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2010 DIGILAW 924 (ALL)

RAJU v. STATE OF U. P.

2010-03-19

VIRENDRA SINGH

body2010
JUDGMENT Honble Virendra Singh, J.—Revisionist Raju, preferred this revision against the Judgement and order dated 11.4.2001 passed by Judge, Family Court, Agra, in case No. 396 of 1996 through which learned Judge has allowed the application of the respondent No. 2 under Section 125 Cr.P.C. and has directed the revisionist to pay Rs. 500/- per month to the opposite party No. 2 as maintenance allowance from 17.9.1999, the date of application filed by respondent No. 2 before the Family Court, Agra. 2. At the time of hearing of this revision, no one appeared on behalf of revisionist while leaned counsel for respondent No. 2 and learned A.G.A on behalf of respondent the State of U.P. remained present, who have been heard on this revision as per grounds mentioned in the memo of this revision. 3. As per grounds mentioned in the memo of this revision, the impugned order is said to have been passed by the Court below awarding Rs. 500/- per month from the date of application, is against the law as well as on the facts of the case because Smt. Dimpal, opposite party No. 2, refused to live with the revisionist without any sufficient reason and the financial conditions of the revisionist is very poor, while the respondent No. 2, Smt. Dimpal knows the art of painting, sewing and weaving etc by which she earns Rs. 1500/- per month. The Court below even did not consider the proviso under Section 125, Cr.P.C. in which it is provided that wife is not entitled for any maintenance in case she refuses to live with her husband. It is further stated that the Court below has illegally awarded the maintenance from the date of application with no reasons for awarding it from the date of application which is now mandatory under the law. 4. The learned counsel for the respondent No. 2 as well learned A.G.A on behalf of State of U.P. submitted that there is no illegality in the impugned order either on the facts of this case or in the eyes of law as the lower Court has rightly found the revisionist under obligation to maintain his wife and awarded maintenance allowance at a rate of Rs. 500/- per month to respondent No. 2, which is neither excessive nor there is any illegality in awarding of maintenance from the date of application. 5. 500/- per month to respondent No. 2, which is neither excessive nor there is any illegality in awarding of maintenance from the date of application. 5. In the light of contentions raised on behalf of respondents in reference to the grounds mentioned in the memo of this revision, I have gone through the entire facts and circumstances on record. The law is very much well known as is held in various cases by the Hon’ble Supreme Court as well as by High Courts in this country, which is summarized as below. "The revisionary Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401, Cr.P.C. Section 397, Cr.P.C. confers power on the High Court or Sessions Court as the case may be, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the irregularity of any proceeding of such inferior Court. It is for the above purpose, if necessary, the High Court or Sessions Court can exercise of appellate powers. Section 401, Cr.P.C. conferring power of Appellate Court on the Revision Court is with the above limited purpose. Section 395 to 401, Cr.P.C. read together do not indicate that the revisionary power of the High Court can be exercised as the consequent of appellate power. The revision powers though very wide are purely discretionary, to be fairly exercised according to the exigencies of each case. It is very well settled that it is normally to be exercised only in unexceptional case if there is glaring defect in the procedure or there is manifest error on any point of law and consequently there has been a flagrant miscarriage of justice. These powers are extraordinary powers which must be exercised with due regard to the circumstances of each particular case. High Court will not interfere on a technical ground, but may only interfere when substantial question arises or when a material error effects the decision. It may interfere when a jurisdiction vested has been exercised in an improper manner or improper ground. Even if the order is wrong or illegal, the High Court will not always interfere when substantial justice has been done or no prejudice has resulted to the accused. The error of law must lead to a failure of justice. It may interfere when a jurisdiction vested has been exercised in an improper manner or improper ground. Even if the order is wrong or illegal, the High Court will not always interfere when substantial justice has been done or no prejudice has resulted to the accused. The error of law must lead to a failure of justice. In Revisionary matter the High Court does not take a technical view and interfere in every case when an order has been made irregular or improper. The fact that the High Court as an Court of appeal might have taken different view is no ground for interference. The revisionary jurisdiction will not be exercised in such a way as a given right of appeal in cases excluded by the Criminal Procedure Code." 6. In the light of law as is stated above and after perusal of the records of this case, I am of this view that there is no illegality in the order for awarding a sum of Rs. 500/- per month only as maintenance allowance to the respondent No. 2 because it is well established on record that the relations in between the parties remained very much tense as respondent No. 2 lodged a report too against the revisionist at police station New, Agra. It gives reasonable ground to live separately to respondent No. 2 from the revisionist. So far as the question of income of revisionist is concerned, no doubt the respondent No. 2 could not prove the income of the revisionist to the tune of Rs. 5000/- as salary from Bharat Diesel Engine Factory but however guesswork for income of Rs. 40-50 per day as labourer of the revisionist, cannot be said perverse or beyond imagination. There is no proof on record for the fact that the respondent No. 2 is able to maintain herself as there is no evidence of her income on record. In the light of entire scenario of the evidence on record, a payment of Rs. 500/- per month to the wife by a husband is not excessive. 7. So far as the question of awarding the maintenance allowance from the date of application is concerned, no doubt the reasons in this regard have not been given by the lower Court in the impugned order. 500/- per month to the wife by a husband is not excessive. 7. So far as the question of awarding the maintenance allowance from the date of application is concerned, no doubt the reasons in this regard have not been given by the lower Court in the impugned order. Not even a single word is stated as to why the maintenance amount is to be paid by the revisionist to the respondent No. 2 from the date of her application. Section 125, Cr.P.C. in this regard is very much relevant which provides that if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate may order such person to make a monthly allowance for the maintenance of his wife at such monthly rate, as such Magistrate thinks fit. Sub-clause (2) of Section 125, Cr.P.C. provides that any such allowance for the maintenance shall be payable from the date of such order, or if, so ordered, from the date of application for maintenance, as the case may be. Since sub-clause (2) very well provides that such maintenance shall be allowed from the date of order but if that amount has to be paid from the date of application, the Magistrate has to order in this regard, therefore, it means that the reasons in this regard have to be given by the Magistrate. This Court is required to record the reasons when it awards the maintenance from the date of application. The impugned order is silent in this regard as to why the impugned order shall be effective from the date of application moved by respondent No. 2 before the Magistrate. 8. Since there is no reasons recorded by the Magistrate as to under what circumstances the maintenance allowance is being ordered to be paid from the date of application of respondent No. 2, therefore I do find the impugned order erroneous up to the extent of it’s enforcement and it should be deemed to have been allowed from the date of order. Therefore, this revision deserves to be allowed partly and is hereby allowed accordingly thereby finding that the impugned order shall be deemed enforceable from the date of its order. ———— [2010(3) ADJ 695 (DB)] ALLAHABAD HIGH COURT BEFORE : VINEET SARAN AND VIJAY KUMAR VERMA, JJ. Therefore, this revision deserves to be allowed partly and is hereby allowed accordingly thereby finding that the impugned order shall be deemed enforceable from the date of its order. ———— [2010(3) ADJ 695 (DB)] ALLAHABAD HIGH COURT BEFORE : VINEET SARAN AND VIJAY KUMAR VERMA, JJ. PANNA LAL .....Appellants Versus STATE OF U.P. ....Opposite Party (Criminal (Jail) Appeal No. 5448 of 2007, decided on 19th March, 2010) (A) (Indian) Penal Code, 1860—Sections 328 and 302—Criminal Procedure Code, 1973—Sections 313 and 391—Murder—Conviction—Sustainability of—In present case statement of accused recorded under Section 313 of Cr.P.C. name, parentage, age as well as residential address of person giving statement has not been mentioned—Same cannot be treated, as statement of accused under Section 313 of Cr.P.C.—On perusal of original record said objection appears to be correct—There was fatal mistake in statement recorded under Section 313 of Cr.P.C.—No specific question put to accused/appellant at time of recording of his statement under Section 313 of Cr.P.C.—With regard to dead bodies having been found in room under his tenancy or accused was last seen in accompany of deceased—It amounts to serious irregularity—Matter remanded back. [Paras 7, 10 and 14] (B) Criminal Procedure Code, 1973—Section 313—Statement—Recording of—Purpose of—After witnesses of prosecution have been examined—Is that accused may defend himself—After coming to know basis on which he is charged of offence. [Para 10] Result; Order Accordingly. Cases cited : 1984 SCC (Cri) 487 (Para 7); AIR 1956 SC 469 (Para 9); (2005) 6 SCC 101 (Para 11); 2007 (12) SCC 341 (Para 12). Counsel : From Jail, Brijesh Sahai, A.C. for the Appellants; A.G.A. for the Opposite Party. JUDGMENT Hon’ble Vineet Saran, J.—Appellant Panna Lal has been convicted under Section 328, I.P.C. and sentenced for 5 years rigorous imprisonment and a fine of Rs. 3,000/- and in default of payment of fine, to undergo 3 months simple imprisonment. He has also been convicted under Section 302, I.P.C. and sentenced to life imprisonment and a fine of Rs. 7,000/- and in default of payment of fine, to undergo 6 months simple imprisonment. It is this judgment and order dated 8.9.2004 passed by the Additional Sessions Judge, Court No. 3, Moradabad in Sessions Trial No. 612 of 2001 (State v. Panna Lal) which is under challenge in this appeal. 2. 7,000/- and in default of payment of fine, to undergo 6 months simple imprisonment. It is this judgment and order dated 8.9.2004 passed by the Additional Sessions Judge, Court No. 3, Moradabad in Sessions Trial No. 612 of 2001 (State v. Panna Lal) which is under challenge in this appeal. 2. In brief the case of the prosecution is that the appellant was the tenant in a portion of the house of one Man Singh with effect from 22.5.2001. Said Man Singh informed the police of Police Station Katghar on 30.5.2001 by moving a written report that the appellant Panna Lal is a tenant in a room of third floor of his house where he resides with his wife and children, and that the room is locked from outside and is emitting foul smell. It is on this information that the police reached the spot and on noticing that foul smell was coming from the room, they broke open the lock of the room under the tenancy of the appellant in presence of the witnesses and the owner of the house and found the dead body of Smt. Poonam (wife of the appellant) lying beneath the bed and the dead bodies of three children (all minor daughters of the appellant) lying on the floor. After completing the formalities, the police began its investigation during which one Raju Kashyap submitted a written information to the Investigation Officer stating that his maternal uncle (appellant Panna Lal) had come to him in the forenoon and told him that he (Raju Kashyap) had illicit relations with Poonam (wife of the appellant) and therefore she has been done to death day before yesterday and that yesterday all the three daughters have also been murdered, who were born of her (Poonam) illicit relations with him (Raju Kashyap). During investigation a diary was also recovered which is said to be in the hand writing of Panna Lal which was produced before the Chief Judicial Magistrate by way of filing an application and the appellant Panna Lal is said to have admitted that the same was in his hand writing. In the post mortem report, since the cause of death could not be ascertained, Viscera was preserved and sent for chemical examination and the report of the chemical examiner disclosed that aluminium phosphide poison was found. After completing the investigation, a charge sheet was submitted against Panna Lal. In the post mortem report, since the cause of death could not be ascertained, Viscera was preserved and sent for chemical examination and the report of the chemical examiner disclosed that aluminium phosphide poison was found. After completing the investigation, a charge sheet was submitted against Panna Lal. The accused thereafter appeared and charges under Sections 328 and 302, I.P.C. were framed against him. Since the accused pleaded innocence, trial was held. 3. The prosecution examined the informant Man Singh, who was the landlord of the appellant, as P.W.1; Murari Singh who was the neighbour of Panna Lal and tenant of Man Singh, as P.W.2; Raju Kashyap, nephew of the appellant Panna Lal, as P.W.3; Dr. Mahendra Singh, who conducted the post mortem on the dead bodies, as P.W.4 and S.I. Kishan Lal Talan, who investigated the case, as P.W.5. The case rests on circumstantial evidence. P.W.1 and P.W.2 have given statement of having last seen the appellant with his wife and children. P.W. 3 Raju Kashyap, nephew of the appellant, has in his statement given the motive of the crime which is said to be that the appellant was of the opinion that his wife was having illicit relations with Raju Kashyap and also that the appellant had made extra judicial confession before the said witness. P.W. 4 Dr. Mahendra Singh proved the post mortem reports. 4. The trial Court has convicted the appellant after holding that there was motive of suspected infidelity and that there was extra judicial confession made before P.W. 3 Raju Kashyap and that all the four dead bodies were found from the room under the tenancy of the appellant which he could not explain and that he was last seen in the company of the deceased. Although the appellant had previous history of having committed the murder of his first wife, for which he was convicted and sentenced for life imprisonment and was on bail when the present incident is said to have taken place, but the trial Court did not take the same into consideration while convicting the appellant under Sections 302 and 328, I.P.C. 5. Since this appeal was filed by the appellant from jail without engaging any counsel, Sri Brijesh Sahai, Advocate had been appointed as Amicus Curiae to assist the Court on behalf of the appellant. 6. Since this appeal was filed by the appellant from jail without engaging any counsel, Sri Brijesh Sahai, Advocate had been appointed as Amicus Curiae to assist the Court on behalf of the appellant. 6. We have heard Sri Brijesh Sahai on behalf of the appellant and Sri R.K.Singh, learned A.G.A. appearing on behalf of the State and have perused the record. 7. Besides having argued on merits, Sri Brijesh Sahai has raised a preliminary ground with regard to the infirmities in the statement of the accused recorded under Section 313, Cr.P.C., which we shall first examine. 8. The submission of Sri Sahai is that in the statement of the accused recorded under Section 313, Cr.P.C. the name, parentage, age as well as the residential address of the person giving the statement has not been mentioned and as such the same cannot be treated as the statement of the accused under Section 313, Cr.P.C. On perusal of the original record, the said objection of Sri Sahai appears to be correct as the said columns have been left blank. It has further been submitted that no question was put to the accused that the dead bodies were found in the room under his tenancy as the question No. 3 merely states that the dead bodies were found in a room of the house in question which, according to the appellant, is a three storied house and had several tenants. It is thus submitted that in the absence of a specific question being asked, the defence of the accused was prejudiced. It is also submitted that no question was put to the accused that he was last seen in the company of the deceased and his conviction by the trial Court has been based on such evidence. It is thus contended that without the said circumstances having been put to the accused, he could not have been convicted on such ground. It is further submitted by Sri Sahai that the circumstance of the case being of homicidal death was also not put to the appellant nor was any question put to him that it was he who had committed the murder. It is further submitted by Sri Sahai that the circumstance of the case being of homicidal death was also not put to the appellant nor was any question put to him that it was he who had committed the murder. It is also submitted that the circumstance regarding the cause of death, which was poisoning, was also not put to the accused and thus the defence of the accused was prejudiced and his conviction, which is on the aforesaid grounds, could not have been done and the said judgment passed by the trial Court is thus liable to be set aside. In support of his contention reliance has been placed on the decision of the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, 1984 SCC (Cri) 487. 9. In a nutshell the submission of Sri Sahai thus is that although it may be a case of death by poisoning but in the absence of any suggestion made while recording his statement under Section 313, Cr.P.C. that the deceased were poisoned by the accused, he could not know the precise charge to which he had to defend himself because according to the appellant, though it was a case of poisoning but the same could also be a case of accidental poisoning or suicide by consuming poison or homicidal death. It was thus submitted that since the statement under Section 313, Cr.P.C. does not put the appellant in the dock as a murderer, he could not be convicted for having committed the murder. 10. Sri R.K.Singh, learned A.G.A. appearing for the State has, on the other hand, submitted that each case depends on its own facts and in the present case, since the dead bodies were recovered from the room under the tenancy of the appellant, it was for him to explain as to under what circumstances his wife and three minor daughters had died of poisoning in the room. He further submitted that the appellant had been asked the last question which was that if he had anything more to say and in response to the same he could have explained his position. In support of this submission reliance has been placed on a decision of the Apex Court in the case of Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469 . In support of this submission reliance has been placed on a decision of the Apex Court in the case of Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469 . Sri Singh has also pointed out that the question No. 2 put to the appellant was specific with regard to the foul smell coming from the room in the tenancy of the appellant and the question No. 3 put to the appellant (which was in continuation of question No. 2) was with regard to the dead bodies of his wife and children being recovered from the room of the said house and as such there was no ambiguity in the question and if read along with the question No. 2, it would be clear that the dead bodies were recovered from the room under the tenancy of the appellant. As regards the other questions with regard to the appellant having been last seen in the company of the deceased persons or the circumstance regarding the cause of death and whether the appellant had administered poison on the deceased, Sri Singh submitted that the entire case was based on the said circumstance and as such the appellant could have clarified his position while answering the last question under Section 313, Cr.P.C. as to whether he had anything more to say in the matter or not. With regard to the details of the accused not being given in the statement under Section 313, Cr.P.C., Sri Singh submitted that the same was a clerical mistake which could be corrected even at this stage. 11. Having gone through the record we are of the view that there was a fatal mistake in the statement recorded under Section 313, Cr.P.C. as the name, parentage, age and address of the person making the statement has not been mentioned. As such we agree with the contention of the learned counsel for the appellant that the same cannot be read as the statement of the accused made under Section 313, Cr.P.C. Besides this, even if the said statement recorded under Section 313, Cr.P.C. is taken as valid, then too, in the facts and circumstances of this case, we are of the view that questions put to the appellant were not specific as required under the Code of Criminal Procedure. The purpose of recording the statement under Section 313, Cr.P.C. after the witnesses of the prosecution have been examined, is that the accused may defend himself after coming to know the basis on which he is charged of the offence. In the present case though the statements made by the prosecution witnesses lead to the presumption that the appellant was charged of the murder of his wife and three minor daughters by having poisoned them but in the absence of any such question having been put to the accused-appellant at the time of recording of his statement under Section 313, Cr.P.C. with regard to the dead bodies having been found in the room under his tenancy or that the accused was last seen in the company of the deceased persons or that he was responsible for administering poison to the deceased persons, in our view, the submission of Sri Sahai, learned counsel for the appellant, that the defence of the accused was prejudiced, has force. 12. On this point the views of various High Courts including the Apex Court are consistent that failure to put specific question has the complexion of a serious irregularity. In the case of State of Punjab v. Swaran Singh, 2005 (6) SCC 101 the Apex Court has observed that if there were circumstances in the evidence which were 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 him to given an explanation or answer for such adverse circumstance in the evidence. 13. In the case of Ajay Singh v. State of Maharashtra, 2007 (12) SCC 341 the Apex Court has held that “......... the question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 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 be able to appreciate and understand. Even when an accused is not illiterate, his mind 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.” 14. Reverting to the facts of this case, we have already held above that the questions put to the accused-appellant under Section 313, Cr.P.C. were not specific as required in law. Accordingly, on the ground that in the statement under Section 313, Cr.P.C. the name, parentage, age and address of the person making the statement has not been mentioned and also on the ground that the questions put to the accused-appellant were not specific so as to enable the accused to give his explanation or answer, we are of the opinion that opportunity should be given to the appellant to explain the incriminating circumstances against him. 15. In the result, the matter is remanded back to the trial Court under Section 391, Cr.P.C. for the purposes of recording fresh statement under Section 313, Cr.P.C. after putting the relevant questions to the accused-appellant so as to enable him to explain or answer to the adverse/incriminating evidence on record. The accused shall have liberty to examine any fresh witness in defence, if so required and permitted by the trial Court. The accused shall have liberty to examine any fresh witness in defence, if so required and permitted by the trial Court. It is directed that the trial Court shall complete the exercise within a period of four months and re-submit the records to this Court immediately thereafter. Upon receipt of the records, it is directed, the office shall list the matter again for hearing afresh. 16. The office is directed to certify the judgment to the Court concerned for necessary compliance and entire record of Sessions Trial No. 612 of 2001 be also sent back. 17. We appreciate the able assistance rendered by Sri Brijesh Sahai as Amicus Curiae and direct that payment of Rs. 7,500/- as interim fee be made to him. ————