to be used against him. In other words, each material incriminating circumstance should be put in a simple short question separately so that the accused is able to understand and reply the same. It may be pointed out that the examination of the accused is not an empty formality. 5. In the case under consideration, we find that long, complex and complicated questions have been grouped together and some of the questions contained more than one question. Question No. 7 runs into two half pages wherein large number of questions have been grouped together. Even an intelligent person may not be able to comprehend and answer such question. 5. In the case under consideration, we find that long, complex and complicated questions have been grouped together and some of the questions contained more than one question. Question No. 7 runs into two half pages wherein large number of questions have been grouped together. Even an intelligent person may not be able to comprehend and answer such question. The contention of the learned Counsel for the appellant is that the questioning of the accused under section 313 of Cri.P.C. has caused serious prejudice to the appellant and on this count alone, he should be acquitted. We are not inclined to agree with the learned Counsel for the appellant. On account of the procedural lapse committed by the trial Court, interest of justice cannot be made a casualty. Justice is not only due to the accused, but the victim is equally entitled to get the justice. Therefore, it would be necessary that the matter be remanded to the trial Court for proper examination of the accused in the light of the observations made above on the subject. In almost similar situation, a Division Bench of this Court in the case of Shivlal Shankar Mahajan v. State of Maharashtra (supra) has taken the view that the accused should be examined afresh under section 313 of Cri.P.C., since the examination conducted by the trial Court was neither proper nor sufficient. The Division Bench has observed that for the mistake committed by the trial Court in following the procedural law, the Appellate Court should not allow failure of justice. The Court has to see that there is a fair trial not only with reference to the accused, but also with reference to the prosecution and more important with reference to the society and the victim. 6. In view of the above, we set aside the conviction and sentence imposed on the appellant vide impugned judgment dated 21st November, 1994 in Sessions Case No. 336 of 1993. We direct the trial Court to properly examine the accused under section 313 of Cri.P.C., afford an opportunity in case he desires to lead any defence evidence, hear the prosecution as well as the accused/his Counsel and thereafter pass a judgment afresh. This process shall be completed within a period of forty-five days from the date of appearance of the matter before the trial Court. This process shall be completed within a period of forty-five days from the date of appearance of the matter before the trial Court. The matter is fixed for appearance before the trial Court on 28th September, 2000. Record proceeding along with copy of the judgment be expeditiously forwarded to the trial Court. 7. The appeal is disposed of in above terms. -----