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2001 DIGILAW 678 (BOM)

Raju Sureshsingh Thakur v. State of Maharashtra

2001-08-13

J.N.PATEL, S.K.SHAH

body2001
JUDGMENT - J.N. PATEL, J.:---In Session Trial No. 127/1995, the trial of the appellant/accused was taken up by the 3rd Additional Sessions Judge, Nagpur. The appellant was charged for having committed murder of one Girdhari Bhagwan Kamble, on 10-11-1994 at about 12.00 hrs., at Manas Chawk, near S.T. Bus Stop, Sitabuldi, Nagpur by means of Katyar. On conclusion of the trial, the appellant/accused was found guilty of having committed offence under section 302 of the Indian Penal Code and, therefore, was convicted and sentenced to suffer imprisonment for life by judgment and order, dated 3-11-1995, passed by the 4th Additional Sessions Judge, Nagpur. It is this judgment and order which is the matter of challenge before us. 2. Mr. M.R. Daga, learned Counsel appearing for the appellant, submitted that before going into the merits of the case, the Court should consider his preliminary ground, which goes to the root of the matter and that is that the learned trial Court has failed to examine the appellant/accused as required under section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as 'the Code') which has greatly prejudiced this case and, therefore, it vitiates the conviction and sentence and, according to Mr. Daga, the appellant/accused deserves to be acquitted, or in the alternative, the case should be remanded to the trial Court for fresh consideration and the trial Court should be directed to conduct fresh examination of the appellant/accused as required under section 313 of the Code and then decide the case in accordance with law. 3. Mr. Daga submitted that the trial was taken up on 3-8-1995 by the then, Presiding Officer, i.e. the 3rd Additional Sessions Judge, Nagpur, by framing a charge vide Exhibit 4. After recording of evidence and conclusion of the trial, Mr. Sadavarte, 3rd Additional Sessions Judge, Nagpur, examined the accused under section 313 of the Code. Thereafter, it appears that the case was transferred to the file of Shri S. Bhalchandra, 4th Additional Sessions Judge, Nagpur, who herd the arguments in the matter and passed the impugned judgment and order. 4. Mr. Daga submitted that if this Court examine the form of questions put to the appellant/accused in his examination under section 313 of the Code, we will be satisfied that such examination of the appellant/accused has greatly prejudiced his case. By way of illustration, Mr. 4. Mr. Daga submitted that if this Court examine the form of questions put to the appellant/accused in his examination under section 313 of the Code, we will be satisfied that such examination of the appellant/accused has greatly prejudiced his case. By way of illustration, Mr. Daga has drawn the attention of this Court to question Nos. 1, 2, 6 and 12. According to Mr. Daga, these questions are composite and complex, because of which the appellant/accused was not able to answer them correctly and could not even offer any explanation, and since the object of such examination of the appellant/accused by the Court is to enable the accused to explain any of the circumstances arising out of the evidence against him, such questions have deprived the appellant/accused of the opportunity to meet the case of the prosecution before the trial Court and, therefore, the matter deserves to be dealt with fresh. 5. Mr. Daga has placed reliance on the case of (Subhash Nagorao Junghare v. State of Maharashtra)1, 2001(Supp. 2) Bom.C.R. (N.B.)284 : 2000(4) Maharashtra Law Journal 448, and submits that this Court has already taken a view that long, complex and complicated questions grouped together would, itself, cause prejudice to the accused and, therefore, the matter deserves to be remanded back as done in the case of Subhash Junghare (supra). Mr. Daga submits that the decision rendered by this Court in the case of Subhash Junghare (supra), as regards the proper examination of the accused under section 313 of the Code, coincidentally, happened to be of the same Additional Sessions Judge as in the present case. 6. Mrs. Dangre, learned A.P.P., submitted that though the form of the questions can be said to be composite and complex, but the appellant/accused should show that it has caused him prejudice and further he is not able to demonstrate before this Court that he has objected to such defective examination under section 313 of the Code, before the trial Court and, therefore, now, at the appellate stage, he (appellant/accused) cannot take this as a ground and submit that it has caused him prejudice and it vitiates his conviction and sentence. Therefore, Mrs. Dangre strongly objects to the prayer of the learned Counsel for the appellant/accused that the appellant/accused deserves to be acquitted of the charge of murder. 7. Mrs. Therefore, Mrs. Dangre strongly objects to the prayer of the learned Counsel for the appellant/accused that the appellant/accused deserves to be acquitted of the charge of murder. 7. Mrs. Dangre, learned A.P.P. submitted that she has no quarrel over the authority cited by Mr. Daga and it is true that in case of the same Judge, i.e. Mr. K.S. Sadavarte, who was at the relevant time functioning as 3rd Additional Sessions Judge, Nagpur, two of the cases tried by him were required to be remanded back for fresh trial from the stage of examination of the accused, as this Court found that it was not done in accordance with the object and purpose for which examination of the accused is required under section 313 of the Code. 8. It is submitted by the learned A.P.P. that if this Court finds that the appellant/accused has been prejudiced, then this Court may direct the trial Court to properly examine the appellant/accused under section 313 of the Code and thereafter dispose of the matter, in accordance with law. 9. We have given our anxious consideration to the submissions made by Mr. Daga, learned Counsel appearing for the appellant/accused, and with the assistance of the learned Counsel for the appellant and the learned A.P.P. have gone through the examination of the appellant/accused conducted by Mr. K.S. Sadavarte, 3rd Additional Sessions Judge, Nagpur, and we have no hesitation to hold that the learned Additional Sessions Judge has dealt with the matter in a casual way, without understanding the importance of the examination of the accused under section 313 of the Code. The questions as framed and put to the appellant/accused are unduly detailed and numerous questions are clubbed into one. We, therefore, find that the learned Counsel for the appellant/accused is justified in agitating the issue of improper examination of the appellant/accused under section 313 of the Code, on the basis of questions framed and put to him at the conclusion of his trial. The nature of questions as framed made it difficult for the appellant/accused to understand them so as to give proper reply or explanation in respect of the incriminating material put to him in these questions. The nature of questions as framed made it difficult for the appellant/accused to understand them so as to give proper reply or explanation in respect of the incriminating material put to him in these questions. The nature of questions is so omnibus that it has confused and misled the appellant/accused and, therefore, we are in agreement with the submission of the learned Counsel for the appellant/accused that it has greatly prejudiced the appellant/accused and has deprived the trial Court from taking into consideration the answers given by him in order to appreciate the case in its proper perspective. 10. It is true that the Counsel appearing for the appellant accused before the trial Court did not object to the nature of questions which were being put to the appellant accused by it, while examining him under section 313 of the Code, nor the learned A.P.P. conducting the case on behalf of the State also felt it necessary to draw the attention of the trial Court to such questions being formulated for examining the accused and, of course, the learned Additional Sessions Judge was oblivious of his responsibility. But that should not result in any miscarriage of justice. 11. The object of section 313 of the Code is to establish a direct dialogue between the Court and the accused, brushing aside all other parties, such as Counsel, witnesses and the like. Its only object as required in sub-section (1) is to give opportunity to the accused to "personally explain any circumstances appearing in the evidence against him", and, therefore, if a point in the evidence is important against the accused and the conviction is intended to be passed upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining, if he so desires, and it is an underlying principle that if the accused has not been given an opportunity to explain an adverse circumstance, it cannot be used as evidence against him. 12. In the present case, as we have already held, the manner in which the learned Additional Sessions Judge framed questions, would make it difficult even for the lawyer of the accused to understand and offer an explanation to the adverse circumstance, which has been put to the appellant/accused. 12. In the present case, as we have already held, the manner in which the learned Additional Sessions Judge framed questions, would make it difficult even for the lawyer of the accused to understand and offer an explanation to the adverse circumstance, which has been put to the appellant/accused. Normally it is a practice that the appellant/accused offers his explanation to the incriminating material to be put to him in his examination, by the Court by giving short answers like, "It is true", "It is false" and "I do not know", or at times may offer some explanation and may also make a statement in support of his defence. 13. The importance of explanation of the accused under section 313 of the Code can also be gathered from the fact that even in a given case, where the accused, in his examination under section 313 of the Code, admits a particular fact disclosed in the prosecution evidence, or admits that he has committed the act, he can be held guilty of the offence charged against him and, therefore, it is all the more important for the trial Court to confirm to the requirements of procedural law, while examining the accused under section 313 of the Code. The basic principles, which are required to be observed in examining the accused under this section can be broadly set out, such as: (i) The Court must place before the accused the facts and circumstances appearing against him, in order to furnish him an opportunity of showing his innocence by offering his explanation to these facts and circumstances; (ii) The questions must be fair and couched in a form and language which even an ignorant or illiterate person, or one who is faultier and confused, will be able to appreciate and understand; (iii) Misleading questions should not be asked; (iv) The accused must be questioned separately about each material circumstance, which is intended to be used against him, for example, the fact that he had absconded, which he could have explained. Hence, it is not sufficient compliance with the section, to generally ask the accused that, having heard the prosecution evidence, what he has to say about it; or to string together a long series of facts and ask the accused, what he has to say about them; as is done in the present case. Hence, it is not sufficient compliance with the section, to generally ask the accused that, having heard the prosecution evidence, what he has to say about it; or to string together a long series of facts and ask the accused, what he has to say about them; as is done in the present case. In order to give an illustration, it would suffice, if the attention of the accused is drawn to the evidence of the prosecution witnesses in specific part, and then he is asked, "Have you got anything to say about the evidence of the witness?", provided attention of the accused to be drawn on the material circumstances which are intended to be used against him. 14. There is another aspect, which has to be kept in mind while examining the accused under section 313 of the Code, and that is, that section 313 makes it completely voluntary for the accused to answer or not to answer the question put to him by the Court. Under this section, if he refuses to answer or gives false answers, he cannot be made liable to any punishment. If, however, he does answer, his answers may be taken into consideration. 15. We, therefore, accede to the request made by Mr. Daga, learned Counsel appearing for the appellant/accused, as we are satisfied that the manner in which the trial Court has examined the appellant/accused under section 313 of the Code has caused him prejudice. Therefore, we quash and set aside the conviction and sentence passed against the appellant accused by the impugned judgment and order and remand the matter to the trial Court for fresh consideration from the stage of examining the appellant/accused under section 313 of the Code. We direct the Sessions Judge, Nagpur, to take up the trial of the appellant/accused, frame questions under section 313 of the Code, examine the appellant/accused as required and pronounce its judgment in the case on merits and in accordance with law. The whole exercise to be completed within six weeks from the date of communication of our judgment. The appeal stands disposed of, accordingly. Order accordingly. -----