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2015 DIGILAW 349 (JHR)

Krit Sao v. State of Jharkhand

2015-03-10

APARESH KUMAR SINGH, VIRENDER SINGH

body2015
Judgment Virender Singh, C.J. The instant Jail Appeal is filed by one Krit Sao (hereinafter to be referred to as ‘accused’) against the judgment of learned Additional Sessions Judge, Palamau, Daltonganj dated 24.07.2002 whereby he has been convicted under Section 302/324 I.P.C. and sentenced to undergo rigorous imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for 3 years for the offence under Section 324 I.P.C.. Both the sentences, however, have been ordered to run concurrently. 2. It needs to be mentioned here that along with the accused, his two co-accused, namely, Bishwanath Sao, his son and Bimali Devi, his wife had also faced the trial, but they have since been acquitted by the Trial Court. State has questioned the said acquittal by filing Acquittal Appeal No.13 of 2002, which stands dismissed by the Court, confirming their acquittal, vide separate judgment dated 6th February, 2015, whereas the instant appeal was reserved for orders. 3. Accused is stated to be in custody for the last 14 years, as such priority was given to the instant appeal. At present, the accused is nearing 70 years as stated by his counsel at the Bar. 4. Accused is the real brother of P.W. Mathura Sao son of Ganesh Sao, the first informant, whose statement was recorded on 19th of June, 2001 at 08.30 a.m. in the police station concerned. It is alleged therein that on the previous night at about 08.00 p.m. when he was having tea with his family members, i.e., his wife Jasmatia Devi (for short ‘deceased’) daughter Kalawati Kumari and son Sanjay Sao, the accused alongwith his wife Bimali Devi and his son Bishwanath Sao (already acquitted) entered their house and started assaulting with Fasuli as a result of which Sanjay Sao got injured and he (Sanjay Sao) fled away from the place of occurrence. Thereafter his daughter P.W. Kalawati Kumari was also injured by accused. It is further alleged that thereafter Bimali Devi and Bishwanath Sao caught hold of the deceased and she was assaulted by the accused on her neck, head, chest, back and on the hand. She started screaming. Balram Prasad and Phulwa Devi reached the spot and caught hold of the accused persons, but, they also sustained injuries. The motive projected for the occurrence is some property dispute. She started screaming. Balram Prasad and Phulwa Devi reached the spot and caught hold of the accused persons, but, they also sustained injuries. The motive projected for the occurrence is some property dispute. Upon this information, formal FIR 49/2001 came to be registered in Police Station Chhattarpur Palamau under Sections 302/324/34 I.P.C. and the investigation started, which, on culmination, resulted into filing of the challan against all the three accused, who were, accordingly, charged under Section 302/324/34 I.P.C. and ultimately, two accused, namely, Bimali Devi and Bishwanath Sao, were acquitted and the accused convicted and sentenced under Sections 302/324 I.P.C.. 5. The prosecution, in support of its case, has recorded as many as 14 witnesses. Those are: - P.W.1 Sanjay Sao P.W.2 Shamina Devi P.W.3 Fulla Devi P.W.4 Balram Prasad P.W.5 Dulani Sao P.W.6 Surmano Devi P.W.7 Lal Bahadur Barai P.W.8 Mathura Sao P.W.9 Kalawati Kumari P.W.10 Dinesh Kumar Singh P.W.11 Rajan Kumar Chandra P.W.12 Dr. N.C. Agarwal P.W.13 Dr. Ishwar Prasad Sah P.W.14 Sanjay Ram 6. The case of the accused, as one finds from their statement under Section 313 Cr.P.C. is of total denial. 7. While pointing out certain infirmities in the case of the prosecution, vis-à-vis the eye version account and the medical evidence available on record, the same being contradictory in nature, Mr. Naik, learned counsel for the accused has pointed out certain other flaws also with regard to recording of the charge and the examination of the accused under Section 313 Cr.P.C. 8. Learned counsel submitted that if one looks at the charge framed against all the three accused, the date of occurrence is shown as 19th of June, 2001 at 08.30 A.M., whereas the occurrence was of 18th June, 2001 and the time is about 08.00 P.M. Learned counsel submitted that may be subsequently, the time of occurrence is shown to have been corrected as there is overwriting with regard to the timing, but, the date of occurrence remains the same, i.e., 19.06.2001. Learned Counsel submitted that the entire trial faced by all the accused is with regard to the charge of 19th of June, 2001 in which they are allegedly shown to be involved whereas the evidence led is with regard to an occurrence of 18th of June, 2001 and it has caused grave prejudice to the accused, therefore, the entire trial get vitiated. 9. 9. Learned counsel submitted that even if the aforesaid defect in the charge can be taken as an irregularity, whereas it is not, the manner in which the accused has been examined under Section 313 Cr.P.C. is not known to law and this fundamental defect is not curable, resultantly this defect vitiates the entire trial against the accused. According to learned counsel, this defect in examination of the accused can be considered as a good ground for setting aside the conviction and sentence of the accused and remitting the case back to the trial court for examination of the accused under Section 313 Cr.P.C. in the manner it is required to be recorded or in the alternative the accused may be acquitted of the charge on account of his long incarceration of about 14 years, especially when he, at this stage, has attained the age of 70 years. According to learned counsel remanding the case back to the Trial Court for fresh trial from a particular stage, at this juncture, perhaps, would not be in the interest of justice. 10. Learned State Counsel feels himself on a slippery footing so far as defect in examination of the accused under Section 313 Cr.P.C. is concerned. However, with regard to the defect in framing of the charge, vis-à-vis date of occurrence, as pointed out by Mr. Naik, learned State Counsel submits that this defect can not be a ground for vitiating the trial, as during the entire trial, the evidence produced against him was with regard to 18.06.2001 and not 19.06.2001 and even the cross examination done by the accused also indicates that he was quite aware of the date of occurrence at least, i.e., 18.06.2001. According to learned State Counsel, this defect, at least, would not lend any advantage to the accused. 11. On merits of the case, learned State Counsel submitted that the statement of injured witnesses, even if, are somewhat discrepant on certain aspects, but, if taken in totality, which gives built in guarantee of their presence at the scene, cannot be doubted as they are not likely to spare the actual assailant and involve some one else. 11. On merits of the case, learned State Counsel submitted that the statement of injured witnesses, even if, are somewhat discrepant on certain aspects, but, if taken in totality, which gives built in guarantee of their presence at the scene, cannot be doubted as they are not likely to spare the actual assailant and involve some one else. Learned State Counsel submitted that so far as involvement of other two family members of the accused is concerned, acquittal earned by them after their case being found doubtful by the Trial Court itself, has since been confirmed by the Court in a separate Acquittal Appeal No.13 of 2002, the same having been dismissed. He, however, half heartedly, stated that the defect committed by the Trial Court, while examining the accused under Section 313 Cr.P.C. after completion of the prosecution evidence be not considered as such a grave defect so as to disturb the conviction of the accused, as the same, at the most, may be taken as an irregularity. 12. We refrain ourselves from commenting on the merits of the case, so far as evidence of the eye witnesses is concerned, lest, it may be construed as a expression of opinion by the Court below, as in our considered view, the fundamental defect in examination of the accused, by itself, would be a good ground for disturbing the conviction/sentence of the accused. We may state here that the other defect, as pointed by the learned counsel for the appellant in framing the charge with regard to the date, at the most, can be said to be an irregularity, which does not cause any prejudice to the accused so as to vitiate the entire trial on that count alone. The prosecution, however, cannot be given any leverage so far as glaring defect crept in examination of accused is concerned. 13. We would like to record exactly how the accused is examined under Section 313 Cr.P.C. In vernacular it is as under: - iz'u % lQkbZ esa dqN dguk gS \ mÙkj % th ughAa iz'u % vkius lkf{k;ksa dk lk{; lquk \ mÙkj % th gk¡A Signature of the Trial Judge LTI of accused Krit Sao 14. We are really surprised to see the manner in which the accused is examined under Section 313 Cr.P.C. 15. The power to examine the accused is provided in Section 313 Cr.P.C., which reads: - “313. We are really surprised to see the manner in which the accused is examined under Section 313 Cr.P.C. 15. The power to examine the accused is provided in Section 313 Cr.P.C., which reads: - “313. Power to examine the accused-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case; Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b), (2) No oath shall be administered to the accused when he is examined under sub-section(1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.” 16. Examination under Section 313 Cr.P.C. can be put in two parts, the first part under Section 313(1)(a) Cr.P.C. relates to any stage of enquiry or trial, while the second part under 313(1)(b) Cr.P.C. takes place after all the prosecution witnesses are examined and before the accused is called upon to enter upon his defence as entire incriminating evidence, which has been adduced by the prosecution is put to him. The former is particular and optional, but, the later is general and mandatory. 17. The former is particular and optional, but, the later is general and mandatory. 17. In case Usha K. Pillai versus Raj K. Srinivas & Others reported in (1993) 3 SCC 208 , the Hon’ble Supreme Court held that the Court is empowered by Section 313(1)(a) Cr.P.C. to question the accused at any stage of the enquiry or trial, while Section 313(1)(b) obligates the Court to question the accused before he enters his defence or any circumstance appearing in prosecution evidence against him. 18. The object of Section 313(1)(b) Cr.P.C., thus, is to bring the substance of accusation to the accused to enable him to explain each and every circumstance appearing in the evidence against him. The provision, thus, is mandatory and casts a duty on the Court to afford an opportunity to the accused to explain incriminating evidence against him. It cannot be said to be a mere formality as Section 313 Cr.P.C. prescribes a procedural safeguard to an accused and this opportunity is very valuable from the stand point of the accused. Therefore, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case, he will have to meet and thereby an opportunity to him to explain any such point. 19. In case Paramjeet Singh alias Pamma versus State of Uttarakhand reported in (2010) 10 SCC 439 , the Hon’ble Supreme Court in paragraph 22 held as under: - “Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration.” (vide Sharad Birdichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 and State of Maharashtra vs. Sukhdev Singh, (1992) 3 SCC 700 . 20. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration.” (vide Sharad Birdichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 and State of Maharashtra vs. Sukhdev Singh, (1992) 3 SCC 700 . 20. Whether the omission to put the question under Section 313 Cr.P.C. has caused prejudice to the accused vitiating the conviction or not, would be an important aspect for discussion. 21. In State of Punjab versus Hari Singh & Others reported in (2009) 4 SCC 200 , question regarding conscious possession of narcotics was not put to accused when he was examined under Section 313 Cr.P.C. Finding that question relating to possession of contraband being not put to the accused, the Hon’ble Supreme Court held that the effect of such omission had affected the prosecution case vitally, as such the acquittal was confirmed by the Hon’ble Supreme Court. 22. In Kuldip Singh & Others versus State of Delhi reported in (2003) 12 SCC 528 , the Hon’ble Supreme Court held that when an important incriminating circumstance was not put to the accused during examination under Section 313 Cr.P.C., prosecution cannot place reliance on such piece of evidence. 23. There are other set of decisions of Hon’ble Supreme Court where in the facts and circumstances of a particular case, it is held that no prejudice or miscarriage of justice has been caused to the accused. In case Sanotsh Kumar Singh versus State through CBI reported in (2010) 9 SCC 747 , it was held by the Supreme Court on the core issue pertaining to the helmet and the ligature marks on the neck which were put to the doctor, the defence counsel had raised comprehensive arguments before the Trial Court and also before the High Court and the defence was, therefore, alive to the circumstance against the appellant and as such no prejudice or miscarriage of justice had occasioned. 24. 24. In Alister Anthony Pareira versus State of Maharashtra reported in (2012) 2 SCC 648 , in the facts and circumstances of that particular case, it was held by the Hon’ble Supreme Court that not putting to the appellant expressly the chemical analyser’s report and the evidence of the doctor, no prejudice can be said to have been caused to the appellant and he had full opportunity to say what he wanted to say with regard to the prosecution evidence and that the High Court rightly rejected the contention of the appellant-accused in that regard. 25. In a latest judgment handed down by the Hon’ble Supreme Court in case Nar Singh versus State of Haryana reported in 2015 (1) JLJR 36 (SC) while taking into account the objection as to omission to put the question under Section 313 Cr.P.C. before the Appellate Court and the prejudice also shown to have been caused to the accused, the Hon’ble Supreme Court with regard to the courses available to the Appellate Court, while referring to the other judgments on the point in case Shivaji Sahabrao Bobade & Another versus State of Maharashtra reported in (1973) 2 SCC 793 ; State (Delhi Administration) versus Dharampal reported in (2001) 10 SCC 372 ; Asraf Ali versus State of Assam reported in (2008) 16 SCC 328; Ganeshmal Jashraj versus Government of Gujarat & Another reported in (1980) 1 SCC 363 ; briefly summarized in paragraph 30 of the judgment as under: - “(i) Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer; (ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits; (iii) If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh; (iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused. 26. In Nar Singh case (supra), on the question of remitting the matter back to the Trial Court on the ground of non-compliance of mandatory provisions of Section 313 Cr.P.C., many aspects were considered including the custody of the appellant and the Hon’ble Supreme Court, ultimately, observed that it was a case to be remitted to the Trial Court for proceeding afresh from the stage of Section 313 Cr.P.C. so that the accused is given a fair trial. It is observed that the victim of the offence or the accused should not suffer for lapses or omission of the Court as omission to put material evidence to the accused in the course of examination under Section 313 Cr.P.C., prosecution is not guilty of not adducing or suppressing such evidence, it is only the failure on the part of learned Trial Court. 27. In the aforesaid case, the appellant was in custody for about 8 years. 27. In the aforesaid case, the appellant was in custody for about 8 years. Considering the right of the accused to speedy trial being a valuable one, the right of victim’s family and the society at large, the appellant was not held entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Cr.P.C., instead while setting aside his conviction and sentence, the matter was remitted back to the Trial Court for proceeding with it afresh from the stage of recording statement of accused under Section 313 Cr.P.C. with a direction to the Trial Judge to marshal the evidence on record and put specific and separate question to the accused with regard to incriminating evidence and the circumstance. 28. In this case also, the aforesaid omission on the part of the learned Trial Court to put material evidence to the accused in the course of his examination under Section 313 Cr.P.C., undoubtedly has caused prejudice to him, but, at the same time considering the entirety of facts and circumstances of the case on hand, in our view the accused does not deserve clean acquittal on account of this defect/omission, despite the fact that he is in custody for the last about 14 years, but, certainly, the conviction and sentence, as slapped upon him vide impugned judgment deserves to be set aside for the purposes of remitting the case back to the Trial Court for proceeding with the matter afresh from the stage of his examination under Section 313 Cr.P.C. Ordered accordingly. 29. The Trial Judge is directed to be very cautious and careful while examining the accused under Section 313 Cr.P.C. so that no incriminating evidence and circumstance produced by the prosecution during the trial is left in the examination of the accused and he is afforded an opportunity to explain for the same. Needless to say that the accused, if wants to examine any witness in defence, an opportunity shall be afforded to him. The Trial Court shall make all sincere efforts to wrap up the trial within a period of six months from the date of receipt of this judgment. 30. Needless to say that the accused, if wants to examine any witness in defence, an opportunity shall be afforded to him. The Trial Court shall make all sincere efforts to wrap up the trial within a period of six months from the date of receipt of this judgment. 30. Since we have set aside the conviction and sentence imposed upon the accused, the next question that crops up for our consideration is that whether the accused, who is admittedly in jail for the last about 14 years and also attained the age of about 70 years, as stated at the Bar by the learned counsel for the appellant, deserves concession of bail as his status now would of an under trial prisoner as the trial of present case is likely to be delayed further and that the accused has a right to speedy trial. We, after looking into all these aspects, direct that the accused shall be released on bail on his furnishing bail bond to the tune of Rs.50,000/- (Rupees Fifty Thousand) with two sureties of the like amount to the satisfaction of the Trial Court itself. 31. The appeal on hand stands disposed of in the aforesaid terms. 32. Since examination of accused during criminal trial is a very important aspect and there should not be any omission on the part of the Trial Judge, Registrar General of this Court shall communicate this judgment to all the Judicial Officers in every Judgeship, so that such like omissions do not creep in while examining the accused under Section 313 Cr.P.C. 33. Copy of the judgment shall also be sent to Director, Judicial Academy Jharkhand so that in any Working Session(s), the Judicial Officers are made aware of this important procedural aspect so as to avoid any omission on their part while examining the accused under Section 313 Cr.P.C. during the course of trial. Registry is directed to inform the learned Trial Court of the outcome of the instant appeal forthwith.