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2014 DIGILAW 321 (PAT)

Suresh Yadav v. State of Bihar

2014-03-06

I.A.ANSARI, SAMARENDRA PRATAP SINGH

body2014
JUDGMENT I.A. Ansari & S.P. Singh, JJ. Considering the fact that both these appeals have been admitted and both sides have agreed that the appeals may be heard and disposed of, we have decided to take up the appeals for hearing and decision. 2. We have heard Mr. Baxi S.R.P. Sinha, learned Senior Counsel, and Mr. Sumeet Kumar Singh, learned Counsel, appearing for the appellants. Heard also Mr. G.P. Jaiswal and Mr. Abhimanyu Sharma, learned Additional Public Prosecutor for the State. 3. Both the appeals, namely, Criminal Appeal (DB) Nos. 664 of 2013 and 471 of 2013, are directed against the judgment, dated 29.04.2013, passed by the learned 2nd Additional Sessions Judge, Bagaha (West Champaran), in Sessions Trial No. 389 of 1998, whereby both the appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code. Following their conviction, as mentioned hereinbefore, the appellants have been sentenced, vide the impugned order, dated 04.05.2013, to undergo imprisonment for life and pay fine of Rs. 10,000/- (Ten thousand) each and, in default of payment of fine, undergo rigorous imprisonment for a period of one year. 4. Without entering into the merit of the conviction of the appellants, what attracts our attention, most prominently, is that P.W.1 and P.W.3 are the two witnesses, whose evidence have become substantially foundation for conviction of the appellants. Out of these two witnesses, P.W.1 was examined, at the trial, on 15.04.2005, as a witness. Though the learned counsel for the accused was present, at the trial, on 15.04.2005, an adjournment was sought and allowed on payment of Rs.50/- (Fifty). On 27.04.2005, while P.W.1 and the accused were present in the trial Court, the counsel for the accused did not appear and P.W.1 was, therefore, not cross-examined. This apart, no petition was filed by defence seeking time to cross-examine P.W.1 and, hence, P.W.1 was discharged. 5. So far as P.W.3 is concerned, he was examined, at the trial, on 19.04.2006. Though he was cross-examined, his cross-examination remained incomplete. Later on, P.W.3 did not appear. 6. Thereafter, on 28.05.2006, informant filed a petition stating to the effect that witnesses were being intimidated and were not being allowed to fearlessly give evidence and, on 23.07.2005, an order was passed by the learned trial Court declining to allow the defence to recall P.W.1 for cross-examination. 7. Later on, P.W.3 did not appear. 6. Thereafter, on 28.05.2006, informant filed a petition stating to the effect that witnesses were being intimidated and were not being allowed to fearlessly give evidence and, on 23.07.2005, an order was passed by the learned trial Court declining to allow the defence to recall P.W.1 for cross-examination. 7. What surfaces from the above discussion is that though P.W.1 was never cross-examined by the defence and P.W.3 was partly cross-examined, the evidence of P.Ws. 1 and 3 have been discussed and relied upon, substantially, by the learned trial Court. 8. We find that on 15.04.2005, i.e., the date on which P.W1 was examined as a witness, learned counsel for the appellants sought for adjournment and this prayer was allowed, though on payment of cost; but on 27.04.2005, while P.W.1 and the accused were present, learned counsel for the accused was absent for no assigned reason. P.W.1, thus, remained without being cross-examined by the defence. 9. Coupled with the above, it is worth pointing out that because of the fact that no petition had been filed by the defence, on 27.04.2005, seeking time to cross-examine P.W. 1, learned trial Court discharged P.W. 1. 10. There is no indication from the orders passed by the learned trial Court that the learned trial Court tried to find out from the accused-appellants as to why their counsel had not appeared to cross-examine P.W.1. This apart, in a serious case of murder, it was the duty of the learned trial Court to appoint, at the expenses of the State, a counsel for the accused so that P.W.1 could have been cross-examined. This step was, however, not taken. 11. Coming to P.W.3, we notice that the cross-examination of P.W.3 remained incomplete and though he never appeared thereafter, his evidence has been considered against the appellants merely because the informant had filed a petition stating to the effect that witnesses were being intimidated and were not being allowed to fearlessly give evidence. 12. If what the informant had alleged were true, it was within the ambit of the learned trial Court’s power to have cancelled the bail of the appellants, but the appellants could not have been penalized by not making available to them P.W.3 for cross-examination. 13. 12. If what the informant had alleged were true, it was within the ambit of the learned trial Court’s power to have cancelled the bail of the appellants, but the appellants could not have been penalized by not making available to them P.W.3 for cross-examination. 13. Having considered the above aspects, which are glaringly noticeable, we are of the firm view that because of the omission to provide, at the expenses of the State, a counsel to defend the appellants so as to enable cross-examination of P.W.1, prejudice has been caused to the appellants. This apart, the evidence of P.W.3 could not have been considered, at all, against the appellants without making P.W.3 available for cross-examination. This was legally impermissible, for, evidence, given in examination-in-Chief, has to be tested by cross-examination and if a given witness does not withstand the test of cross-examination, his evidence cannot be readily relied upon unless convincing reason is assigned for placing reliance on the evidence of such a witness. 14. Moreover, we notice that the learned Trial Court has not put to the appellants various incriminating pieces of evidence, which became the basis of conviction of the appellants. If the accused-appellants are not properly examined under Section 313 of the Code of Criminal Procedure, none of the incriminating pieces of evidence can be relied upon by this Court, for, placing of reliance on an incriminating piece of evidence, which had not been put to the appellants, would cause serious prejudice to the accused-appellant. At the same time, if the accused-appellants are given the benefit, because of the vital omission or lapse on the part of the learned Trial Court, it would cause serious prejudice to the prosecution inasmuch as prosecution cannot be made to suffer, because of the lapse on the part of the learned Trial-Court. 15. The remedy, therefore, lies, in our considered view, in remanding the case to the learned Trial Court for proper examination of the accused-appellants under Section 313 of the Code of Criminal Procedure and, then, to come to its own judicious conclusion depending on what surfaces from the record. 16. 15. The remedy, therefore, lies, in our considered view, in remanding the case to the learned Trial Court for proper examination of the accused-appellants under Section 313 of the Code of Criminal Procedure and, then, to come to its own judicious conclusion depending on what surfaces from the record. 16. We may refer, at this stage, to the case of Sharad Birdhi Chand Sarda v. State of Maharashtra (AIR 1984 SC 1662), wherein their Lordships have succinctly laid down the law on the above subject as follows: “As these circumstances were not put to the Appellants in their statement under Section 313 of the Code of Criminal Procedure they must be completely excluded from consideration because the Appellants did not have any chance to explain them. This has been consistently held by this Court as far back as 1953, wherein the case of Hata Singh Bhagat v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstances in respect of which an accused was not examined under Section 342 of the Code of Criminal Procedure cannot be used against him. Ever since this decision there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 of Section 313 of the Criminal Procedure Code, the same cannot be used against him....It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court in this view of the matter the circumstances, which were not put to the Appellant in his examination under Section 313 of the Code of Criminal Procedure have to be completely excluded from consideration.” (Emphasis is supplied) 17. Even in the case of State of Maharashtra v. Sukdeo Singh and Anr. ( AIR 1992 SC 2100 ), their Lordships have observed as follows: “The trial judge is not expected, before he examined the accused under Section 313 of the Code, to sift the evidence regarding any incriminating material to determine whether or not to examine the accused as that material. To do so, would be to prejudice the evidence without hearing the prosecution under Section 314 of the Code. To do so, would be to prejudice the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon.” (Emphasis is added) 18. It is, now, settled beyond dispute by a catena of judicial pronouncements that every circumstance, on which a trial Court relies upon to hold an accused guilty, must be put to the accused person and his answer sought thereto. The very purpose of Section 313 Code of Criminal Procedure will stand defeated if a trial Court, without asking for explanation of an accused on the circumstances, which appear to it to be incriminating, bases its conviction on such circumstances. It is in this view of the matter that the examination of an accused person, under Section 313 Code of Criminal Procedure, is considered a solemn act of a trial Court and it cannot, and must not, be treated as an empty formality. 19. In the case at hand, the incriminating circumstances, spoken to by each prosecution witness, on which the learned trial Court has relied upon, ought to have been put to the accused-appellants, when they were being examined under Section 313(1)(b) of the Code of Criminal Procedure and the same having not been done, learned trial Court ought not to have based its findings on such incriminating pieces of evidence. In fact, it appears to us that the learned trial Court had not put to the accused-appellants, in the present case, even the sum-total of the prosecution's case, which, in our considered view, does not satisfy the requirements of law. 20. Situated thus, one has no option but to conclude that if the accused-appellants are not examined under Section 313(1)(b) of the Code of Criminal Procedure as warranted by law, it will deny to the accused-appellants a valuable right vested in him by law to properly and effectively project their defence. At the same time, prosecution, to our mind, cannot be made to suffer solely for the lapse on the part of the learned trial Court in properly examining the accused-appellants under Section 313(1)(b) of the Code of Criminal Procedure. We are, therefore, clearly of the view, if we may reiterate, that this case needs to be remanded to the learned trial Court. 21. We are, therefore, clearly of the view, if we may reiterate, that this case needs to be remanded to the learned trial Court. 21. Ordinarily, we would have re-appreciated the entire evidence on record to arrive at a legally correct finding; but in the case at hand, since we have found that before the evidence on record is re-appreciated in these appeals, further examination of the accused-appellants, under Section 313(1)(b) of the Code of Criminal Procedure, in accordance with the requirements of law contained in that behalf, is imperative and that the case, for this purpose, needs to be remanded back to the learned Court below, we do not wish to enter into the merit of the various grounds on which the judgment has been impugned in these appeals and we do not even remotely wish to make any observation about the reliability of the relevant evidence on record so that the learned trial Court does not get fettered by any of the observations of this Court on any piece of evidence on record and it may feel free to come to its own independent findings. 22. Because of what has been pointed out above, we are clearly of the view that in the facts and attending circumstances of the present case, the impugned judgment of conviction cannot be sustained and the case needs to be remanded to the learned trial Court with direction to recall P.W.1 and P.W.3 and provide effective opportunity to the appellants to cross-examine P.Ws.1 and 3. For this purpose, learned trial Court shall, if so required, appoint one or more Counsel at the expenses of the State. This apart, learned trial Court shall examine the accused-appellants under Section 313(1)(b) of the Code of Criminal Procedure on every incriminating piece of evidence. 23. In the result and for the foregoing reasons, the impugned conviction of the appellants by the judgment, under appeal, as well as the impugned order of sentence are hereby set aside and the case is remanded to the learned trial Court for disposing of the same in accordance with law keeping in view the observations made by this Court in the preceding paragraphs of this judgment. 24. 24. Coming to the question as to whether the appellants shall, on account of the fact that their conviction has been set aside, be set at liberty, we cannot ignore the fact that P.W.3 never turned up for cross-examination and the informant brought it to the notice of the learned trial Court that the witnesses were being intimidated and were not being allowed to fearlessly give evidence. 25. In the circumstances indicated above, it would be appropriate to keep, in custody, the accused-appellants, whose conviction and the consequential sentence have been set aside, until the time their trial is concluded and judgment is pronounced. The release of the accused-appellants shall, therefore, be governed by the outcome of the trial, which shall be held, on remand, in terms of the directions given above and until the time the trial is concluded, the accused-appellants shall be detained in custody unless, otherwise, directed by this Court. 26. The learned trial Court is also directed to expeditiously deal with the case and dispose of the same in accordance with law within a period of four months from the date of receipt of the Lower Court Records along with a copy of this judgment and order. 27. The Registry shall send back the Lower Court Records along with a copy of this judgment and order.