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2015 DIGILAW 11 (MAN)

State of Manipur v. Khamba Singh

2015-01-20

KH.NOBIN SINGH, LAXMI KANTA MOHAPATRA

body2015
JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. Both the appeals are directed against an order of acquittal recorded by the learned Addl. Sessions Judge, FTC Manipur East in ST Case No. 5/04/13/05. Government Cril. Appeal No. 2/2010 has been filed by the State of Manipur challenging the order of acquittal and Cril. Appeal No. 1 of 2010 has been filed by the daughter of the deceased challenging the very same order. 2. The case of the prosecution is that on 4.3.2002 at 7.30 PM one Bramhacharimayum Dhananjoy (informer) reported in writing to the Officer in-Charge, Imphal P.S. that his elder brother, the deceased, had left home at about 7 pm on 3.3.2002 to witness a musical concert at Keishampat Leimajam Leikai but did not return home in the night. Later, he was found killed by some unknown persons with cut injuries on his neck at the Ingkhol (homestead land) of one Phurailatpam Bedgarma Sharma of Sagolband Meino Leirak at about 6:30 AM of 4.3.2002. On the basis of such allegation contained in the FIR, a case was registered for commission of offence u/s 302 and 34 IPC and investigation was undertaken. After completion of the investigation, charge sheet was submitted against the respondent-accused alone for commission of offence under Section 302 of IPC. 3. In course of the trial, 22 witnesses were examined on behalf of the prosecution and none was examined on behalf of the defence. On analysis of the evidence adduced on behalf of the prosecution, the learned Addl. Sessions Judge, FTC, Manipur East did not find any material to record an order of conviction and accordingly acquitted the respondent of the charge. 4. In the present appeal, Shri R.S. Reisang, learned Sr. GA pointed out a serious defect in the procedure adopted by the learned Addl. Sessions Judge while conducting the trial. It was submitted by Mr. R.S. Reisang, learned Sr. GA that the statement of the accused was not recorded u/s 313 Cr.P.C. after closure of evidence from the side of the prosecution. We, therefore, without going into the merit of the case, examined the order sheets and were shocked to find that the learned Addl. Sessions Judge, FTC has adopted a procedure in conducting the trial unknown to law. We would, therefore, like to refer to several dates relevant for the purpose of deciding this question. 5. We, therefore, without going into the merit of the case, examined the order sheets and were shocked to find that the learned Addl. Sessions Judge, FTC has adopted a procedure in conducting the trial unknown to law. We would, therefore, like to refer to several dates relevant for the purpose of deciding this question. 5. The first witness, PW-1, on behalf of the prosecution was examined on 11.6.2004. The I.O. of the case was examined as PW-20 on 6.1.2006. After examination of the I.O. was over, the trial was fixed to 7.1.2006 for cross-examination of the I.O. On 7.1.2006 PW-20, the I.O., was cross-examined and a prayer was made on behalf of the prosecution to close evidence from the side of the prosecution. Accepting such prayer, the learned Addl. Sessions Judge, FTC fixed the next date to 10.1.2006 for recording statement of the accused-respondent u/s 313 Cr.P.C. The statement of the accused-respondent was recorded u/s 313 Cr.P.C. on 10.1.2006. Thereafter, the case was taken up on 13.1.2006 and the learned Addl. Sessions Judge, fixed the case to 19.1.2006 for final argument. The learned Addl. PP concluded his argument on 25.1.2006 and the case was fixed for 28.1.2006 for argument from the side of the defence. Thereafter, the case suffered some adjournments and on 20.3.2006 the learned counsel appearing for the defence concluded his argument. Thereafter, the case was again fixed to 31.3.2006 for reply on behalf of the Addl. P.P. The case again suffered certain adjournments and on 17.7.06 when it was taken up, the learned Addl. Sessions Judge felt necessity of examining one of the charge sheet witness, namely Smt. Athokpam Ningol Senjam Apabi @ Tababi Devi, and issued summon. The said charge sheet witness was examined and cross examined on 27.9.2006 and was discharged. The learned Addl. Sessions Judge again, by order dt. 4.10.2006, directed appearance of the then JMIC, Imphal to be examined, she having recorded statement of P.W.21 u/s 164 Cr.P.C. The said JMIC was examined as PW-22 on 18.10.2006. After she was discharged the learned Addl. Sessions Judge fixed the case to 26.10.06 for further examination of any other witness on behalf of the prosecution. The prosecution having not produced any other witness, the learned Addl. Sessions Judge closed the evidence from the prosecution side by order dt. 26.10.06 and fixed the case to 7.11.2006 for argument. After she was discharged the learned Addl. Sessions Judge fixed the case to 26.10.06 for further examination of any other witness on behalf of the prosecution. The prosecution having not produced any other witness, the learned Addl. Sessions Judge closed the evidence from the prosecution side by order dt. 26.10.06 and fixed the case to 7.11.2006 for argument. In between 26.10.06 to 25.9.2008 the case suffered several adjournments and ultimately the argument from the side of prosecution as well as defence was concluded on 25.9.2008 and the learned Addl. Sessions Judge fixed the case to 26.9.08 for delivery of judgment. Again, the case suffered several adjournments on different grounds and the impugned judgment was delivered on 26.2.09. 6. From the above, it is clear that after examination of 20 witnesses on behalf of the prosecution, by order dt. 7.1.2006, the case had been fixed to 10.1.06 for examination of accused u/s 313 Cr.P.C. On 10.1.06 the statement of the accused was recorded u/s313 Cr.P.C. and case was posted to 19.1.06 for argument. However, before conclusion of the argument, the court felt necessity of examination of another charge sheet witness and consequently not only the charge sheet witness was examined as PW-21 but also the JMIC who had recorded statement of P.W.21 u/s 164 Cr.P.C. was also examined as PW-22. It is further clear that after the accused was examined u/s 313 Cr.P.C. on 10.1.06, 2(two) more witnesses were examined on behalf of the prosecution, no further statement of the accused was recorded u/s 313 Cr.P.C. 7. We have examined the evidence of PW-21 and 22. Though PW-21 has turned hostile, evidence of a hostile witness cannot be thrown to dustbin just because the witness turned hostile. The evidence of PW-22 creates a doubt about veracity of the statement made by PW-21. Therefore, it was the duty of the Addl. Sessions Judge to analyse the evidence of these two witnesses and formulate questions that may be required to be asked to the accused in course of examination under S. 313 Cr.P.C. This exercise has not at all been done by the learned Addl. Sessions Judge. 8. The object of Section 313 Cr.P.C. is to establish a direct dialogue between the Court and the accused. Sessions Judge. 8. The object of Section 313 Cr.P.C. is to establish a direct dialogue between the Court and the accused. If a point in evidence is important against the accused, and conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. The purpose of examination is to bring the substance of accusation to the notice of the accused. The questioning under Clause (1)(a) is discretionary but the questioning under Clause (1)(b) is mandatory, the object being to afford an opportunity to the accused to personally explain any circumstances, appearing in evidence against him. S. 313 embodies fundamental principle of 'Audi Alteram Partem.' The provisions of the Section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain the incriminating material against him. The examination of the accused under S. 313 Cr.P.C., is not a mere formality, the questions put and answer given have great use. The accused must be given opportunity to explain each and every circumstance appearing in evidence against him. S. 313 Cr.P.C. prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the fact and circumstances appearing against him in the prosecution's evidence and that opportunity is a valuable one and cannot be ignored. 9. On reading of the Section 313 Cr.P.C., it is also clear that sub-section (1)(a) gives a discretion to the Court to put any question to the accused at any stage if it is found necessary. But sub-section (1)(b) cast a duty on the court to examine the accused after examination of all the witnesses for the prosecution. The word 'shall' makes it mandatory to examine the accused after all the witnesses for the prosecution have been examined. Reference be made to a decision of the Apex Court in the case of State of Maharashtra Vs. Sukhdeo Singh & Anr. Reported in : AIR 1992 SC 2100 . The relevant portion of the judgment is quoted below: "50. S. 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. Sukhdeo Singh & Anr. Reported in : AIR 1992 SC 2100 . The relevant portion of the judgment is quoted below: "50. S. 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words 'shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under S. 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The stage of examination of the accused under Cl.(b) of sub-sec. (1) of S. 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under S. 313, the learned Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After S. 313stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The learned trial Judge is not expected before he examines the accused under S. 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under S. 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. To do so would be to pre-judge the evidence without hearing the prosecution under S. 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under S. 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accuse No. 5 and hence the learned trial Judge was not justified in examining the accused under S. 313 of the Code." 10. In the case of Janak Yadav & Ors vs. State of Bihar reported in 1999 Supreme Court case (Cri) 558 the Apex Court also took the same view and observed that Section 313 Cr.P.C. prescribes a procedural safeguard for an accused facing trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecution evidence. That opportunity is a valuable one and cannot be ignored. 11. As discussed above, in the present case though the statement of the accused was recorded u/s 313 Cr.P.C. after examination of 20 witnesses on behalf of the prosecution, after recording of such statement of the accused, two more witnesses were examined on behalf of the prosecution. It was, therefore, the duty of the court to again record statement of the accused u/s 313Cr.P.C. after closure of the evidence of those two witnesses who were examined as PWs 21 and 22. Having not done so, there has been violation/contravention of mandatory provision contained in Section 313 Cr.P.C. 12. We fail to understand as to how the learned Addl. Sessions Judge, who has put so much of experience in conducting cases as a Presiding Officer, has failed to note such mandatory provision contained in Section 313 Cr.P.C. This only shows lack of knowledge of law on the part of the learned Addl. Sessions Judge. We fail to understand as to how the learned Addl. Sessions Judge, who has put so much of experience in conducting cases as a Presiding Officer, has failed to note such mandatory provision contained in Section 313 Cr.P.C. This only shows lack of knowledge of law on the part of the learned Addl. Sessions Judge. While dealing with the case of this nature where the offence alleged is under section 312 of IPC, it is the duty of the Presiding Officer to afford opportunity to the accused available under law. 13. Since proper procedure has not been followed by the learned Addl. Sessions Judge, we have no other option except remitting the matter back to the learned Addl. Sessions Judge for disposal afresh as has been held in the case of Janak Yadav (supra). It is not necessary for us to remit the matter back to the learned Addl. Sessions Judge for retrial. We, therefore, remit the matter back to the learned Addl. Sessions Judge to proceed from the stage where statement of the accused was required to be recorded u/s313 Cr.P.C. Since evidence for the prosecution has been closed, the learned Addl. Sessions Judge shall proceed with examination of the accused u/s 313 Cr.P.C. again and thereafter proceed in accordance with law. 14. L.C. records be immediately remitted back to the trial court to complete the trial within 6(six) months from the date of receipt of the records.