High Court
Case Details
Crl.A. 48/2008 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY A.C. Upadhyay, J., This appeal is directed against the judgment and order dated 27/12/2007 passed by learned Additional Sessions Judge (FTC), Kamrup, Guwahati in Sessions Case No. 15 (K)/2007, whereby the appellant was convicted under Section 302 of I PC and sentenced to life imprisonment and to pay a fine of Rs. 1000/- in default undergo RI for 6 months and further, the appellant was convicted under section 201 I.P.C and sentenced to undergo RI for 4 years and to pay a fine of Rs. 1000/ - in default RI for another six month . Both the sentences were directed to run
Legal Reasoning
concurrently by the learned Trial Court. 2. The prosecution story, as disclosed in the FIR, is that on getting the i nformation about the missing of Mustt. Mamiron Nessa, (the 2nd wife of accused R ahman Ali), Md. Kurban Ali along with five other persons came to the house of th e accused and his first wife informed them that Mamiron committed suicide and sh e was buried near the river. Accordingly on 6.2.04 it was informed at Tulsibari Police O.P. On 6.2.04 the police and the Magistrate could not find out the dead body, but on 7.2.04 on being shown by the first wife and mother of the accused t he dead body of Mamiron was dug out from the earth. Accordingly Kurban Ali lodge d the FIR at Tulsibari police O.P. on 7.2.04. On the basis of the FIR police registered a case, started investigation 3. and after completion of investigation, the Investigating Police Officer submitte d charge-sheet against accused Rahman Ali and Javed Ali alleging commission of o ffence U/s 302/201 of IPC. The accused Javed Ali was chargesheeted showing him as an absconder. 4. The offence being exclusively triable by the court of Sessions the lea rned Judicial Magistrate, 1st Class, Rangiya committed the case to the court of Sessions, Kamrup, Guwahati. Learned Sessions Judge, Kamrup, Guwahati transferre d the case to the Court of Addl. Sessions Judge (FTC) for disposal. Accordingly , accused Rahman Ali appeared before the learned trial Court to face the trial. The case against accused Javed Ali had to be filed by declaring him as an absco nder. 5. During consideration of charge, finding sufficient materials to proceed with the trial, charge was framed against accused Rahman Ali U/s 302/201 of IPC. The charges aforenoted was read over and explained to the accused person to wh ich he pleaded not guilty and claimed for trial. 6. esses including the Medical Officer and the Investigating Officer. In the course of trial, the prosecution side examined as many as 13 witn 7. On conclusion of the recording of the prosecution witnesses, trial court recorded the statements of the accused as per provision of the Section 313 CrPC . In the statement recorded under Section 313 CrPC, the accused pleaded not guil ty and declined to adduce any evidence in defence. On conclusion of the hearing of the case, learned trial Court convicted and sentenced the accused as aforesai d giving rise to this appeal. The learned trial Court recorded conviction of the accused, basing on the circumstantial evidence adduced by the prosecution and t he fact of the deceased being together in the company of the accused immediately before her death.
Legal Reasoning
8. We have heard Mr. HRA Choudhury, learned senior counsel for the appellan t and Ms. B. Saikia, learned Additional P.P. appearing for the State respondent. 9. Since the case of the prosecution is based on circumstantial evidence, i n order to appreciate the submissions advanced by the learned counsel for the pa rties, it would be appropriate to examine the defence stand of the accused vis a vis the prosecution evidence . 10. While scanning the materials on record, we were challenged by the stat ements recorded under Section 313 of the Code of criminal Procedure, by the lear ned Addl. Sessions Judge (FTC) ,Kamrup, wherein we observed failure on the part of learned Judge to diligently carry-out the duty to put all such incriminating materials arising in the evidence on record against the accused , while recordi ng the statements under section 313 Cr P. C. The circumstances which were main ly sought to be relied upon by the prosecution including the alleged false expla nation given by the accused about the where about of the deceased wife and mis leading the relations of the deceased and the villagers and the theory of the ac cused and the deceased wife being last seen together and other materials which were sought to be relied upon by the prosecution, were not confronted to the ac cused person. In a case of last-seen-together, it is obligatory on the part of t he appellant to explain as to when and where he parted the company of the deceas ed. More so , learned trial Judge did not ask the accused, during his examinatio n under section 313 Cr.P.C, as to whether he was willing to adduce any evidence in support of his defence stand or not . 11. The accused absconded soon after the occurrence. The learned trial Court posed a question, why did the appellant disappear? The accused has offered no e xplanation. No challenge has been made to the testimony of the investigating off icers that he had unsuccessfully searched for the accused at different place s and finally apprehends him after a hot chase. The circumstance of absconding w as not properly put to the accused in his examination under Section 313 CrPC. 12. Examination of an accused under Section 313 of the Cr. PC is basical ly for providing a fair trial. Section 313 Cr. P. C. confers a power on the tria l Court to examine the accused. It is a power coupled with duty bestowed upon th e court to provide opportunity to the accused personally to explain any incrimin ating circumstances appearing against him in the evidences. By these provisions, the Court is required to examine the accused after prosecution evidence is reco rded. The entire object of this provision is to give opportunity to the accused to explain such circumstances, which may tend to incriminate him, and also to en able the court to assess the case in its entirety. It is an important responsibi lity cast on the Court to guarantee a fair trial, as envisaged under article 21 of the Constitution of India. The accused is to be properly examined as per the command of the provision of law relating to examination of the accused and all t he evidence which are considered important and against the accused, centering on which conviction is required to be made, the accused is to be questioned about all those circumstances and subject-matter and be given an opportunity to explai n those circumstances. A solemn obligation is cast upon the Court to question th e accused properly and fairly to enable the accused to meet what is brought on a gainst him in clear words and thereby giving him an opportunity to explain any p oint against him. It is an important and honest task which is not to be cut down . The significance of examination under Section 313 Cr. P. C. is highlighted by the Supreme court in a number of cases. In the case of Tara Singh -vs- State, AIR 1951 SC 441, the Supreme Court dealing with section 342 (old) Criminal Proce dure Code, 1898, observed that the accused is to be examined for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Therefore, it is evident that when the Sessions Court is required to make the examination under this section the evidence is the evidence in the sessions Cour t and the circumstances which appear against the accused in that Court. It is no t enough to read over the questions and answers and ask the accused whether he has anything to say about them. 13. In the present case, the accused was not asked to explain the circumstances appearing in the evidence against him. More so, the accused was in the company of the deceased or not, if not, where was he at the relevant time etc. That does not comply with the requirements of the section. The ques tioning must therefore be fair and must be couched in a form which an ignorant o r illiterate person will be able to appreciate and understand. Even when an accu sed person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the signifi cance of a complex question. Fairness, therefore, requires that each material ci rcumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. Every error or omission in this behalf would not necessarily vitiate a trial be cause such errors fall within the category of curable irregularities. Therefor e, the question in each case depends upon the degree of the error and whether prejudice has been occasioned or is likely to have been occasioned. 14. The Supreme Court in the case of Sharad Birdhichand Sarda-vs-State of Maharashtra, AIR 1984 SC 1622, and in the case of State of Maharashtra -vs-Suk hdeo Singh, AIR 1992 SC 2100, observed that Section 313 of the Code is a stat utory 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 m ust be specifically invited to inculpatory pieces of evidence or circumstances l aid on record with a view to giving him an opportunity to offer an explanation i f he chooses a heavy duty on the court to take great care to ensure that the inc riminating circumstances are put to the accused and his response solicited. The words ’shall question him’ clearly bring out the mandatory character of the clau se and cast an imperative duty on the Court and confer corresponding right on th e accused to an opportunity to offer his explanation for such incriminating mate rial appearing against him. It is, therefore, true that the purpose of examinati on 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 examinatio n of the accused under C1 (b) of sub-sec (1) of S. 313 reaches only after the wi tnesses 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 eviden ce and before recording of statement under S. 313, the learned Judge is not expe cted to evaluate the evidence for the purpose of deciding whether or not he shou ld question the accused. After Section 313 stage is over he has to hear the oral submission of counsel on the evidence adduced before pronouncing on the evidenc e. The learned trial Judge is not expected before he examines the accused under S. 313 of the code, to shift the evidence and pronounce on whether or not he wou ld accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that martial. 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 certai n incriminating material, it is the duty of the trial Court to allow an explanat ion by the accused. While going through the materials on record, we were confron ted with the statements recorded under Section 313 of the Code of criminal Proce dure, wherein, the learned sessions Judge failed to assiduously carry-out his du ty while recording the statements under section 313 Cr P. C. There are about fiv e or six circumstances, which were mainly sought to be relied upon by the prosec ution including the alleged false explanation given by the accused regarding the where about of the deceased after the occurrence and misleading the relations o f the deceased, as well as the circumstance in which the accused was last seen t ogether with the deceased were not confronted to the accused. 15. Circumstances, which are not put to the accused in examination unde r Section 313 of the Cr.P.C., cannot be used against him and have to be excluded from consideration. As matter of procedure the trial Court is to sum-up the evi dence and put to the accused the necessary question which appears from the evide nce. It is for the court to decide the question and put the same to the accused. If the examination under Section 313 cr. PC is not properly made, the trial bec omes irregular and in that view of the matter, the courts are to take necessary care in this regard. 16. More so, when the prosecution case is based on circumstantial evidence alone , it is of vital importance that all the material circumstances, which decide the issue against the accused are to be put to the accused seeking explanation thereto. Section 313 of the code saddles a duty upon the court to question the accused fairly and judiciously to enable the accused to meet the c ase. The accused must be questioned separately about each material circumstance which are intended to be used against him in the trial. At the same time, a Cour t should not however hold an interrogational proceeding. The accused also should not be subjected to cross-examination. On top of it, the accused also is not to be examined to fill-up a gap in the prosecution evidence. 17. In view of the inadequacies indicated above , in so far as examina tion of the accused under section 313 Cr P C is concerned and on that count alon e, we set aside the conviction and sentences of the accused/appellant and reman d the matter to the learned Sessions Judge,Kamrup, to proceed with the trial of the case from the stage of examination of accused under Section 313 Cr P. C and on completion of the examination, the learned trial Court shall thereafter call upon the accused persons to enter on his defence and adduce any evidence in his support thereof as indicated in Section 233 of the Cr. P. C. 18. Since the accused is in Jail custody, it is expected that the le arned Sessions Judge , Kamrup shall conclude the trial within a period of two mo nths from the date of receipt of the records of the case. 19. Before parting with this appeal, we would like to clarify that we h ave consciously avoided discussing the merit of the appeal and/or the credibilit y or otherwise of the evidence adduced by the prosecution in the trial Court, as well as the arguments advanced by the learned counsel on merit or demerit of the case , so as to enable the learned trial Court to remain absolutely free to come to its own independent verdict. 20. Send down the case records to the learned Sessions Court Kamrup,fort hwith by a special messenger ,together with a copy of this judgment and order.