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2013 DIGILAW 212 (PNJ)

Dila Ram v. State of Punjab

2013-02-18

RANJIT SINGH

body2013
JUDGMENT Mr. Ranjit Singh, J.: - This revision is directed against the order passed by Additional Sessions Judge, Mohali, who has set aside the conviction of the respondent recorded by the trial Court for offences under Sections 279 and 304-A IPC. While deciding the appeal filed by the petitioner, the appellate Court has remanded the case for retrial to the trial Court on the ground that some of the incriminating circumstances and evidence appearing against the petitioner was not put to him while examining him under Section 313 Cr.P.C. 2. The petitioner, Dila Ram, is accused of having caused an accident while driving tanker when he while overtaking the scooter at fast speed hit the scooter. The scooterist fell down and received head injury and died at the spot. The driver of the tanker had stopped this vehicle after covering some distance but thereafter ran away. The complainant, who is brother of the deceased could note down the number and identified the driver as well. The petitioner was, accordingly, arrested and prosecuted for offences under Sections 279 and 340-A IPC. The trial Court after recording the evidence of six material witnesses found the petitioner guilty of the charge and sentenced him as well. The petitioner filed appeal against his conviction and sentence. 3. The petitioner of course has pleaded his false implication. He has also denied all the incriminating circumstances appearing in evidence produced by the prosecution. The appellate Court otherwise did not find much fault but came to conclude that conviction and sentence imposed on the petitioner could not be sustained on the ground that while recording the statement of petitioner under Section 313 Cr.P.C., the trial Court did not put some incriminating evidence to the petitioner and, thus, did not obtain his explanation on those portion of the evidence. The appellate Court found that the trial Court had put limited part of the prosecution evidence. The Court, accordingly, observed that it was essential to put certain material facts allegedly constituting the commission of offence by the petitioner, which appeared in evidence against him. It is noticed that the trial Court did not even question the petitioner that he was driving the offending vehicle on that particular day or that he was driving the same in a rash and negligent manner. It is noticed that the trial Court did not even question the petitioner that he was driving the offending vehicle on that particular day or that he was driving the same in a rash and negligent manner. The petitioner was not even questioned if he had overtaken the scooter and that his vehicle hit the scooter driven by the deceased. The appellate Court found that the trial Court had not even put the evidence of occurrence to the petitioner. The petitioner was only confronted with the steps taken by the police during investigation. 4. Main purpose for recording the statement of the accused is noticed and thereafter the Court found that the conviction of the petitioner, as recorded, cannot be sustained. After allowing the appeal, the appellate Court thought it appropriate to remand the case back to the trial Court with the direction to record the statement of the accused under Section 313 Cr.P.C. in a proper manner and proceed with the case afresh as per law. The petitioner was directed to appear before the trial Court. Against this order, the petitioner has filed this revision petition. 5. This Court issued notice of motion and as an interim measure directed the trial Court not to pass the final order while the revision petition is pending before this Court. 6. The question to be considered is whether it is fair for the appellate Court to remand the case for retrial because of some failure on the part of trial Court to put all the incriminating evidence and material to the petitioner, who was an accused. The counsel for the petitioner is justified in submitting that petitioner cannot be made to suffer for the fault, if any, committed by the trial Court in not putting incriminating circumstances and the evidence to the petitioner. It is not in dispute that if incriminating circumstances and the evidence are not put to an accused to obtain his explanation it leads to a great prejudice to an accused. The prayer, accordingly, is that the petitioner would deserve an acquittal on this ground and so the counsel would find fault with the action of the appellate Court to remit the case back for retrial. The prayer, accordingly, is that the petitioner would deserve an acquittal on this ground and so the counsel would find fault with the action of the appellate Court to remit the case back for retrial. As per the counsel, the prejudice is caused to the petitioner, his conviction, as recorded by the trial Court, has already been set aside being not sustainable and the prosecution now, at this stage, cannot be permitted to fill in the lacunas that has remained in the case of prosecution. 7. Somewhat similar issue arose before this Court in the case of Balbir versus State of Haryana, [2010(3) Law Herald (P&H) 2244] : 2010 (1) R.C.R. (Criminal) 449. This was a case under the Food Adulteration Act and the conviction of the petitioner therein had been recorded under Section 16 (1)(a)(i) of the Act. The petitioner therein was found selling adulterated mustard oil. In the appeal filed against his conviction, the accused petitioner had taken up the plea that the report of CFL was not put to him under Section 313 Cr.P.C. and, therefore, such evidence could not be used for the purpose of conviction. The appellate Court had remanded the case back for re-trial. This Court set aside the order directing re-trial in revision as it would lead to allowing the prosecution to fill in the lacuna in its case. It was noticed that the accused had faced protracted trial and faced the agony on that count and the conviction was, accordingly, set aside. 8. It is settled position that the evidence, which is not put to the accused while recording his statement under Section 313 Cr.P.C., would not be open to be used for basing his conviction. In this regard, reference can be made to the case of Mool Chand versus The State of Haryana, 1984 (1) CLR 265. While deciding the case of Balbir (supra), this Court has made detailed reference to number of precedents like the case of Makhan Jivan and others v. State of Gujarat, AIR 1971 Supreme Court 1797. The effect of noncompliance with the provisions of Section 342 Criminal Procedure Code (now Section 313 Criminal Procedure Code), it is observed that it is not sufficient compliance with the Section to generally ask the accused that having heard the prosecution evidence what he has to say about it. The effect of noncompliance with the provisions of Section 342 Criminal Procedure Code (now Section 313 Criminal Procedure Code), it is observed that it is not sufficient compliance with the Section to generally ask the accused that having heard the prosecution evidence what he has to say about it. The accused is to be questioned separately about each material circumstance which is intended to be used against him. It is to be noticed that every error or omission may not necessarily vitiate the trial. The error of type which fall within the category of curable irregularities may not vitiate the trial and further the question whether the trial has been vitiated depends in each case upon the degree of error and upon the prejudice that is caused or is likely to be caused to the accused. In this case, the report was considered rightly to be material which ought to have been put to the petitioner. The appellate Court has found it so and sentence awarded was held liable to be set aside. 9. In Makhan Singh v. State of Punjab, 1992 (2) RCR (Crl.) 109, the Court had noticed that the remanding the case back for recording the statement of the accused would tantamount to allowing the prosecution to fill in the lacuna, which could not legally be done. The relevant observations in this regard are as under:- “ Here, although it was put to the accused that he had been secured on the spot and that from the jhola carried by him poppy husk weighing 5 kilograms was recovered. But it was nowhere put to him that on seeing the police he had made good his escape after throwing the jhola containing the contraband property and that he was subsequently arrested on Ist December, 1984. This lapse on the part of the trial Magistrate would be violative of the guarantee of personal explanation given to an accused person under Section 313 Cr.P.C. Hence, conviction of the petitioner is unsustainable and, therefore, has to be set aside on this ground alone. Remanding the case back to the learned trial Magistrate for re-recording the statement of the accused under Section 313 Cr.P.C. would tantamount to allowing the prosecution to fill in the lacuna which could not be legally done.” 10. Similar view is expressed by this Court in Shyam Lal v. State of Haryana, 1986 (1) RCR (Criminal), 555. Remanding the case back to the learned trial Magistrate for re-recording the statement of the accused under Section 313 Cr.P.C. would tantamount to allowing the prosecution to fill in the lacuna which could not be legally done.” 10. Similar view is expressed by this Court in Shyam Lal v. State of Haryana, 1986 (1) RCR (Criminal), 555. In this case also, sending the case back for retrial was held unjustified on the ground that it would lead to allowing the prosecution to fill in the lacuna in its case. The period that had elapsed in the process was also considered in this case. It was observed that remand of the case for retrial would further prolong the trial and, accordingly, retrial was not permitted. 11. In Sardul Singh v. The State of U.T. Chandigarh, 1986 (2) RCR (Crl.) 409, the order remanding the case was set aside when more than six years had elapsed after initiation of prosecution. The Court found that it is not conducive and in the interest of justice to order retrial. In this case also, the material facts were not put to the accused under Section 313 Criminal Procedure Code. Reference here can also be made to the case of Machander v. The State of Hyderabad, 1956 Punjab Law Reporter 163. The Court, in this case, was considering the issue whether the case could be remanded back on the ground that some material questions were not put to accused while being examined under Section 342 of the Criminal Procedure Code, which is now Section 313 Cr.P.C. has observed as under:- “ We were asked to reopen the question and, if necessary to remand the case. But we decline to do that. Judges and Magistrates must realise the importance of the examination under Section 342 of the Criminal Procedure Code and this Court has repeatedly warned them of the consequences that might ensue in certain cases. The appellant was arrested in December, 1950 and has been on, his trial one way and another ever since, that is to say, for over 4 ½ years. We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detection of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. Except in clear case of guilty, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repair gaps in his defence which he could and ought to have made in the lower courts. The scales of justice must be kept on an even balance whether for the accused or against him, whether in favour of the State or not and one board rule must apply in all cases.” 12. As is observed by the Hon’ble Supreme Court, what is required to be seen is that the accused person is not indefinitely harassed and he must be given an impartial trial and only except where the error is purely technical, the forces against the accused should not be permitted to repair the effect of their bungling. It is also noticed with much justification that the accused can also then seek permission to repair the gaps left in his defence, which he could and ought to have made good in the lower Court. It is in this context observed that the scales of justice must be kept on an even balance whether against or in favour of the accused or State. 13. In view of the law laid down above, it will be reasonably clear that the essential material, which is not put to the accused will lead to prejudice the defence and such a piece of evidence or a material cannot be used against the accused for basing his conviction. 13. In view of the law laid down above, it will be reasonably clear that the essential material, which is not put to the accused will lead to prejudice the defence and such a piece of evidence or a material cannot be used against the accused for basing his conviction. Once it is found that the accused person is to put some prejudice on account of his faulty examination under Section 313 Cr.P.C., it is required to be seen as to what would be effect of the same. If the error is minor irregularity then it may not go to vitiate the trial. However, where incriminating circumstances appearing in evidence is such which is material, and the same is not put to the accused then it certainly leads to his prejudice. In the case of Balbir (supra), this Court found that the course adopted by the appellate Court in remanding the case was not fair. The relevant observation in this regard is as under:- “ What course then would be available with the Court dealing with the situation is the question that basically arise in this case. The plea of prosecution is that retrial of the petitioner as directed by the appellate Court is the right course of action which is strongly and vehemently opposed by the counsel for the petitioner to say that it will not only go to fill in the lacuna in the prosecution case but would be a course which will not be fair to the accused/petitioner on account of the delay and the protracted trial that he has faced. It is possible to view that the Courts have always taken into consideration the delay in criminal trial while deciding about the directions to order retrial of any accused person. Invariably, the order of retrial has been interfered with by the Court on the ground that the accused persons have faced prosecution for a considerable period. Sufficient precedents in this regard have been noticed above. It will be possible to view that delay in prosecuting an accused is a vital aspect required to be taken into consideration while ordering his retrial.” 14. In the present case, the appellate Court has found that some very material circumstances and incriminating evidence were not put to the petitioner. Sufficient precedents in this regard have been noticed above. It will be possible to view that delay in prosecuting an accused is a vital aspect required to be taken into consideration while ordering his retrial.” 14. In the present case, the appellate Court has found that some very material circumstances and incriminating evidence were not put to the petitioner. The Court found that the petitioner has suffered a serious prejudice on that count and his conviction, as recorded, was held not sustainable. The finding of guilty recorded by the trial Court has been set aside as well the sentence. Undoubtedly, thus, the circumstances, which the trial court failed to put to the accused/petitioner, to obtain his information, are material effecting the order of conviction. The retrial under the circumstance may not be very conducive. 15. Thus, incident took place on 09.02.2004. The petitioner faced a protracted trial for nearly 7 years when he was convicted for this offence on 17.09.2010. Thereafter, he filed an appeal which was decided on 14.03.2011. The appellate Court has remanded the case and the petitioner is still facing the prosecution and ordeal of retrial. Requiring him to face retrial under these circumstances which are basically to fill in the lacunas left in the case of prosecution due to the petitioner having not been questioned properly under Section 313 Cr.P.C. would be nothing but to further prolong his agony. It is reasonable to hold that it would not be fair now to direct retrial of the petitioner on this ground or on account of delay as well. The retrial, if allowed, would certainly put the petitioner to prejudice. 16. The ratio of law laid down in the case of Machander (supra) would apply to the facts of this case as the petitioner would have to be given fair and impartial trial and the forces against the accused should not be permitted to repair the effect of their bungling. The scales of justice are to be kept on even balance whether against or in favour of the accused. On the basis of the ratio of law in this case, it cannot be said that the order directing retrial of the petitioner in the facts and circumstances of the case, would be fair and as such it cannot be sustained. The order passed by he appellate Court remanding the case for retrial is set aside. 17. On the basis of the ratio of law in this case, it cannot be said that the order directing retrial of the petitioner in the facts and circumstances of the case, would be fair and as such it cannot be sustained. The order passed by he appellate Court remanding the case for retrial is set aside. 17. Though the appellate Court has set aside the conviction of the petitioner but it would be appropriate for the appellate Court to consider the appeal of the petitioner on the available state of evidence and to see if the conviction can be sustained on the basis of evidence available on record. It would be essential as the order passed by the appellate Court to direct retrial has been set aside. 18. The revision is, accordingly, allowed in the above terms. The case would go back to the appellate Court to consider the appeal afresh.