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2002 DIGILAW 249 (GAU)

Makhan Ali and Ors. v. State of Assam

2002-06-07

I.A.ANSARI, J.N.SARMA

body2002
I.A. ANSARI, J.— This appeal has been preferred against the judgment and order, dated 18.4.2001, passed by learned Sessions Judge, Nalbari, in Sessions Case No. 32/99 convicting the accused-appellants under Section 302 6f I.P.C. and sentencing each of them to suffer imprisonment for Life and to pay fine of Rs. 5,0007- (five thousand) and in default, to suffer Rigorous Imprisonment for a further period of 6 (six) months. 2. The case against appellants, as unfolded at the trial, may, in brief, be stated as follows :- On 28.05.97, at about 6 A.M., when Abdul Hussain, Tami Ali, Bhebla Ali and Mohibur Ali were proceeding to-wards their paddy field for the purpose of ploughing the same, accused persons, namely. Mantaj Ali, Nur Hussain Ali, Mafil Ali, Majib Ali, Juhur Ali, Mohammad Ali, Siraj Ali, Oaj Ali, Makhan Ali. Bapun Ali, Khabir Ali, Atar Ali, Mohammad Ali, Akhar Ali and Soriful Ali, who were all biding inside an abandoned homestead land armed with weapons, came out of the same and attacked the said four persons. In the assault, which so took place, Bhebla Ali and Tamij Ali got seriously injured and they were taken to Nalbari Civil Hospital. Abdul Hussain aforementioned, then, lodged a written ejahar, on 28.05.97 itself, and treating the same as F.I.R., Nalbari Police Station Case No. 123/97 Under Sections 341/326/34 1.P.C. was registered against the 15 (fifteen) accused aforementioned. As Bhebla Ali succumbed to his injuries at the hospital, the said case was registered wider Section 302 I.P.C. also. ; 3. After usual investigation, police submitted charge sheet Under Sections 302/341/326/34 I.P.C. against 14 (fourteen) accused persons, namely, Mantaj Ali, Nur Hussain Ali, Mahfil Ali, Majib Ali, Mohammad Ali, Siraj Ali, Owaj Ali, Makhan Ali, Bapun Ali, Atar Ali. Mohammad Ali, Akher Ali, Soriful Ali and Khairab Ali showing the latter three persons as absconder. 4. During trial, when a charge framed Under Section 302 I.P.C. was explained to the accused-appellants and 11 (eleven) others, all pleaded not guilty thereto. 5. In all, prosecution examined 8 (eight) witnesses including Investigating Officer. All eleven accused aforementioned were examined under Section 313 Cr.P.C. In their examination aforementioned, accused denied that they had committed offences alleged to have been committed by them, case of the defence being that of total denial with a further plea that accused-appellants Siraj had been assaulted by the complainant's party. All eleven accused aforementioned were examined under Section 313 Cr.P.C. In their examination aforementioned, accused denied that they had committed offences alleged to have been committed by them, case of the defence being that of total denial with a further plea that accused-appellants Siraj had been assaulted by the complainant's party. Defence also adduced evidence by examining one witness. 6. Upon conclusion of the trial, learned trial Court pronounced its judgment holding the appellants guilty of offence under Section 302 I.P.C., but the remaining accused were acquitted. The appellants were accordingly convicted under Section 302 I.P.C. and sentence was passed against them as hereinabove mentioned. Hence, this appeal. 7. The moot point, which falls for determination in the present appeal, is this: whether the finding of guilt arrived at by the learned trial Court is justified on the basis of the evidence on record and law relevant thereto? 8. We have carefully perused the relevant records including the impugned judgment and order. We have heard Mr. S. Ali, learned Senior Advocate appearing on behalf of the appellants, and Mr. P. Bora, learned Public Prosecutor, Assam. 9. It has been submitted, on behalf of the appellants, that the evidence on record was grossly inadequate to hold the appellants guilty of the charge framed against them. It is also submitted, on behalf of the appellants, that the trial Court wholly misread the evidence on record. It is further submitted, on behalf of the appellants, that since the charge against the appellants was under Section 302 I.P.C. simpliciter without the aid of Section 34 or 149 I.P.C., it was the duty of the prosecution to prove as to who had dealt the blow or blows with what weapon/weapons which proved fatal for Bhebla Ali and caused his death. Since, submits Mr. Ali, there is no clear and clinching evidence on record to show as to who actually had caused Bhebla's death. None of the appellants in such circumstances, points out Mr. Ali could have been convicted under Section 302 I.P.C. 10. Since, submits Mr. Ali, there is no clear and clinching evidence on record to show as to who actually had caused Bhebla's death. None of the appellants in such circumstances, points out Mr. Ali could have been convicted under Section 302 I.P.C. 10. Controverting the above submissions made on behalf of the appellants, learned Public prosecutor has submitted that learned trial court was wholly justified in convicting the appellants for the offence of murder inasmuch as evidence on record clearly established that the appellants were responsible for causing death of Bhebla Ali and a mere defect in framing of appropriate charge by the Court may not, in such a serious case, be possibly made a ground for acquitting the appellants. 11. Having heard rival submissions made before us on behalf of the appellants and upon perusing the case record, what attracts our eyes, most prominently, is that upon investigation of the case, police submitted charge- sheet against the appellants and some others Under Sections 302/341/326/34 I.P.C. font he obvious reasons that the appellants, according to the materials collected during investigation, had, in furtherance of their common intention restrained the movements of Bhebla Ali, Tamij Ali, Abdul Hussain and Mohibur Rahman, assaulted them with various weapons causing injuries to Bhebla Ali and Tamij Ali, which eventually resulted into Bhebla Ali's death. However, for reasons best known to the learned trial court, it framed a charge under Section 302 I.P.C. simpliciter against the appellants and four others. 12. By virtue of the above charge framed against the appellants, the appellant were automatically discharged from the responsibility, if any, of causing injuries to Tamij Ali and they were required to answer only the charge of having committed offence of murder by causing death of Bhebla Ali. 13. In the face of the above charge, the appellants could have been held liable for their own proven individual act/acts and they could not have been made liable for the act/acts of others inasmuch as the appellants had not been charged under the enabling provisions of Section 34 or Section 149 IPC. 14. Situated thus, only that / those appellant / appellants could have been held guilty of causing death of Bhebla Ali, who had dealt the fatal blow on Bhebla. 14. Situated thus, only that / those appellant / appellants could have been held guilty of causing death of Bhebla Ali, who had dealt the fatal blow on Bhebla. In a case of present nature, when more than one person have allegedly committed offence of murder, the, charge against the accused, in accordance; with what the materials on record reveal, should be under Section 302 Il?£ read with either Section 34 or Section 149 IPC, whichever is applicable, because, if the same is not done, then, even if a murder takes place, none of the accused can be held guilty unless he/she is proven to have caused the fatal blow, which resulted into the death of the deceased. 15. Because of what has been discussed above, we find that unless the charge is suitably amended, serious prejudice will be caused to the interest of the prosecution resulting into miscarriage of justice. At the same time, if the appellants are, now, held guilty with the aid of Section 34 or Section 149 IPC without proper charge/charges having been framed against them, serious injustice will be caused to the appellants, which will not be in the interest 6f justice. 16. We are, therefore, of the firm view that the conviction of the appellants and the Sentence passed against them deserve to be set aside and the matter needs to be remanded to the learned trial Court for framing appropriate charge against the appellants and, then, dispose of the same in accordance with law. 17. There is, we find, yet another important reason, which does not permit us to appreciate the evidence on record effectively. We have carefully perused the examination of the accused-appellants under Section 313 Cr.P.C. by the learned trial Court and find that the said examination has been most perfunctorily done inasmuch as the learned trial Court relied upon a number of incriminating circumstances, appearing from the evidence on record, against the accused-appellants, but it did not put to the accused-appellants many of these incriminating circumstances appearing against them and upon which the learned trial Court relied to hold the accused-appellants guilty of the Charge aforementioned, such as, the medical evidence on record and material evidence o£ other witnesses. We may refer, at this stage, to the decision in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra, AIR 1984 SC 1662. We may refer, at this stage, to the decision in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra, AIR 1984 SC 1662. wherein their Lordships have succinctly laid down the law on the above subject as follows: As these circumstances were not put to the appellants in their statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellants did not have any chance to explain them. This has been consistently held by this Court as far back as 1953, wherein the case of Hata Singh Bhagat v. State of Madhya Bharat, AIR 1953 SC 468 , this Court held that any circumstances in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 of Section 313, of the Criminal Procedure Code, the same cannot be used against him ............ It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances, which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration." (Emphasis is supplied by us) 18. Even in the case of State of Maharashtra Vs. Sukhdeo Singh and Another, AIR 1992 SC 2100 , their Lordships have observed as follows : ...... The trial judge is not expected, before he examined the accused under section 313 of the Code, to shift the evidence regarding any incriminating material to determine whether or not to examine the accused as that material. To do so would be to prejudge the evidence without nearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon...................... (Emphasis is added by us) 19. To do so would be to prejudge the evidence without nearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon...................... (Emphasis is added by us) 19. It is, now, settled beyond dispute by a catena of judicial pronouncements that every circumstance, on which a trial Court relies to hold an accused guilty, must be put to the accused person and his answer sought thereto. The very purpose of Section 313 Cr.P.C. will stand defeated if a trial Court, without asking for explanation of an accused on the circumstances, which appear to it to be incriminating, bases its conviction on such circumstances. It is in this view of the matter that the examination of an accused person under Section 313 Cr.P.C. is a solemn act of a trial Court and it cannot, and must not, be treated as an empty formality. 20. In the case at hand, the incriminating circumstances spoken to by each prosecution witness, on which the learned trial Court has relied upon, ought to have been put to the accused-appellants, when they were under Examination under Section 313(l)(b) of the Cr.P.C: and the same having not been done, learned trial Court ought not to have based its findings on such incriminating pieces of evidence. In fact, the learned trial Court had, it appears to us, put to the accused-appellants, in the instant case, not even the sum-total of the prosecution's case, which, in our considered view/opinion, does not meet the requirements of law. 21. Situated thus, one has no option but to conclude that if the accused-appellants are not examined under Section 313(1) (b) of the Cr.P.C., as warranted by law it will deny to the accused-appellants a valuable right vested in them by law to properly and effectively project their defence. At the same time, prosecution, to our mind, cannot be made to suffer solely for the lapse on the part of the learned trial Court in properly examining the accused-appellants under Section 313(l)(b) of the Cr.P.C. We are, therefore, clearly of the view that this case needs to be remanded to the learned trial Court. 22. At the same time, prosecution, to our mind, cannot be made to suffer solely for the lapse on the part of the learned trial Court in properly examining the accused-appellants under Section 313(l)(b) of the Cr.P.C. We are, therefore, clearly of the view that this case needs to be remanded to the learned trial Court. 22. Ordinarily, we would have reappreciated the entire evidence tin record to arrive at a legally correct finding, but in the instant case, as we have found that appropriate charge against the appellants had not been framed and the examination of the accused-appellants under Section 313(l)(b) of the Cr.P.C. was not in accordance with the requirements of law as contained in that behalf and that the case needs to be remanded back to the learned Court below for further examination of the accused appellants in keeping with requirements of Section 313(l)(b) of the Cr.P.C., we do not wish to enter into the merit of the various grounds on which the said judgment has been impugned in this appeal by the accused- appellants. We do not even remotely wish to make any observations about the evidence on record so that the learned trial Court does not get fettered by any of the observations of this Court on any piece of evidence on record and it may feel free to come to its own independent finding after appropriate examination of the accused-appellants. 23. In the result, and for the reasons discussed above, this appeal partly succeeds. The impugned Judgment and order shall stand set aside and the case is remanded to the learned Court for framing appropriate charge against the appellant(s) and, then, after giving the defence an effective opportunity of defending themselves by recalling, if necessary, prosecution witnesses for further cross-examination and also after appropriate examination of the appellants under Section 313 Cr.P.C., learned trial Court shall dispose, of the case within six months from the date of appearance. 24. Let the appellants be set at liberty forthwith unless they are required to be detained in connection with any other case. The appellants are also directed to appear before the trial Court on 29.6.2002. The necessity of further detention of the appellants during the course of trial shall be decided by trial Court by applying mind. 25. 24. Let the appellants be set at liberty forthwith unless they are required to be detained in connection with any other case. The appellants are also directed to appear before the trial Court on 29.6.2002. The necessity of further detention of the appellants during the course of trial shall be decided by trial Court by applying mind. 25. Before parting with this appeal, we must express our feelings of deep distress and utter dis-satisfaction for the way in which Mr. B.C. Das, learned Sessions Judge, Nalbari, dealt with the case in framing the charge against the accused under Section 302 IPC simpliciter and the slipshod way in which Mr. J. Bora, District and Sessions Judge, Nalbari, recorded the evidence and pronounced the judgment without bothering to ensure that no prejudice for absence of appropriate charge be caused to either side. 26. Let copies of the judgment be served on the officers aforementioned, wherever they may be posted. 27. Send back the LCR with a copy of this judgment and order.