Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.841 of 2013 ====================================================== Rajendra Chaudhary S/O Harihar Chandhary Resident Of Village- Paithana, P.S- Wena ( Rahui), District- Nalanda. Versus .... .... Petitioner/s The State Of Bihar .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Y.C.Verma, Sr. Advocate. Mr. Navjot Yeshu, Advocate. For the Respondent/s : Mr. Durga Nand Jha, Advocate. For the Informant : Mr. Parmanand Pd. Nr.Sahi, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V ORDER 4 13-11-2013 Sole petitioner Rajendra Chaudhary who has been found guilty for an offence punishable under Section 498A of the IPC and directed to undergo R.I. for two years as well as slapped with a fine appertaining to Rs.2,000/- in default thereof, to undergo imprisonment of two months additionally vide judgment dated 22.08.2008 passed by Sub Divisional Judicial Magistrate, Nalanda at Biharsharif in Bihar P.S. case no.234 of 2000, G.R.No.1161 of 2000 as well as judgment dated 27.05.2013 passed by Ist Additional Sessions Judge, Nalanda at Biharsharif in Cr.Appeal No.120 of 2008 confirming the conviction under Section 498A of the IPC while reducing the sentence to six months and maintaining the fine of Rs.2,000/- without any default
Legal Reasoning
clause has challenged the same. 2. P.W.4 Smita Sinha filed complaint petition no.602C of 2000 against Rajendra Choudhary and three others, namely, Harihar Choudhary, Indrani Devi and Priti Kumari @ Rubi 2 Kumari (since acquitted) which was sent to concerned police station for registration and investigation of the case on account of which Bihar P.S.Case No.234 of 2000 was registered under Sections 498A, 341, 323, 379 and 504 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act disclosing the fact that she was married with Rajendra Choudhary on 16.12.1999 and accordingly, gone to her Sasural(native place) at village-Paithana where she resided for 15 days and lent the married life happily. Then thereafter, she was shifted to Mohalla- „Garhpar‟ where her Sasuralwala was residing in a rented house. During course of her stay, her Sasuralwala began to advance Rs.2,00000/- to be managed by her to facilitate marriage of Priti Kumari, Nanad. On her denial, she was subjected to torture and anyhow, after having communication, her mother and brother managed Rs.1,00000/- which was handed over to the accused persons. Subsequently thereof, the accused persons began to demand two kathas land at Biharsharif and during midst thereof, she was again subjected to torture. Anyhow the matter was pacified and then thereafter, she was taken to Punjab where accused Rajendra Chaudhary happens to be employed in a bank. During her stay at Bhatindah she was again subjected to torture. Anyhow with the help of landlord she informed her Maika and on arrival of her brother she got rescued therefrom and then the case has been filed. 3. After submission of chargesheet, the case proceeded. 3 While others were acquitted, petitioner was found guilty in a manner as indicated above. The aforesaid judgment was found confirmed subject to deduction in sentence during appeal hence this revision. 4. Contention on behalf of the petitioner is that learned Lower Court had not taken into account the infirmities, inconsistencies, discrepancies persisting in the prosecution case which, if taken in proper way, would have completely negativiate the finding recorded by the learned successive Courts. It has further been submitted that the prosecution case is suffering from so many deficiencies because of the fact that none of the family members save and except P.Ws.1, 2 and 4, the mother, brother and informant herself, came forward to support the plea of the informant. It has further been submitted that though no suggestion has been given on behalf the petitioner during course of the cross- examination of P.W.1 or P.W.4, the informant but presence of P.W.3 Om Prakash, a stranger, within the domain of family of prosecution gives impression that virtually on account of his presence within the domestic periphery and being objected at the end of accused side, is the real cause for filing of instant case otherwise had there been such kind of occurrence, at least the other family members both at paternal side as well as maternal side of the informant would not have spared the accused persons for their misdeeds. Apart from others, it has also been submitted 4 that when the evidence of P.W.1 as well as P.W.2, the mother and brother of the informant P.W.4 is taken together, it is found that they are not at all consistent on any front and on account thereof, the prosecution story as advanced and placed before the court is found unreliable. P.W.3, is neither an eye witness nor satisfy his statement as hearsay witness. On account of persistent inconsistency, his evidence could not be treated as corroborative in nature. 5. Now coming to the evidence of P.W.5, the I.O., it has been said that less said is better. From his evidence, it is apparent that he had not conducted the investigation in proper way rather simply submitted chargesheet in mechanical manner. He did not visit the place of occurrence, nor collected statement of independent witness having their residence at or around the place of occurrence. It has further been submitted that all the incidents of torture and harassment had taken place within the jurisdiction of Bhatinda, as such, the Court of Nalanda has got no jurisdiction to try the offence. Therefore, the cumulative effect happens to be that prosecution could not be able to substantiate its case. Moreover, the evidence of the three D.Ws. including that of one of the accused Harihar Choudhary (since acquitted) examined as D.W.3 in terms of Section 315 of the Cr.P.C. has also not been properly considered by the successive Courts, hence, the successive judgments are fit to be set aside. 5 6. At the other hand, the learned Additional P.P. while refuting the prayer submitted that from the successive judgments, it is apparent that the Trial Court had minutely gone through the evidence available on the record and after having proper scrutiny thereof, acquitted other accused while convicted the petitioner. It has further been stated that even petitioner is found acquitted for remaining charges. Having his conviction under Section 498A of the IPC by the successive Courts is indicative of the fact that the learned Lower Courts have taken pain to scrutiny the evidence on that very score properly, therefore did not attract interference. 7. From perusal of the Lower Court Record, it is evident that charge happens to be defective. From perusal of the charge, it is apparent that petitioner along with others were charged for an offence punishable under Section 498A of the IPC and ¾ of the Dowry Prohibition Act for an occurrence committed on Ist January, 2000 at Paithana P.S. Bihar, District-Nalanda. While the petitioner along with others were charged for an offence punishable under Sections 379/34, 323, 341 and 504 of the IPC for an occurrence committed on Ist June, 2000 at village-Dakaroad Ramamandi(Punjab). In terms of Section 219, three offences of same kind within a year may be charged and tried together, in the aforesaid background Section 178 of the Cr.P.C the trial could be held at either of the place but the fact remains that aforesaid charge is not consonance with the allegation so made in the 6 complaint petition/written report as well as is visible from the evidence of the P.Ws. According to the prosecution case, right from the written report, after solemnization of marriage, the couple have gone to village- Paithana where they spent their precious moment for 15 days. During stay at Paithana, none of them have alleged that P.W.4 was ever tortured nor P.W.4 herself alleged so. That means to say the charge is not found fitted with the allegation. 8. Now coming to the statement of the accused, it is apparent that another kind of severe mistake has been committed by the learned Lower Court. The learned Lower Court had recorded the statement in the following manner. iz’u 1& D;k vki bl ns’k esa fopkj.k ds nkSjku xokg dh xokgh lqus gSa \ mRrj & th gkW A iz’u 2& vkids fo:} lk{; gS fd vki lg vfHk;qDrksa ds lkFk bl okn ds lwpd fLer flUgk dks ’kknh ds dqN gh fnu ckn lg vfHk;qDr izhfr dqekjh ds ’kknh ds [kpZ gsrq nks ykk[k :i;s ds uktk;t ekax djus yxs vkSj ekax dh iwfrZ ugha gksus ds mijkar fnukad& 1 tuojh 2000 ls yxkrkj xkyh xykSt ekjihV dj pUn rjg dk izrkM+uk fd;s vkSj vius a ds lkFk eSds ls lwpd tks iSlk ys x;h Fkh mls Hkh vius lg vfHk;qDrks fNu fy;s vkSj ?kj ls Hkxk fn;s A bl laca/k esa vkidks D;k dguk gS \ mRrj& xyr dgk gS A iz’u 3& cpko esa dqN dguk gS \ mRrj& funksZl gS A lQkbZ nsaxs A 9. The basic feature governing the ambit and scope of Section 313 of the Cr.P.C. is that all the incriminating circumstances brought up by the prosecution during course of conduction of trial should be placed before the accused so that he has got an opportunity to explain properly. The explanation 7 adduced on behalf of accused on that very score has got a bearing on the fate of the trial, in terms of Section 313(4) of the Cr.P.C and in the aforesaid background, the manner of recording of statement, the questionnaire so formulated and confronted to the accused, happens to be seriously debated at each and every occasion before the Hon‟ble Apex Court whenever the same is raised. 10. In a Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan reported in 2013 CRI.L.J.3276, the Hon‟ble Apex Court had taken note of the earlier decision in following way. “25. In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration. 26. In State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100, this Court observed as under: “…if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence his examination under Section 313 of the Code would be wholly unnecessary and improper. In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.” 27. In Mohan Singh v. Prem Singh & Anr., AIR 2002 SC 3582, this Court held: 8 “The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. If the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction.” 28. In Dehal Singh v. State of H.P., AIR 2010 SC 3594, this Court observed: “Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. The appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter- alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined with reference those statements. However, when an accused appears as a witness in defence to disprove the charge, his version can be tested by his cross- examination.” to 29. In State of M.P. v. Ramesh, (2011) 4 SCC 786: (AIR 2011 SC (Cri) 897 : 2011 AIR SCW 1956), this Court held as under: “The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross- examined. his statement so recorded under Section 313 CrPC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act. 1872. Section 315 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give 9 his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross- examined on behalf of the prosecution and/or of the accomplice, if it is so required.” 30. In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114, this Court observed as under: “It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events….” 31. In Dharnidhar v. State of U.P. & Ors., (2010) 7 SCC 759, this Court held: “The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC.” 32. In Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC 1357, this Court held as under: “It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.” 33. In Munish Mubar v. State of Haryana, AIR 2013 SC 912, this Court, while dealing with the issue of the examination of the accused under Section 313 Cr.P.C. held, that the accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. as regards any incriminating material that has been produced against him. Such a view was taken in light of the fact that there existed evidence to show that the accused had parked his car at the 10 Delhi Airport, and that the same had remained there for several hours on the date of commission of the crime in question. Thus, in light of the fact that such a fact had been established, and that such circumstances also simultaneously existed, the accused was expected to explain the reason for which he had gone to the airport, and why the car had remained parked there for several hours. 34. In Ramnaresh (Supra), this Court had taken the view that if an accused is given the freedom to remain silent during the investigation, as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial, even at the time when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the Court would be entitled to draw an inference, including such adverse inference against the accused, as may be permissible in accordance with law. While such an observation has been made, this part of the judgment must be read alongwith the subsequent observation of the court stating that if he keeps silent or furnishes an explanation, in both cases, the same can be used against him for rendering a conviction, in so far as it supports the case of the prosecution. 35. In Brajendrasingh v. State of M.P., AIR 2012 SC 1552, this Court held, that it is equally true that a statement under Section 313 Cr.P.C., simpliciter cannot normally be made the basis for convicting the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then the heavy onus of providing adequate proof on the prosecution, that is placed is to some extent, reduced. 36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution‟s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after 11 administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.” 11. From the questionnaire having been formulated during course of recording of statement of petitioner u/s 313 Cr.P.C. it is evident that it has been done in most perfunctory manner. Neither date of occurrence, nor place of occurrence has been incorporated, side by side the nature of incriminating article, so produced by way of examination of witnesses have not been confronted in proper way and on account thereof, certainly the petitioner has been deprived of, an opportunity to explain the same in proper way. 12. When the aforesaid deficiency is taken together, with the framing of charge, less said is better. It speaks regarding apathetic attitude of the learned trial court and by such action, it could very well be construed that the right of the accused is found prejudiced substantially. 13. By way of appreciation of Section 464 Cr.P.C. some sort of relaxation is found over defective charge, but that is not found sufficient even in its full application when the defect 12 having so persisting over charge is taken together with the statement. 14. From the successive judgments it is evident that the learned lower courts have completely overlooked the same and by such action, rendered fallacious finding. 15. Hence the successive findings are set aside. Revision petition is allowed. Petitioner is in custody, hence is directed to be released forthwith if not wanted in any other case. Patna High Court, Dated 13th November, 2013, Brajesh Kumar/AFR (Aditya Kumar Trivedi, J)