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2005 DIGILAW 707 (AP)

Tata Ravi v. State Of A. P.

2005-08-03

K.C.BHANU

body2005
( 1 ) I have the advantage of perusing the judgments prepared by the learned Judges. After going through the judgments, one learned judge came to the conclusion that the contents of two dying declarations marked as Exs. A-20 and A-29 cannot be relied upon since the contents of those documents have not been put to accused. Therefore, due to lapse of seven years, it would not be just to remand the case and accordingly, the conviction and sentence imposed against Accused No. 1 is set aside. Another learned Judge was of the opinion that it was a fit case to remand the matter to the trial Court to enable the Court to put relevant questions to the Accused Nos. 1 to 5, touching on the dying declarations exs. A-20 and A-29. ( 2 ) IN view of the difference of opinion with regard to the defective examination of the accused, that is to say not putting the contents of two dying declarations, the matter has been referred to the third judge, that is why it is came up before this court. ( 3 ) LEARNED Counsel appearing for the appellants contends that under Section 313 cr. P. C. , the incriminating circumstances have to be put to the accused to enable them to give an explanation and if the contents of a document have not been put to the accused, the same cannot be used against the accused, and therefore, except the two dying declarations, there is no other evidence. Hence, he prays to acquit the accused. ( 4 ) ON the other hand, the learned public Prosecutor contended that mere non questioning of the accused with regard to the incriminating material would itself does not vitiate the conviction and sentence, unless a failure of justice had occasioned due to non-putting the relevant questions and no prejudice would be caused, if the matter is remanded to the trial Court for proper examination of the accused, and therefore, he prays to remand the matter to the trail court for proper examination. ( 5 ) IT is pertinent to refer to a decision reported in Kottaya v. Emperor, AIR (34) 1947 PC 67, wherein it was held: ". . . . . . . . . ( 5 ) IT is pertinent to refer to a decision reported in Kottaya v. Emperor, AIR (34) 1947 PC 67, wherein it was held: ". . . . . . . . . but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in india between an illegality and an irregularity is one of degree rather than of kind. " ( 6 ) IN this case, it is not the case of the accused that the trial of the case has been conducted substantially by following the procedure under the Cr. P. C. But, there is an irregularity or omission on the part of the learned Sessions Judge in not putting the question with regard to the contents of exs. A-20 and A-29. There cannot be any dispute that incriminating circumstances, which are not put to the accused, cannot be used against the accused. There is no dispute about the said fact, because it is well settled that the circumstances in the prosecution evidence, which were not put to the accused, cannot be used against him and such evidence is to be eschewed from the consideration. ( 7 ) THE questioning of the accused under Section 313 Cr. P. C. is done to enable him to give an opportunity to explain any circumstances, which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in the presence of the accused and is given full opportunity to cross-examine each and every witness examined on the prosecution side. It is also not disputed that they are given the copies of all the documents, which are sought to be relied upon by the prosecution. If there are any circumstances in the evidence, which are adverse to the accused and his explanation would help the Court in evaluating the evidence properly, the court should bring the same to the notice of the accused to enable them to give any explanation or answers for such adverse circumstances in the evidence. If there are any circumstances in the evidence, which are adverse to the accused and his explanation would help the Court in evaluating the evidence properly, the court should bring the same to the notice of the accused to enable them to give any explanation or answers for such adverse circumstances in the evidence. There shall not be failure of justice on account of an unfair trial. ( 8 ) WHETHER such an improper examination would vitiate the entire trial, thereby the accused is entitled for an acquittal; it is pertinent to refer to some of the decisions of the Apex Court in this regard. ( 9 ) IN the decision reported in Bijjoy chand Potra v. The State, 1952 0 SCR 202 , it was held: "the facts of the case being free from any complications and the points in issue being simple, we find it difficult to hold that the examination of the appellant in this particular case was not adequate. To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by Section 342 of the Criminal procedure Code, but he must also show that such examination has materially prejudiced him. " ( 10 ) IN Kedar Nath v. State of West bengal, AIR 1954 SC 660 , it was held: "the lacuna, however, is that there has been no questioning under Section 342 of the criminal Procedure Code of the two appellants, Kedar Nath Bajoria and Vaid on this part of the case, as regards any of these adverse circumstances which form the basis of the conclusion of the Courts below on this claim. There is a complete lack of any reference to these matters in the questions put to either of the appellants under Section 342, Cr. P. C. This undoubtedly is a serious irregularity and cannot be lightly ignored. If prejudice was thereby caused, such an irregularity would entail retrial in the circumstances of a case like this. But before a retrial can be ordered the Court must be clearly satisfied about prejudice having been caused. P. C. This undoubtedly is a serious irregularity and cannot be lightly ignored. If prejudice was thereby caused, such an irregularity would entail retrial in the circumstances of a case like this. But before a retrial can be ordered the Court must be clearly satisfied about prejudice having been caused. " ( 11 ) IN the decision reported in K. C. Mathew v. State of Travancore-Cochin, air 1956 SC 241 , it was held: "the purpose of Section 342 is set out in its opening words - "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him". If the accused is not afforded that opportunity, he is entitled to ask the appellate court, to place him in the same position as he would have been in had he been asked. In other words, he is entitled to ask the appellate Court, which is the ultimate Court of fact to take the explanation that he would have given in the first Court into consideration when weighting the evidence in just the same way as it would have done if it had been there all along. But if he does not ask this in the last Court of fact he is in little better position when the case comes here than he would be in had he, say, omitted to call, in his defence, a witness who, he says, would have deposed in his favour. In very exceptional cases he might be allowed to call such a witness even at such a stage but if he does not asked for that when his case is under appeal he would normally have but slender hope of succeeding here. It is true he is in a stronger position when section 342 is in question because the section places a solemn and serious duty on the Court, and the accused can very rightly and properly complain if the Court fails to do its duty; but when all is said and done, he cannot claim to be placed in a better position then he would have been in had the Court discharged its duty at the outset. " ( 12 ) IN another decision reported in moseb Kaka Chowdhry and another v. State of West Bengal, AIR 1956 SC 536 , it was held: "there can be no doubt that this is very inadequate compliance with the salutary provisions of Section 342, Criminal P. C. It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this court, in various decisions commencing "tara Singh v. The State", 1951 Supreme court 441 (AIR V 38) (B), on a due and fair compliance with the terms of Section 342, criminal P. C. But it is also well recognised that a judgment is not to be set aside merely by reasons of inadequate compliance with section 342, Criminal P. C. It is settled that clear prejudice must be shown. This Court has clarified the position in relation to cases where accused is represented by Counsel at the trial and in appeal. It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. This Court in its judgment in the latest case on this matter viz. , K. C. Mathew v. The State of travancore Cochin, 1956 SC 241 ( (S) AIR v. 43) (C), (delivered on 15-12-1955) has laid down that "if the Counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough. "" ( 13 ) IN Rama Shankar v. State of west Bengal, AIR 1962 SC 1239 , it was held: "failure to comply with the provisions of section 342 is an irregularity; and unless injustice is shown to have resulted therefrom a mere irregularity is by itself not sufficient to justify an order of retrial. " ( 14 ) IN the decision reported in Makan v. State of Gujarat, AIR 1971 SC 1797 , it was held: "the only other contention taken was that as the accused were not properly questioned under Section 342, Cr. PC, the prosecution should fail. Section 342, Cr. " ( 14 ) IN the decision reported in Makan v. State of Gujarat, AIR 1971 SC 1797 , it was held: "the only other contention taken was that as the accused were not properly questioned under Section 342, Cr. PC, the prosecution should fail. Section 342, Cr. PC, provides that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court may, at any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. In the instant case what the trial Court has done is that after reading out the statements made by the accused in the committal Court it merely asked them as to what they had to say about the prosecution evidence recorded in their presence. This is a wholly unsatisfactory way of questioning the accused. The trial Court had a duty to put to each of the accused the various circumstances appearing against them and further put the prosecution case generally for the purpose of affording the accused an opportunity to explain the circumstances appearing against them. There is no doubt that the examination of the accused under section 342, Cr. PC in this case is highly defective. But that does not by itself vitiate, the trial. It is for the defence to satisfy the court that because of the defect in the procedure adopted accused have been prejudiced. " ( 15 ) IN Ajit Kumar v. State of Bihar, air 1972 SC 2058 it was held: "it is no doubt true that Courts must take care to put all the relevant material circumstances appearing in evidence to the accused so as to enable him to say in his defence what he wants, in respect of the prosecution case and explain by circumstances appearing in evidence him but at the same time, as observed in Ram shankar Singh v. State of West Bengal, (1962) Supp 1 SCR 49 = AIR 1962 SC 1239 , every error or omission in complying with section 342, Cr. P. C. does not necessarily vitiate the trial. P. C. does not necessarily vitiate the trial. " ( 16 ) IN Labhchand v. State of maharashtra, AIR 1975 SC 182 , it was held: "it is clear to us that the appellant was fully aware of the nature of the allegations made against him. He had not merely given a detailed explanation under section 108 of the Act of the circumstances in which he said he was arrested with the gold bars, but, he had also filed an elaborate written statement. He had indicated that this is the only form in which he would give his explanation. It is true that the general form of questions put does not strictly comply with the provisions of section 342, Criminal Procedure Code. But we are unable to hold that the appellant suffered any injustice for this reason. Indeed, he had not even raised such a question in the trial Court or before the high Court. If he had done so, the alleged defect could have been easily cured. The objection seems to us to be most technical and flimsy. The defect could not have possibly vitiated the conviction of the appellant. " ( 17 ) IN view of the decisions referred to above, it is clear that the defective or improper examination or not even putting the incriminating circumstances against the accused need not necessarily vitiate the trial, unless prejudice is likely to have been caused to the accused. There cannot be any dispute that in this case not putting the contents of Exs. A-20 and A-29, which are two dying declarations, is highly defective examination under Section 313 Crp. C. But, such defect in view of the settled legal position does not by itself vitiate the trial. It is for the accused to satisfy the Court that because of the defect in the procedure adopted, the accused has been prejudiced to. So, in my considered opinion, the errors of those type fall within the curable irregularities and the same would not vitiate the trial of the case. ( 18 ) IT is also pertinent to refer to a recent decision of the Apex Court in State (Delhi Administration) v, Dharampal, 2001 crl. LJ 4748, wherein it was held: "thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. LJ 4748, wherein it was held: "thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused the appellate Court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him. " ( 19 ) IN another decision reported in state of Punjab v. Naib Din, 2001 Crl. LJ 4656, it was held: "that apart, respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the Code. No objection was raised in the trial Court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional Court comes across that the trial Court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the Court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particulars item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional Court can endeavour to see whether it could be rectified. " ( 20 ) SO, from the above decisions, it is very clear that such an omission to put the substantive evidence need not vitiate the proceedings, unless the prejudice was established by the accused. Efforts should be made to undo or correct the lapses. Therefore, it is a curable defect, where the matter can be remanded to the trial Court for examination. Efforts should be made to undo or correct the lapses. Therefore, it is a curable defect, where the matter can be remanded to the trial Court for examination. ( 21 ) THERE cannot be any dispute that it is not a defect or illegality in conducting the investigation or trial of the case. It is a mistake or an illegality committed by the court in not specifically bringing to the notice of the accused about the contents of the two dying declarations. Such an improper or defective examination of the accused would not by itself vitiate the trial, since it can be cured. Furthermore, it would not cause any prejudice to the accused, if the matter is remanded to the trial Court for proper examination of the accused. On the other hand, it provides an opportunity to the accused to explain the incriminating circumstances put to him. ( 22 ) THE learned Single Judge by placing strong reliance on the Apex Court in the decision reported in Nirmal Pasi v. State of bihar, 2003 (1) ALD (Crl.) 628 (SC), and a Division Bench judgment of this Court reported in B. Gopal Naik v. State of a. P. , 2002 (1) ALD (Crl.) 383 (AP), came to the conclusion that due to lapse of seven years from the date of the alleged offence, it would not be just to remand the case. Considering the facts and circumstances, the Apex Court held that after lapse of such a long time, it was not inclined to remand the matter to the trial Court for the purpose of recording the statement of the accused under section 313 Cr. P. C. The Hon ble Apex court has not laid down a proposition of law that in all cases of delay matter need not be remanded. ( 23 ) THREE persons died in this case. Two statements of the deceased persons, while they were alive, one by the Sub- inspector of Police and another by the judicial First Class Magistrate, were recorded. It is not a surprise for the accused that not putting the questions with regard to the statements recorded by the Sub- inspector of Police and the Magistrate. The only thing is that the contents in Exs. A-20 and A-29 were not put to the accused. It is not a surprise for the accused that not putting the questions with regard to the statements recorded by the Sub- inspector of Police and the Magistrate. The only thing is that the contents in Exs. A-20 and A-29 were not put to the accused. But, it is not a surprise to accused in view of the fact that the Sub-Inspector of police categorically stated that the statement under Ex. A-20, to the effect that A-1 to a-4 were responsible for the alleged death of Koteswaramma, was recorded by him. PW-18 is the Junior Civil Judge at the relevant point of time. After satisfying himself that the patient was conscious and coherent, the statement was recorded under ex. P29. ( 24 ) FOR the aforesaid reasons, the improper examination of the accused does not vitiate the trial so as to acquit them. Therefore, it is a fit matter, where the case can be remanded to the trial Court for limited purpose of examination of the accused with regard to the contents in the two dying declarations Exs. A-20 and A-29. ( 25 ) AGAINST the acquittal of A-2 to A-6, criminal Appeal No. 2606 of 2004 is preferred by the State. The case of the accused in this appeal is also stands on the same footing with that of the appellant who is convicted in S. C. No. 225 of 1999. By virtue of the observations in S. C. No. 225 of 1999, the conviction and sentence imposed against A- 1 is set aside on the ground of defective examination of the appellant by the trial court under Section 313 Cr. P. C. The same principle will also equally apply to the case of A-2 to A-6, who are respondents in crl. A. No. 2606 of 2004. If the incriminating circumstances in Exs. A-20 and A-29 are required to put to all the accused persons, who have been referred to in those two dying declarations, it is a lapse committed by the Court. It is not the delay occurred by virtue of delaying tactics adopted by the prosecution. A. No. 2606 of 2004. If the incriminating circumstances in Exs. A-20 and A-29 are required to put to all the accused persons, who have been referred to in those two dying declarations, it is a lapse committed by the Court. It is not the delay occurred by virtue of delaying tactics adopted by the prosecution. ( 26 ) SO, in my considered opinion when the Court committed a mistake in not discharging its duties properly as per the procedure, the same will not enure to the benefit of the accused and on that ground, the accused cannot claim that he is entitled for the acquittal for the lapses or illegalities committed by the Court. Therefore, the order of acquittal passed against A-2 to A-6 is set aside. ( 27 ) HENCE, the conviction and sentence imposed against A-1 is set aside and the matter is remanded to the trial Court for examination of A-1 to A-5 afresh. If the accused are on bail during trial, they shall be released on bail. ( 28 ) BOTH the criminal appeals are partly allowed to the extent indicated above.