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2003 DIGILAW 82 (CAL)

Harka Bahadur Rai v. State of West Bengal

2003-02-25

Amit Talukdar, Pravendu Narayan Sinha

body2003
JUDGMENT P. K. Sinha, J. This appeal is directed against the judgment and order of conviction dated 8th July, 1994 passed by the learned Additional Sessions Judge, Jalpaiguri in Sessions Trial No. 11 of 1991 (Sessions Case No. 57 of 1991) whereby the appellant Harka Bahadur Rai was found guilty under section 302 of I.P.C. and was sentenced to suffer imprisonment for life and to pay fine of Rs. 2,000/- i.d. to suffer P I. for six months. 2. The prosecution case was started on the basis of written complaint or F.LR lodged by one Smt. Thula Rai, sister of deceased Bhakta Bahadur to the O.C., Banarhat P.S. and on the basis of such complaint the then O.C. P.W. 16 Jitendra Nath Roy started Banarhat P.S. Case No.1 dated 1.10.1988. The F.LR was written in Hindi by one Tek Bahadur on the basis of statement of Thula Rai and P.W. 16 received the F.LR. on 1.10.1988 at 21.05 hrs. It was mentioned in the F.I.R. by the informant that on that day at about 7.00 P.M. her elder brother Bhakta Bahadur reached at her house with bleeding injury near to his chest and stated to her that Harka Bahadur had assaulted him with khukri alias kukri. Her brother asked for water and uttering this he fell down on the ground. She brought water soon but taking little water he died there. She then raised hue and cry and hearing it Naina Singh Biswakarma, Tek Bahadur Chettri and others turned up there and saw the dead body of Bhakta Bahadur. It was learnt that her brother Bhakta Bahadur had gone to Debpara Bagan and on his very back he was assaulted by Harka Bahadur with a kukri. On the basis of such F.I.R. investigation was started into Banarhat P.S. Case No.1 dated 1.10.1988 and it subsequently ended in submission of charge-sheet against the appellant. He was tried by the learned Additional Sessions Judge, Jalpaiguri and was convicted under section 302 of I.P.C. and was sentenced to suffer imprisonment for life and also to pay fine of Rs. 2000/- in default to suffer RL for six months. 3. Challenging the said judgment and order of conviction the appellant preferred the instant appeal from Berhampur Central Jail. Mr. 2000/- in default to suffer RL for six months. 3. Challenging the said judgment and order of conviction the appellant preferred the instant appeal from Berhampur Central Jail. Mr. Asim Roy, appearing for the appellant as State Defence contended that P.W. 1 Smt. Thula Rai was the only witness relying on whose evidence the learned Judge convicted the appellant. He contended that the alleged statement of deceased Bhakta Bahadur to P.W. 1 before his death is not believable at all. The deceased was not in such a condition to make such a dying declaration before his death with such serious grievous cut injury on his neck. The evidence of P.W. 4, P.W.5, P.W.6, P.W.7 and P.W.8 to the effect that they heard from P.W.1 that at the time of death the deceased told her that he was assaulted by Harka Bahadur with kukri is not reliable and acceptable as P.W.1 in her evidence did not state that she reported this fact to these witnesses. There was no corroboration in view of provisions of section 157 of Evidence Act and, therefore, the evidence of these witnesses cannot be relied upon. He further contended that P.W. 17, the Doctor who held post-mortem (hereinafter called P.M.) examination on the dead body of Bhakta Bahadur Chettri did not state in his evidence that the injury found on the body of deceased was sufficient in the ordinary course of nature to cause death. Referring the decisions reported in 1999 SCC (Cr) 462 and 1977 Cr W 1602 he contended that absence of this statement in the evidence of Doctor makes it clear that it is a fit case to alter the conviction into under section 304 Part 1 of I.P.C. from conviction under section 302 of I.P.C. He contended that since his arrest the appellant is in custody and since trial and order of conviction he is in custody. Considering his long detention in custody the Court under these circumstances can convert the conviction into section 304 Part 1 of I.P.C. and considering his long detention he may be released. 4. He further contended that the learned Judge did not examine the appellant under section 313 of Criminal Procedure Code (hereinafter called Cr.P.C.) properly. Considering his long detention in custody the Court under these circumstances can convert the conviction into section 304 Part 1 of I.P.C. and considering his long detention he may be released. 4. He further contended that the learned Judge did not examine the appellant under section 313 of Criminal Procedure Code (hereinafter called Cr.P.C.) properly. Before examination no caution was given to the appellant about the nature and importance of examination under section 313, Cr.P.C. The appellant was also not asked as to whether he would enter into defence and would examine defence witnesses. It is clear that provisions of section 233, Cr.P.C were not followed by the learned Judge which was mandatory. But in the instant case after such long detention there cannot be remand of the case for holding 313, Cr.P.C. examination afresh and to proceed with the trial from the stage of examination under section 313, Cr.P.C. If the case is remanded to the learned Court below the appellant will be seriously prejudiced as after 16 years it is very difficult to find defence witness. Relying upon the decision of the Supreme Court reported in 1955 Cr LJ 1644 he contended that there cannot be remand of the case for examination of accused under section 313, Cr.P.C. as it would amount to denial of justice to the appellant and accordingly he contended that the accused should be released forthwith. 5. Mr. R. K. Ghosal, appearing for the respondent State contended that the learned Judge based his conviction relying upon the evidence of PWs. 1, 4, 5, 6, 7, 8 and 17. There is no ground to' disbelieve the dying declaration made by the deceased as before his death he would not implicate anyone falsely. P.W.! 7, the Doctor who held P.M. examination over the body of deceased mentioned in his report the nature of injury which he found on the body of deceased. 1, 4, 5, 6, 7, 8 and 17. There is no ground to' disbelieve the dying declaration made by the deceased as before his death he would not implicate anyone falsely. P.W.! 7, the Doctor who held P.M. examination over the body of deceased mentioned in his report the nature of injury which he found on the body of deceased. His commission to state that the injury was sufficient to cause death in the ordinary course of nature is not fatal at all and is not a ground to convert the conviction to under section 304 Part 1 of I.P.C. from conviction under section 302, of I.P.C. All the witnesses categorically stated that they saw cut injury near the right side neck of deceased and all of them stated that they learnt from P.W.1 that before death the deceased stated to P.W.1 that this appellant assaulted him by a khukri alias kukri. The conduct of the appellant requires mention here as it appears from record that after incident he fled away and he was arrested long afterwards on 15.11.1990. He further contended that if the learned Judge who held the trial did not examine the appellant properly under section 313, Cr.P.C. the case should be sent back on remand for examination of appellant under section 313, Cr.P.C. and this Court may fix a definite time within which examination of accused under section 313, Cr.P.C. would be completed and defence witness and evidence, if any, should be recorded and judgment afresh would be delivered. There is no ground at all to convert the conviction into under section 304 Part 1 to I.P.C. from section 302 of I.P.C. and there is also no ground at all to release the accused forthwith. Relying upon the decisions reported in 1987 Cr.LJ 555 and 1997 C Cr LR (Cal) 54 he contended that for the ends of justice the case may be sent back on remand for examination of accused under section 313, Cr.P.C. for direction to the learned Court below to conclude the trial from the stage of section 313, Cr.P.C. in accordance with law within a definite time. 6. We have duly considered the arguments advances by the learned Advocates of both the parties and we have gone through the materials on record and the decisions placed before us by the learned Advocates of both parties. 6. We have duly considered the arguments advances by the learned Advocates of both the parties and we have gone through the materials on record and the decisions placed before us by the learned Advocates of both parties. It is clear from the evidence and materials on record that deceased Bhakta Bahadur Chettri died on 1.10.1988. Evidence of P.W. 1 makes it clear that on 1.10.1988 at about 7 P.M. her elder brother Bhakta Bahadur came to her house with a cry "help help" and he told P.W. 1 to bring water and also told that Harka Bahadur Rai assaulted him with a kukri. P.W. 1 found cut injury on the neck of her elder brother and her elder brother died there instantly. Evidence of P.W. 17 Dr. Manoj Sarkar reveals that he held P.M. examination of Bhakta Bahadur Chettri and he found one incised injury over right side of neck just above right clavicle of size of 15 cm. X 8 cm. X thorasic cavity deep. On dissection he found haemothorax right side, right lung was collapsed. He opined that death was due to shock and haemorrhage following the said injuries which were ante mortem and homicidal in nature. He also opined that the injury No.1 i.e. the incised injury may be caused by any sharp cutting weapon and may be caused with the help of khukri. 7. We cannot ignore the fact that the deceased Bhakta Bahadur died instantly at the house of P.W. 1 Smt. Thula Rai after demanding water. Considering the evidence and materials on record we do not like to enter into merits of the appeal in detail as it has been noticed by us that examination of the appellant while he was facing trial as an accused under section 313 of the Cr.P.C. was not proper. As we are not entering discussion on merit of the appeal and Doctor's evidence regarding elements of section 302, I.P.C. or 304, I.P.C. the decisions placed by learned Advocate for appellant, requires no consideration at this stage. We have gone through the examination of accused Harka Bahadur Rai under section 313 of Cr.P.C. in his trial made by the learned Judge and we find that it was to some extent incomplete. 8. We have gone through the examination of accused Harka Bahadur Rai under section 313 of Cr.P.C. in his trial made by the learned Judge and we find that it was to some extent incomplete. 8. The manner in which the learned Additional Sessions Judge, Jalpaiguri held the examination of accused under section 313, Cr.P.C. in this case reveals that there is no beginning of examination of accused under section 313, Cr.P.C. nor there is end of examination of accused under section 313, Cr.P.C. It is clear that the learned Judge did not follow the provisions of section 313 of Cr.P.C. properly. The learned Judge did not warn and caution the accused appellant about the importance of examination under section 313 of Cr.P.C. and did not caution him that the answers given by him may be taken into consideration in the trial for or against him but he cannot be punished for refusing the answer. It appears that the learned Judge recorded the questions and answers of the accused in Bengali but the order sheet and the examination under section 313, Cr.P.C. did not reveal that the learned Judge before examination under section 313, Cr.P.C. ascertained from the accused whether he knows or follows Bengali. It transpires from the materials on record that the accused appellant belongs to Nepali community and being so it was the duty of the learned Judge to ascertain before examination under section 313 of Cr.P.C. that the accused follows or understands Bengali. This portion is missing from the examination of accused under section 313, Cr.P.C. and also order sheet and it transpires that the learned Judge failed to make it clear that the questions put by him to accused at the time of examination under section 313, Cr.P.C. was followed and understood by the accused properly. 9. We also find that the learned Judge did not ask the accused as to whether he would examine any defence witness or would produce any paper or document in support of his defence. The order sheet dated 6.6.1994 is completely silent as to whether the learned Judge gave opportunity to accused to enter into defence. Order dated 6.6.1994 shows that on that date learned Judge examined the accused under section 313 of Cr.P.C. and, thereafter, fixed 17.6.1994 for argument. The order sheet dated 6.6.1994 is completely silent as to whether the learned Judge gave opportunity to accused to enter into defence. Order dated 6.6.1994 shows that on that date learned Judge examined the accused under section 313 of Cr.P.C. and, thereafter, fixed 17.6.1994 for argument. It is clear, therefore, the learned Judge did not follow the provisions of section 233,of Cr.P.C. Provisions of section 233 of Cr.P.C. is to some extent mandatory and its omission is not mere irregularity. Section 233 of Cr.P.C. lays down that "where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof." If the accused declines to examine any defence witness or to produce any paper or document it is the duty of the learned Judge to record clearly that the accused declines to adduce evidence. The examination of accused under section 313 of Cr.P.C. in this case and the order sheet recorded by the learned Judge fails to reveal that the learned Judge gave opportunity to the accused to examine defence witness and accused declined to avail of that opportunity. Order sheet and examination of accused under section 313, Cr.P.C. is totally silent about defence witness and, therefore, we are of the view that the learned Judge did not follow the provisions of section 233 of the Cr.P.C. 10. We also find that the learned Judge did not ask the accused questions properly on the basis of evidence adduced by witnesses and did not put some important questions to him. Evidence of P.W. 14 Dinabandhu Saha, S.I. of Police and evidence of P.W. 15 M. K. Paul another S.I. of Police reveals the conduct of the accused appellant after the incident and the date when he was arrested. We find that learned Judge did not put any question to the accused regarding his conduct after the incident. 11. It now requires consideration whether the manner of examination of accused appellant under section 313 of the Code of Criminal Procedure as we have indicated above has caused injustice or prejudice to the appellant. In this connection the decision reported in AIR 1955 Cr LJ 1644 placed before us by the learned Advocate for the appellant for setting aside the sentence is not properly applicable. In this connection the decision reported in AIR 1955 Cr LJ 1644 placed before us by the learned Advocate for the appellant for setting aside the sentence is not properly applicable. In the case of Machander vs. State of Hyderabad, reported in 1955 Cr. LJ 1644, facts and circumstances were different. There was no direct evidence in the said case. In the reported case there was no evidence except for the confession and that too was made 13 days after the alleged murder and 8 days after his arrest. In the said case the Supreme Court observed that the error to examine under section 342 of Cr.P.C. was not mere technical but there was no ground for the police to wait for six days after arrest to get his confession recorded. In the instant case there is alleged dying declaration and the deceased expired in presence of P.W.1. Immediately, thereafter, hearing hue and cry of P.W. 1 other witnesses came and saw the dead body of deceased Bhakta Bahadur with deep cut injury on right side of neck. There was no confession after a gap of six or seven days nor there was disclosure of dying declaration• after a gap of few days. In this case the mistake or error of the learned Judge to ask the accused as to whether he would enter into defence resulted into failure to comply with the provisions of section 233 of Cr.P.C. Failure to comply with the provisions of section 233, Cr.P.C. though not irregular but at the same time is also not fatal so as to cause injustice or prejudice to accused or to vitiate the trial. 12. The Supreme Court in the case of State of Maharashtra vs. Sukhdeh Singh, reported in AIR 1992 SC 2001, laid down that the attention of the accused must be specifically invited to inculpatory pieces of evidences or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. In AIR 1951 SC 441 (Tara Singh vs. State of Punjab) and in several other decisions the Supreme Court has clearly emphasized ,the importance of examination of accused under section 313 of Cr.P.C. (section 342 of old Criminal Procedure Code). In AIR 1951 SC 441 (Tara Singh vs. State of Punjab) and in several other decisions the Supreme Court has clearly emphasized ,the importance of examination of accused under section 313 of Cr.P.C. (section 342 of old Criminal Procedure Code). It has been observed by the Supreme Court clearly that the accused must be questioned separately about each material circumstance which is intended to be used against him. The question' must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. It was also observed that every error or omission in this behalf does not vitiate a trial because errors of this type fall within category of curable irregularities. Considering questions the learned Judge put to the accused appellant in examination under section 313, Cr.P.C. we are of the opinion that the learned Judge did not put to the accused important incriminating circumstances properly and the manner of examination of accused appellant under section 313, Cr.P.C. was not in conformity with the guidelines laid down by the Supreme Court in the decisions mentioned above and other decisions which we have not quoted here to make the matter lengthy. 13. Another important matter came to our notice as we find that the learned Trial. Judge adopted a very casual approach and a mere formality regarding hearing the accused on sentence as provided in section 235(2) of Cr.P.C. It is clear to us that the learned Judge did not attach importance to the mandatory requirement of sub-section (2) of section 235 of Cr. PC. We find that after giving finding of guilt of the accused appellant the learned Trial Judge did not fix separate time regarding hearing him on sentence and the order sheet dated 8.7.1994 of the learned Judge reveals that nothing is mentioned in the order sheet about hearing the accused on the point of sentence. Order sheet only shows that judgment delivered in open Court and the accused Harka Bahadur Rai is found guilty of the offence under section 302, I.P.C. and is punished thereunder. He is sentenced to suffer imprisonment for life and pay a fine of Rs.2,000/- i.d. to suffer R.I. for six months. Order sheet only shows that judgment delivered in open Court and the accused Harka Bahadur Rai is found guilty of the offence under section 302, I.P.C. and is punished thereunder. He is sentenced to suffer imprisonment for life and pay a fine of Rs.2,000/- i.d. to suffer R.I. for six months. In the body of the judgment the learned Judge used just one sentence which is as follows :- "Heard the accused person for the sentence to be passed against him to which he prays for lenient view to be taken against him. I have considered his statement." 14. We are of the view that learned Judge clearly did not follow the mandatory provisions of section 235(2) of Cr.P.C. and we doubt whether the learned Trial Judge at all heard the accused appellant regarding sentence. It is desirable that after pronouncing finding of guilt the learned Trial Court should give reasonable time to the accused to make up his mind so as to give answer to the learned Judge on the point of sentence. In the instant case we find that learned Additional Sessions Judge did not drive at all any time to the accused to make up his mind after the shock he received hearing finding of guilt and to give proper answer to the learned Judge on the point of sentence. Awarding sentence at same breadth and at same time immediately after pronouncing finding of guilty is deprecated. Omission to hear the accused on sentence amounts to denial of valuable right to accused as under section 235(2) Cr.P.C. the accused has a right to make his submission before the learned Judge regarding his antecedents, social and economic background and other circumstances etc. on the point of sentence. Settled law and provisions of section 235(2) of Cr.P.C. desires that sufficient time must be given to the accused to hear him on the point of sentence. 15. on the point of sentence. Settled law and provisions of section 235(2) of Cr.P.C. desires that sufficient time must be given to the accused to hear him on the point of sentence. 15. The Supreme Court in the case of Rajendra Prasad vs. State of U.P., reported in AIR 1979 SC 916 and Allauddin Mian vs. State of Bihar, reported in AIR 1989 SC 1456 : 1989 C Cr LR (SC) 133, laid down guidelines to be followed by the Trial Court attaching importance of the mandatory provisions of section 235(2) of Cr.P.C. In Allauddin Mian's case (supra) it was observed by the Supreme Court that "It is clearly mandatory and should not be treated as a mere formality. In a case of life or death as in the case of punishment for murder, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the Court, the Court's decision on the sentence would be vulnerable ...............Where the trial Court treated the requirement for giving of opportunity to accused as a mere formality in that after recording finding of guilty on charge of murder, on the same day before the accused could absorb and overcome the shock of conviction were asked if they had anything to say on the question of sentence and immediately thereafter pronounced the decision imposing the death penalty the trial Judge must be deemed not to have attached sufficient importance to the mandatory requirement of sub-section (2) of section 235...........We think as a general rule the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender." All the learned Sessions Judges, Additional Sessions Judges and Assistant. Sessions Judges who are dealing with trial of sessions cases should follow the provisions of section 235(2) of Cr.P.C. and the guidelines enunciated by the Supreme Court in the aforesaid decisions. 16. Sessions Judges who are dealing with trial of sessions cases should follow the provisions of section 235(2) of Cr.P.C. and the guidelines enunciated by the Supreme Court in the aforesaid decisions. 16. In our opinion failure of the learned Trial Judge to attach importance to the mandatory provisions of section 235(2) of Cr.P.C. is another ground for returning the matter to the Trial Court for proceeding with the trial from the stage of examination of accused appellant afresh under section 313 of Cr.P.C. 17. We, therefore, set aside the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Jalpaiguri in Sessions Trial No. 11 of 1991 (Sessions Case No. 57 of 1991) and direct the learned Trial Court to examine the accused appellant afresh under section 313 of CLP.C. following the principles and guidelines laid down by the Supreme Court and conclude the trial in accordance with law preferably within three months from the date of receipt of the records from this Court. As we have set aside the judgment and order of conviction and sentence the accused appellant shall be released forthwith. Learned Trial Judge shall consider question of bail of the accused at the time of trial on remand in view of our aforesaid findings. Learned Trial Judge shall also take steps for production of the accused before him at the earliest issuing necessary instructions to all the authorities and persons concerned. The learned Registrar General is requested to forward a copy of this judgment to Inspector General of Prisons, West Bengal at Writers' Buildings for onward communication to the convict/appellant in the particular correctional home where he is lodged at present. 18. Let the records go down to the Trial Court immediately so as to reach the Trial Court not later than a fortnight from date. The Criminal Appeal is thus allowed and disposed of in the manner as indicated above. Criminal appeal allowed.