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2007 DIGILAW 1339 (BOM)

Rajesh s/o. Pralhad Bagde v. State of Maharashtra

2007-09-14

B.P.DHARMADHIKARI, D.D.SINHA

body2007
JUDGMENT (Per D.D.Sinha, J.) : 1. Heard Mr. A.S.Manohar, Adv. for the Appellant no.2, Mr.R.M.Daga, Adv. for the Appellant Nos. 3 and 4 and Mr.D.B.Patel, A.P.P. for the Respondent-State. 2. This Criminal Appeal is directed against the judgment and order dt. 19.8.2004 passed by the 7th Ad-hoc Additional Sessions Judge, Nagpur in Sessions Trial No.178 of 2003 whereby Criminal Appeal No.581/2004 3 the appellants were convicted for the offence punishable u/s. 302 r/w. Section 34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- each. The appellant no.1 Rajesh Pralhad Bagade is dead. 3. The circumstances which have given rise to the prosecution of the appellants are as follows : On 8.11.2002 at 9.00 P.M. Chandrabhagabai (PW 1) along with her son (deceased Kisan) was going to hospital of Dr.Shende for treatment of Kisan. However, when they reached near the public toilet, Kisan told his mother Chandrabhagabai that he would go to the hospital next day and therefore, both of them were returning back to their house. At about 9.30 P.M. when they came near the house of appellant no.1 Rajesh Bagde, Chandrabhagabai saw that appellant no.1 Rajesh, appellant no.2 Chetan, appellant no.3 Arvind and appellant no.4 Pravin were Criminal Appeal No.581/2004 4 standing near the house of appellant no.1 Rajesh. All of them caught hold of Kisan and started assaulting him by their respective weapons. Appellants Rajesh and Chetan assaulted Kisan by means of knives and appellant Pravin inflicted injuries on the person of deceased by means of big knives. Kisan fell down on the road opposite to the house of appellant Rajesh Bagde. Chandrabhagabai started shouting. Her house was very close to the place of incident, so she rushed towards her house and immediately thereafter returned to the spot of occurrence along with her daughter Durga Diwakar Ghutke (PW 9) as well as other relatives. It is the case of the prosecution that, when these people reached the spot of occurrence, assault on Kisan by the appellants with their respective weapons was going on. The appellants after seeing Chandrabhagabai and others ran way from the spot of occurrence leaving injured Kisan on the spot. Kisan was taken to Mayo hospital in unconscious state where doctor, after examining him, declared him dead. 4. The appellants after seeing Chandrabhagabai and others ran way from the spot of occurrence leaving injured Kisan on the spot. Kisan was taken to Mayo hospital in unconscious state where doctor, after examining him, declared him dead. 4. Learned counsel for the appellants have contended that the questions put to the appellants in their examination u/s.313 of the Code of Criminal Procedure are of composite nature and interlinked with more than one circumstance and therefore, the appellants were not only confused, but they even did not understand the purport of those questions with the result the appellants could not give proper answers/explanation to those questions which has resulted in miscarriage of justice. It is further submitted by the learned counsel for the appellants that the trial Court is required to frame questions in simple form and the same should be distinct and separate in respect of each individual circumstance, which is relied upon by the trial Court for awarding conviction to the appellants. It is contended that, in the instant case, most of the questions put to the appellants by the trial Court are not properly framed and therefore, the appellants did not understand the purport of the same and could not give proper answers to those questions and therefore, the circumstances relied upon by the trial Court for awarding conviction for the offence punishable u/s. 302 r/w. Section 34 of the Indian Penal Code cannot be sustained in law. In order to substantiate their contention, reliance is placed on the decision of the Apex Court reported in 2007 (2) Bom.C.R.(Cri.) 6 (Ajay Singh .vs. State of Maharashtra). 5. Mr.T.A.Mirza, Additional Public Prosecutor for the Respondent-State though has not disputed that the questions which were put to the appellants by the trial Court were not properly framed, however, he has stated that this Court can frame proper questions based on the incriminating circumstances which are relied on by the trial Court while awarding conviction and those questions can be put to the appellants and thereafter, the appeal may be heard. 6. We have given our anxious thoughts to the issue in question and also considered the evidence adduced by the prosecution as well as the manner in which the questions are framed and put to the appellants by the trial Court in their examination u/s. 313 of the Code of Criminal Procedure. 6. We have given our anxious thoughts to the issue in question and also considered the evidence adduced by the prosecution as well as the manner in which the questions are framed and put to the appellants by the trial Court in their examination u/s. 313 of the Code of Criminal Procedure. It is well settled that all the incriminating circumstances which are relied by the trial Court must be put to the accused. The questions must be framed in such a way so that the accused is in a position to understand what he is required to explain. There is a duty cast upon the trial Court to put to the accused all the incriminating circumstances. The whole object of Section 313 of the Code of Criminal Procedure is to afford the accused a fair and proper opportunity of explaining the circumstances which are brought on record by the prosecution and are against him. The trial Court is required to frame questions in such a manner which are not only simple but must be fair and straight-forward so that even a illiterate person will be able to appreciate and understand the same. The purport of Section 313 of the Code of Criminal Procedure is to draw attention of the accused to the specific circumstances appearing against him in the evidence on the basis of which prosecution claims that it has succeeded in bringing Criminal Appeal No.581/2004 8 home the guilt of the accused for the offence/s charged. However, if the methodology adopted by the trial Court demonstrates that the trial Court has failed to frame proper, specific and distinct question vis-a-vis each incriminating circumstance, in such a situation, in our view, it would not enable the accused to know what he has to explain and would further result in miscarriage of justice. The relevant observations of the Apex Court in this regard in case of Ajay Singh (cited supra) are in para nos. 10, 11 and 13, which read thus : PARA NO.10 : .The purpose of Section 313 of the Code is set out in its opening words 'for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him'. 10, 11 and 13, which read thus : PARA NO.10 : .The purpose of Section 313 of the Code is set out in its opening words 'for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him'. In (Hate Singh, Bhagat Singh vs. State of Madhya Pradesh), 1953 DGLS 101; A.I.R. 1953 S.C. 468 it has been laid down by Bose, J that the statements of accused persons recorded under section 313 of the Code ' are among the most important matters to be considered at the trial '. It was pointed out that the statements of the accused recorded by the committing Magistrate and the Sessions Judge Criminal Appeal No.581/2004 9 are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under section 313 has to be considered in the same way as if section 315 is not there. PARA NO.11 : . The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. . PARA NO.13 : . The importance of observing faithfully and fairly the provisions of section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will Criminal Appeal No.581/2004 10 be able to appreciate and understand. Even when an accused is not illiterate, hismind is apt to be perturbed when he is facing a charge of murder. The questionings must be fair and couched in a form which an ignorant or illiterate person will Criminal Appeal No.581/2004 10 be able to appreciate and understand. Even when an accused is not illiterate, hismind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. . 7. In the instant case, we want to reiterate that the trial Court has failed to frame proper, simple and separate questions relating to each incriminating circumstance appearing in the evidence against the accused - for example question no.32 framed by the trial Court and put to all the appellants, which reads thus : . He has stated that he showed those weapons to doctor and obtained his query report. His requisition for it is at ex.115. Then he sent all articles for analysis and their requisition is on record at ex. 124 and 125. He has recorded arrest forms of accused when you accused were arrested. They are on record at exh. 126 to 129 under his signature. Then he issued a letter to CJM for recording statement u/s. 164 of Cr.P.C. of witnesses vide exh. 130. C.A. report is at exh. 98 and 99. Do you want to say anything regarding this ?. 8. Similar is the case with the other questions which are composite in nature and confusing in character. In the circumstances, in view of the law laid down by the Apex Court in the case of Ajay Singh, it will be appropriate in the interest of justice to remand the case back to the trial Court. 9. For the reasons stated hereinabove, the conviction and sentence of the appellants in Sessions Trial No.178 of 2003 is set aside. Case is remanded back to the trial Court with a direction to frame simple, separate and distinct question vis-a-vis each incriminating circumstance appearing against the appellants and the same should be put to the appellants while recording their statements u/s. 313 of the Code of Criminal Procedure afresh. Case is remanded back to the trial Court with a direction to frame simple, separate and distinct question vis-a-vis each incriminating circumstance appearing against the appellants and the same should be put to the appellants while recording their statements u/s. 313 of the Code of Criminal Procedure afresh. After recording the statements u/s. 313 of the Code of Criminal Procedure, fresh arguments be heard and the matter be disposed of by fresh judgment within a period of four months from the date of receipt of the record and proceedings. 10. The Additional Registrar (Judicial) is directed to remit the record and proceedings to the trial Court within fortnight. With these observations and directions, the Criminal Appeal is disposed of.