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2013 DIGILAW 1321 (KAR)

B. S. Janardhana v. State of Karnataka

2013-11-19

N.ANANDA

body2013
Judgment : 1. The appellants (hereinafter referred to as accused no.1 and 2) were tried, convicted and sentenced for offences punishable under Sections 498-A, 306 r/w 34 IPC. Therefore, they are before this court. 2. I have heard Sri.Arun Shyam, learned counsel for accused and learned State Public Prosecutor for the State and I have gone through the records. 3. In my considered opinion, the examination of accused under Section 313 Cr.P.C., by the trial court is perfunctory. The trial court has a duty to examine the accused under Section 313 Cr.P.C., by questioning the accused about incriminating evidence appearing against them. The purpose of putting incriminating evidence is two fold: 1) The accused will have an opportunity to explain the incriminating evidence appearing against him. 2) The incriminating evidence, which is not put to the accused even if it is found credible and consistent cannot be used to convict the accused. In the case on hand, the learned Sessions Judge has recorded the evidence of PW's.1 to 10 and prosecution has tendered documents as per Ex.P1 to P12. 4. As could be seen from the medical evidence and contents of chemical examination report, the death of Saraswathi was due to consumption of poison. This fact has not been controverted by the accused. 5. Out of five questions framed by the trial court, Question no.1 is introductory in nature; Question no.2 relates to evidence of Head Constable who had recorded the statement of deceased when she was treated in the District Hospital at Madikeri; Questions no.3 to 5 relate to postmortem examination of deceased by Dr.Nalini Pai, examination of vicera in the Forensic Science Laboratory and opinion furnished thereon, which in my considered opinion have not been controverted by the accused. Questions no.6 and 7 are too informal. Therefore, I am of the considered opinion that learned Sessions Judge has abdicated his duty and has ignored the purpose of examination of accused under Section 313 Cr.P.C., as aforestated. 6. The learned counsel for accused relying on the judgment of Supreme Court reported in 2008 CRL.L.J. 4338, AIR (SC) 2011-0-632, 2013 CRL.L.J. 3140 would submit that when the incriminating evidence is not put to the accused when examined under Section 313 Cr.P.C., the same cannot be used to convict the accused. The learned counsel would submit that, in the aforestated cases, the Supreme Court has acquitted the accused. The learned counsel would submit that, in the aforestated cases, the Supreme Court has acquitted the accused. In the case on hand, we are dealing with first appeal against judgment of conviction. 7. In a decision reported in AIR 1979 SC 1042 (in the case of Babboo and others -vs- The State of Madhya Pradesh) the Supreme Court has held: "There is only one appeal on facts to the High Court, ordinarily it is expected that the contentions raised by the accused would receive serious considerations at the hands of the High Court." 8. In this appeal against judgment of conviction, this court being the court of first appeal has to reappreciate the evidence adduced by prosecution either to agree or disagree with the findings recorded by the trial court. 9. In a decision reported in 2013 CRL.L.J. 3140 (in the case of Sujit Biswas -vs- State of Assam) the Supreme Court has held: the evidence which is not put to the accused when he is examined under Section 313 Cr.P.C., cannot be used against him. In the case on hand, the learned trial judge has not questioned the accused on incriminating evidence appearing against them. 10. In the discussion made supra, I have narrated the manner of examination of accused, nature of questions framed by the learned Sessions Judge for examination of accused under Section 313 Cr.P.C. The examination of accused by the learned Sessions Judge is perfunctory. The learned trial judge has ignored the duty of the court to put incriminating evidence against the accused when accused is examined under Section 313 Cr.P.C., so that the accused may have an opportunity to offer explanation, if any. The learned Sessions Judge has not shown awareness of the legal position that incriminating evidence which is not put to the accused when examined under Section 313 Cr.P.C., cannot be used to convict the accused. 11. In a decision reported in 1999 Crl.L.J. 2632 (in the case of Deputy Superintendent of Police, Railway, Hubli -vs- Dasharath, S/o Marthandappa Malge and Others) a Division Bench of this court has held: if the trial court fails to examine the accused under Section 313 Cr.P.C., with reference to incriminating evidence appearing against him and the manner of examination chosen to afford just and fair opportunity to the accused the matter has to be remanded to the trial court to examine the accused afresh. 12. 12. In a decision reported in 2002 CRL.L.J 103 (in the case of Keshavmurthy -vs- State) this court following the earlier judgment reported in 1999 Crl.L.J. 2632 has held: when the incriminating evidence is not put to accused when examined under Section 313 Cr.P.C., to provide an opportunity to explain the situation appearing against him, the matter shall be remanded for fresh examination of accused under Section 313 Cr.P.C. A similar view is taken by the Division Bench of Gauhati High Court in a judgment reported in GAULT-2013-1-623 (in the case of Mongchajai Mog -vs- State of Tripura). Therefore, the impugned judgment cannot be sustained. 13. In the result, I pass the following: ORDER The appeal is accepted. The impugned judgment is set aside. The learned Sessions Judge is directed to examine the accused under Section 313 Cr.P.C., in the light of observations made herein and in accordance with law. If the accused desires, they shall be provided an opportunity to lead defence evidence. Thereafter, the learned Sessions Judge shall hear the learned counsel for parties and decide the case on merits. This exercise shall be completed within a period of three months from the date of communication of this order.