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2023 DIGILAW 657 (KAR)

Rajmal Hastimal Ganna v. Vimal Moolchand Bafana

2023-04-21

ANIL B.KATTI

body2023
JUDGMENT 1. Appellants-accused Nos. 1 to 6 feeling aggrieved by judgment of the II Addl. District and Sessions Judge & Spl. Judge, Dharwad in Crl.A.No.56/2012, dtd. 13/3/2015, preferred this revision petition. 2. Parties to the revision petition are referred with their ranks as assigned in the trial Court for the sake of convenience. 3. The factual matrix leading to the case of respondent-complainant can be stated in nutshell to the effect that accused are relatives of complainant's wife-Seema and they were dissatisfied with their marriage and as such, they have developed hostility against complainant. On 9/11/2003 complainant and his friend-Raju Alakuntki were going in a motorcycle bearing No.KA-25G/1970 from Hubballi to Bankapur via Charmatti circle, when they reached at the said spot at about 7.45 p.m. accused by forming unlawful assembly came in TATA Sumo vehicle bearing No. K.A 25-M-2557 and abused the complainant and his friend in filthy language and thereafter, took the complainant in their vehicle, further they assaulted and threw him near railway track and threatened to kill him. 4. On these allegations, case was registered in Crime No.165/2003 of Vidyagiri Police Station, Dharwad for the offences punishable under Ss. 143, 147, 148, 504, 506, 341, 342, 363, 324 R/w. Sec. 149 of IPC. Investigation officer on completion of investigation filed B report which was objected by complainant and filed objections to B report. Thereafter, Court took cognizance and registered case in CC.No.710/2005 and issued summons to accused. 5. In response to summons accused appeared before the Trial Court. The Trial Court, after being prima facie stratified, has framed charges against all accused for the aforesaid offences. Complainant in order to prove his case relied on the evidence of Pws.1 to 5 and documents at Exs.P.1 to 10. Accused denied all incriminating material evidence appearing against them during the course of 313 statement and laid no any evidence. The Trial Court on hearing both sides and on appreciation of evidence, convicted all the accused for the aforesaid offences. 6. Accused being dissatisfied with judgment of conviction and order of sentence challenged the same before the First Appellate Court in Crl.A.No.56/2012. The First Appellate Court by its judgment dtd. The Trial Court on hearing both sides and on appreciation of evidence, convicted all the accused for the aforesaid offences. 6. Accused being dissatisfied with judgment of conviction and order of sentence challenged the same before the First Appellate Court in Crl.A.No.56/2012. The First Appellate Court by its judgment dtd. 13/3/2015 set aside judgment of the Trial Court holding that recording of 313 of Cr.P.C. statement is not in accordance with law, which has caused prejudice to accused and remanded matter to the Trial Court for proceeding afresh from the stage of recording statement of accused under Sec. 313 of Cr.P.C. and to dispose of the same in accordance with law. 7. Revision petitioner feeling aggrieved by remand order passed by the First Appellate Court without setting aside the judgment of conviction and order of sentence passed by the Trial Court preferred this revision petition contending that Trial Court has only examined issue of statement recorded under Sec. 313 of Cr.P.C. and it ought to have examined evidence on record to acquit all the accused from the charges leveled against them. The entire trial itself is vitiated for noncompliance of Ss. 246(4) and 246(5) of Cr.P.C., since no opportunity was given for cross examination of PWs.2 and 3. The witnesses examined by complainant are not that witnesses referred in the protest petition and evidence of PWs. 2 and 4 cannot be relied. Therefore, prayed for allowing the revision petition and to set aside judgment of both Courts below, consequently to acquit all accused from the charges leveled against them. 8. In response to notice respondent-complainant appeared before court. 9. Heard arguments of both sides. 10. On careful perusal of records of the Trial Court and judgment of the First Appellate Court, it would go to show that on the basis of complaint filed by respondent-complainant Sri. Vimal Moolchand Bafana criminal law was set into motion by registering case in Crime No.165/2003 of Vidyagiri Police Station, Dharwad for the aforesaid offences. Investigation officer after conducting investigation filed 'B' report. The same was objected by complainant and filed protest petition. The Trial Court, on being prima facie satisfied took cognizance for the aforesaid offences and ordered to register case in CC.No.710/2005. 11. Accused Nos. Investigation officer after conducting investigation filed 'B' report. The same was objected by complainant and filed protest petition. The Trial Court, on being prima facie satisfied took cognizance for the aforesaid offences and ordered to register case in CC.No.710/2005. 11. Accused Nos. 1 to 6 in response to summons have appeared before the Court and on trial, they have been convicted for charges leveled against them and imposed sentence as per order of sentence. The said judgment of conviction and order of sentence was assailed before the First Appellate Court in Crl.A.No.56/2012. First Appellate Court, after hearing both counsel by its judgment dtd. 13/3/2015 set aside the judgment of conviction and order of sentence passed by Trial Court holding that recording of 313 of Cr.P.C. statement is not in accordance with law and remanded the matter to Trial Court for proceeding with matter afresh from the stage of recording statement of accused under Sec. 313 of Cr.P.C. are not in dispute. 12. On careful perusal of judgment of the First Appellate Court, it would go to show that judgment of the Trial Court was set aside on the premises that accused are knowing Hindi language and their statements are recorded in Kannada language. Further, common question put to all the accused has caused serious prejudice to the right of accused. Having so observed held that recording of 313 Statement is not in accordance with law, remanded the matter to Trial Court for disposal of same in accordance with law from the stage of recording of 313 of Cr.P.C. Statement. 13. First Appellate Court has relied on the judgment of Apex Court in Nar Singh V/s. State of Hariyan, reported in 2015 SC 310. I have carefully gone through the said decision, wherein Hon'ble Apex Court found that there were omission to put material evidence to accused in the course of examination amounts to non-compliance of mandatory provision of Sec. 313 of Cr.P.C. Failure of the Trial Court to frame proper questions while examining the accused under Sec. 313 of Cr.P.C. has caused prejudice to accused. Therefore, looking to the facts and circumstances of the said case, Hon'ble Apex Court has remanded the matter to the Trial Court. Therefore, looking to the facts and circumstances of the said case, Hon'ble Apex Court has remanded the matter to the Trial Court. The above referred two issues raised by the First Appellate Court in remanding the matter to the Trial Court can be legally justified or not, in the light of fact of present case has to be decided. 14. The first ground on which First Appellate Court found fault with Trial Court is that accused are knowing only Hindi language and their statement is recorded in Kannada language and as such, serious prejudice has been caused to accused. It is pertinent to note that charge is framed for the aforesaid offence in Kannada language only. The accused or their counsel have not made any grievances that accused are unable to understand Kannada language and they did not follow the questions put to them during the course of 313 of Cr.P.C. statement, since they know only Hindi language. Accused have also not made any grievance that prejudice has been caused while framing the charge that it was recorded in the language unknown to them. The First Appellate Court in para 13 of its judgment found that there is no endorsement in the 313 of Cr.P.C. statement or in the order sheet dtd. 15/3/2012 that the statement recorded was read over to accused in Hindi, which was followed at the time of framing the charge. On going through the records of case, it would go to show that format certificate was used, which would go to show that charge framed was read over in the language know to accused and the answer given by them is recorded. It is pertinent to note that answers given by all the accused is The First Appellate Court is satisfied with the said procedure adopted by the Trial Court and held that contents of charge was read over to accused in the language know to them. Further, First Appellate Court has conveniently ignored the same certificate found while recoding 313 of Cr.P.C. statement. Therefore, in view of the fact that accused or their counsel have not raised any objections that accused are unable to understand Kannada language and they could not answer to the questions put to them cannot be allowed to say for the first time in the appeal that they did not follow the language in which the questions were put to them. When accused have not raised any grievance of having caused any prejudice while giving answer either at the time of framing charge or at the time of recording of 313 of Cr.P.C. statement, reasoning of First Appellate Court that prejudice has been caused to accused since statement is recorded in the language unknown to them for the reasons recorded above cannot be legally sustained. 15. The First Appellate Court has formulated first point for consideration that Trial Court has failed to form proper questions relating to incriminating circumstances while examining the accused under Sec. 313 of Cr.P.C. but nor recorded any finding on the said point. The First Appellate Court has also not stated as to which evidence amounting to incriminating evidence against accused has not been formulated and because of which prejudice has been caused to accused. On the other hand, observation and finding recorded by the First Appellate Court in para Nos. 13 to 15 of it's judgment is only relating to questions being put in Kannada language, which is unknown to accused. In support of such observation, reliance was placed on the aforesaid judgment of Hon'ble Apex Court. In view of the reasons recorded as above, it has been held that finding of the First Appellate Court that prejudice was caused to accused for not explaining the questions put to them in Hindi language cannot be legally sustained. 16. On going through the statement recorded by Trial Court, incriminating martial evidence appearing against the accused out of the witnesses examined by complainant has been put and answer given by accused has been recorded. Therefore, without specifically identifying the material incriminating evidence appearing against accused out of evidence relied by complainant, it cannot be said that the Trial Court has failed to form proper questions relating to incriminating evidence while recording statement under Sec. 313 of Cr.P.C. Therefore, both the grounds on which the remand order was passed by the First Appellate Court and the same cannot be legally sustained. 17. Learned counsel for the revision petitioners has argued that First Appellate Court should have acquitted the accused and the same is also challenged in the present revision petition. It is further submitted that this Court on appreciation of evidence on record can examine the propriety and correctness of conviction order passed by the Trial Court. 18. 17. Learned counsel for the revision petitioners has argued that First Appellate Court should have acquitted the accused and the same is also challenged in the present revision petition. It is further submitted that this Court on appreciation of evidence on record can examine the propriety and correctness of conviction order passed by the Trial Court. 18. Indisputably, the First Appellate Court has not appreciated the evidence placed before the Trial Court and recorded finding on merits of case. On the other hand, the First Appellate Court found fault with the Trial Court in proper recording of 313 of Cr.P.C. statement and held that prejudice has been caused to accused. The said finding of the First Appellate Court for the reasons recorded above, it has been held that same cannot be legally sustained. This Court, while exercising revisional power without there being any finding of the First Appellate Court on merits after appreciating the evidence on record cannot record finding on the propriety and correctness of judgment of conviction and order of sentence passed by the Trial Court. Therefore, it would be appropriate to remand the matter to the First Appellate Court to decide the appeal on its merits, in accordance with law. Consequently, proceeded to pass the following: ORDER The Revision petition filed by revision petitioners is partly allowed. The order of remand passed by the II Addl. District and Sessions and Spl. Judge, Dharwad in Crl.A.No.56/2012, dtd. 13/3/2015 is hereby set aside. The matter is remanded to the First Appellate Court for deciding the appeal on merits, in accordance with law as expeditiously as possible. The parties shall appear before the First Appellate Court on 30/5/2023 without there being any notice for seeking further instructions.