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Himachal Pradesh High Court · body

2009 DIGILAW 391 (HP)

SHISHAN KUMAR v. STATE OF HIMACHAL PRADESH

2009-04-29

SURINDER SINGH

body2009
JUDGMENT Surinder Singh, J (Oral):-The appellant has been convicted and sentenced under Section 363, 366 and 376 of the Indian Penal Code, by the learned Additional Sessions Judge (Fast Track Court), Hamirpur, which has been challenged in this appeal. 2. During the course of arguments, it came to the light that while examining the accused under Section 313 of the Code of Criminal Procedure, in short ‘the Code’, the learned trial court did not put a material circumstance i.e. the Forensic Science report Ex.PW11/B to the accused whereby it is reported that the Salwar (Ex.P1) of the prosecutrix contained the semen stains. Further it also transpired that after recording the statement of the accused/ appellant under Section 313 Cr.P.C. on 12.2.2007, the learned trial court also did not resort to the provisions of Section 233(1) of the Code but it straight-away recorded the statement of the accused that he did not want to adduce defence evidence. Later the arguments were heard and the case decided. 3. The object of Section 313 of the Code is to enable the accused to explain circumstance(s) appearing against him in the prosecution evidence. Any circumstance which has not been put has to be excluded from consideration. The learned trial court inter alia relied upon the forensic report Ex.PW11/B which could not have been relied upon unless an opportunity was given to the accused to explain it thus, the aforesaid circumstance is required to be put to the appellant to seek explanation, so that no prejudice is caused to the accused. 4. Further Section 232 of the Code of Criminal Procedure envisages that if after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. The accused has to be acquitted under Section 232 of the Code, if there is no evidence at all. If there is some evidence, what value should be attached to it is a separate matter, but then no order of acquittal can be recorded. 5. In the instant case, it was not a case of no evidence against the accused. The accused has to be acquitted under Section 232 of the Code, if there is no evidence at all. If there is some evidence, what value should be attached to it is a separate matter, but then no order of acquittal can be recorded. 5. In the instant case, it was not a case of no evidence against the accused. The question whether the accused wants to lead evidence in defence, would not arise when the trial is at the stage of Section 232 of the Code, but when the court is of the opinion that it is a case of some evidence against the accused it is incumbent upon the trial court to call upon the accused to enter into his defence as per the provisions of Section 233 of the Code. 6. Further, there is non-compliance of Section 233(1) of the Code, which in my opinion is a curable irregularity, which does not vitiate the trial. But the accused should have been informed of his right by the trial Judge and an effective and meaningful opportunity to adduce evidence in his defence must have been extended to him. 7. In nut shell, the accused need be called upon to enter into his defence only when the trial proceeds to the next stage after Section 232 of the Code. 8. Therefore, in these circumstances, the judgment of conviction and sentence passed by the learned trial court in this case deserves to be set-aside and the case in all eventuality has to be remanded back to the learned trial court. 9. For the reasons aforesaid, the conviction and sentence passed by the learned trial court against the appellant is set-aside and the case is remanded back with direction to the learned trial court to examine the accused under Section 313 of the Code of Criminal Procedure, with respect to incriminating circumstance i.e. Forensic report Ex.PW11/B stated above. Thereafter the learned trial court shall comply with the provisions of Section 233(1) of the Code. In case, the accused chooses to lead his defence, he shall be given reasonable opportunity to examine his witness(s) according to law. Thereafter the learned trial court shall comply with the provisions of Section 233(1) of the Code. In case, the accused chooses to lead his defence, he shall be given reasonable opportunity to examine his witness(s) according to law. Thereafter the matter shall be finally heard and decided by the learned trial court keeping in view the entire evidence including defence evidence if any and the explanation given by the accused in his statement under Section 313 Cr.P.C. without having been influenced by the earlier judgment in any manner. 10. The learned trial court shall make every endeavour to dispose of the matter within two months from the date of receipt of the record keeping in view the age of the case. 11. However, it is made clear that the appellant shall remain in judicial custody till the final disposal of this case by the learned trial court. 12. Send down the records of the trial court forthwith.