Orissa High Court
Biswanath Sasamal vs State Of Orissa on 19 November, 2015
Author: S. K. Sahoo
Bench: Vinod Prasad, S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA NO. 321 OF 2012
From the judgment and order dated 27.04.2012 passed by the
Adhoc Addl. Sessions Judge, F.T.C. No. 3, Bhubaneswar in S.T.
Case No.6/8/283 of 2009/03 and S.T. Case No.7/12/355 of
2009/04.
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Biswanath Sasamal ........ Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - M/s. Soura Ch. Mohapatra
(Senior Advocate)
Samarendra Mohanty
P.C. Moharana
For Respondent: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of hearing- 03.11.2015 Date of Judgment-19.11.2015
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S. K. SAHOO, J.The appellant Biswanath Sasamal along with co- accused Tiki @ Anwar Khan and Sk. Mustaqe Ali faced trial in the Court of learned Adhoc Addl. Sessions Judge, F.T.C. No. 3, Bhubaneswar in S.T. Case No.6/8/283 of 2009/03 and S.T. Case 2 No.7/12/355 of 2009/04 for offences punishable under sections 364, 302, 394 and 201 read with section 34 Indian Penal Code for kidnapping and committing murder of one Prafulla Mohanty (hereafter "the deceased") on 09.10.2002, for committing robbery of the auto rickshaw of the informant Balaram Samantaray (P.W.1) and also for causing disappearance of evidence of offence in furtherance of common intention.
The learned trial Court vide impugned judgment and order dated 27.04.2012 held the appellant and the co-accused persons guilty under sections 364, 302, 394, 201 read with section 34 of Indian Penal Code. Since the co-accused persons remained absent on the date of pronouncement of judgment, non-bailable warrant of arrest was issued against them. The appellant was however sentenced to undergo imprisonment for life under section 302 of Indian Penal Code, R.I. for ten years on each count under sections 364 and 394 of Indian Penal Code and R.I. for seven years under section 201 of Indian Penal Code and the sentences were directed to run concurrently.
2. The prosecution case, as per the F.I.R. lodged by Balaram Samantaray (P.W.1) on 10.10.2002 before Inspector-in- charge, Khandagiri Police Station, Bhubaneswar was that he was the owner of one auto rickshaw bearing Registration No. OR-02- K-8224 which was plying from Khandagiri Auto rickshaw Stand 3 and he had engaged the deceased as the driver of his auto rickshaw. On 09.10.2002 the informant returned home in the night and found that the auto rickshaw had not returned back and accordingly he searched for the auto rickshaw but could not locate the same. On 10.10.2002 the informant went to Khandagiri auto rickshaw stand and ascertained from one Ramesh Mohanty and Muna Samantaray that on the previous day night at about 9.30 p.m., two Muslim boys namely Tiki and Tuku along with another young man took the auto rickshaw of the deceased on hire towards Salia Sahi. The informant along with one Jitan Jena went towards Salia Sahi for the search of the deceased and auto rickshaw. As they could not locate the deceased and the auto rickshaw, suspecting that the deceased might have been kidnapped and the auto rickshaw might have been taken forcibly from him, the F.I.R. was lodged.
3. On receipt of the written report of P.W.1, Khandagiri P.S. Case No. 333 dated 10.10.2002 was registered under sections 363, 392 read with section 34 of Indian Penal Code against one Tiki, Tuku and another. P.W.16 Manoranjan Mohanty, Inspector-in-charge of Khandagiri Police Station himself took up investigation of the case. He examined the informant, visited the spot and sent V.H.F. message to all the Police Stations of the district intimating them regarding missing 4 of the auto rickshaw and its driver (deceased). He received V.H.F. message from officer-in-charge of Chandaka Police Station that the missing auto rickshaw had been traced out and it had been detained in Mendhasala out post. P.W.16 proceeded to Mendhasala out post and found the auto rickshaw there and accordingly seized the same. The appellant had also been detained at the Police Station and basing on the confessional statement of the appellant, the dead body of the deceased was recovered. P.W.16 seized the auto rickshaw, sword and katari under seizure list Ext. 13 and the wearing apparels of the appellant under seizure list Ext.14. P.W.16 prepared the spot map and held inquest of the dead body under inquest report Ext.2. He also seized blood stained earth, sample earth, a pair of chappals lying at the spot under seizure list Ext.4. He also sent the dead body to Capital Hospital, Bhubaneswar for post mortem examination. The Investigating Officer searched for the absconding co-accused persons but could not locate them. The informant produced the original documents of the auto rickshaw bearing Registration No. OR-02-K-8224 along with the driving licence of the deceased which were seized under seizure list Ext.19. On 25.10.2002 the I.O. arrested the absconding accused Tiki @ Sk. Anwar Khan at Baramunda Bus Stand and arrested him. On the confessional statement of co-accused Tiki @ Sk. 5 Anwar Khan on 26.10.2002, the Investigating Officer recovered one colour full pant and full shirt and seized the same under seizure list Ext.21. He made a prayer to S.D.J.M., Bhubaneswar for sending the seized materials for chemical examination to State F.S.L., Rasulgarh, Bhubaneswar. On completion of investigation, the Investigating Officer submitted charge sheet against the accused persons including the appellant under sections 364, 302, 394, 201 read with section 34 of Indian Penal Code showing accused Tuku @ Mustaqe Ali as absconder.
4. After observing due committal formalities, the case of the appellant was committed to the Court of Session for trial where the learned 2nd Addl. Sessions Judge, Bhubaneswar framed charge against the appellant and co-accused Tiki @ Anwar Khan under sections 364/302/394/201/34 of IPC on 28.06.2004 and since the appellant denied the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him along with the co-accused persons and to establish their guilt.
5. In order to prove its case, the prosecution examined sixteen witnesses.
P.W.1 Balaram Samantaray is the informant in the case and he happens to be the owner of the auto rickshaw in question.
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P.W.2 Ramesh Chandra Mohanty has stated about the last seen of the deceased in the company of three persons. He also stated about the recovery of the dead body of the deceased at the instance of the appellant. He is also a witness to the inquest.
P.W.3 Rajendra Samantaray is an auto rickshaw driver and he stated about the last seen of the deceased in the company of three persons at Khandagiri auto rickshaw Stand.
P.W.4 Ramesh Chandra Jena is a witness to the inquest. He was declared hostile by the prosecution and questions were put to him by the Associate Public Prosecutor under section 154 of Evidence Act.
P.W.5 Sachidananda Satpathy was the A.S.I. of Police who was attached to Mendhasala out post and he stated about the seizure of one auto rickshaw, one sword and a Katari.
P.W.6 Jitendra Jena did not support the prosecution case for which he was declared hostile and questions were put to him by the Associate Public Prosecutor under section 154 of Evidence Act.
P.W.7 Mahendra Kumar Mohanty has stated about the recovery of the dead body of the deceased from a bushy area in front of Woman Polytechnic. He was also declared hostile by the 7 prosecution and questions were put to him by the Associate Public Prosecutor under section 154 of Evidence Act.
P.W.8 Ashok Kumar Maharathi has stated about the presence of the petitioner in the auto rickshaw as driver in the company of two others during the midnight on 09.10.2002. He was declared hostile and questions were put to him by the Associate Public Prosecutor under section 154 of Evidence Act.
P.W.9 Ajaya Barik and P.W.10 Akshaya Kumar Prusty did not support the prosecution case for which they were also declared hostile and questions were put to him by the Associate Public Prosecutor under section 154 of Evidence Act.
P.W.11 Bijaya Kumar Samantaray has stated that during midnight on 09.10.2002 the appellant was present along with two others in an auto rickshaw and from the possession of the appellant, one sword and Katari were recovered which were subsequently seized by Police under a seizure list. He further stated that the appellant disclosed the names of the two co- accused persons who fled away from the auto rickshaw.
P.W.12 Dr. Sujata Mohanty was the Scientific Officer, F.S.L., Rasulgarh who examined the articles which were sent for chemical analysis in connection with Khandagiri P.S. Case No. 333 of 2002 and submitted the chemical analysis report. 8
P.W.13 Dr. Capt. Baradakanta Mishra was the Asst. Surgeon, Capital Hospital, Bhubaneswar who conducted post mortem examination over the dead body of the deceased and proved the post mortem report vide Ext.10.
P.W.14 Ramesh Chandra Maharathi did not support the prosecution case for which he was declared hostile and questions were put to him by the Associate Public Prosecutor under section 154 of Evidence Act.
P.W.15 Bhagirathy Paikray was the constable attached to Khandagiri Police Station who carried the dead body for post mortem examination on 10.10.2002 and after such examination was conducted, he produced the wearing apparels of the deceased which were seized by P.W. 16 under seizure list Ext. 6/2.
P.W.16 Monaranjan Mohanty was the Inspector-in- charge of Khandagiri Police Station who is the Investigating Officer of the case.
The prosecution marked 25 documents. Ext.1 is the FIR, Ext.2 is the inquest report, Ext.3/4 is the confessional statement of the appellant, Ext.4/1, 6/2, 13, 14, 19, 21 are the seizure lists, Ext.5/1 is the confessional statement of accused Tiki @ Anwar Khan, Ext.7 is the copy of the forwarding letter of S.D.J.M., Exts.8 and 9 are the chemical examination report and 9 serological certificate respectively, Ext.10 is the post mortem report, Ext.11 is the Command Certificate, Ext.12 is the dead body challan, Ext.15 is the signature of the IIC, Chandaka Police Station on seizure list Ext.14, Ext.16 is the spot map, Ext.17 and 17/1 are the two photographs of the dead body of the deceased and the spot along with its negatives, Ext.18 is the letter containing prayer made by the I.O. to convert the case to one section 302 of IPC, Ext.20 is the zimanama, Ext.22 is the requisition of the I.O. to the S.D.J.M., Bhubaneswar for sending the seized materials for chemical examination, Ext.23 is the prayer made by the I.O. to the Court to issue non-bailable warrant of arrest, Ext.24 and 24/1 are the signatures of the I.O. on M.O.I and M.O.II respectively and Ext. 25 and 25/1 are the signatures of the appellant on M.O.I and M.O.II respectively.
The prosecution marked eleven material objects. M.O.I is the sword, M.O. II is the Katari, M.O.III is the pant of the appellant, M.O.IV is the banyan of the appellant, M.O. V and VI are the pant and shirt of accused Anwar Khan, M.O. VII, VIII, IX and X are the pant, shirt, banyan and underwear of the deceased respectively and M.O. XI is a pair of chappal.
No witness was examined on behalf of the defence.
6. The learned trial Court taking into consideration the evidence and materials on record, inter alia, the last seen theory 10 which was deposed to by P.W.2 and P.W.3, held that the prosecution has proved its case beyond all reasonable doubt and accordingly found the appellant and other two co-accused persons guilty under sections 364/302/394/201/34 of Indian Penal Code.
7. Mr. Soura Chandra Mohapatra, learned Senior Advocate appearing for the appellant submitted that neither the Presiding Officer nor the Public Prosecutor nor even the defence counsel have discharged their solemn duty in accordance with law and thereby substantial injustice has been caused to be appellant. Elaborating his contentions, Mr. Mohapatra further submitted that the evidence of P.Ws. 2 and 3 who are the vital witnesses of the prosecution have not been recorded in the presence of the appellant or his counsel. It was recorded in the connected sessions trial case which was subsequently clubbed up with the sessions trial in which the appellant was facing trial and therefore the evidence of those two witnesses should not have been utilized against the appellant.
Mr. Janmejaya Katikia, the learned Addl. Govt. Advocate on the other hand contended that at a subsequent stage of trial, the counsel for the appellant was afforded with an opportunity to cross examine both P.W.2 and P.W.3 and accordingly both of them were also cross-examined and 11 therefore no prejudice has been caused to the appellant. He further contended that when the learned trial Court passed the order for clubbing up both the sessions trials and directed for recalling P.W.2 and P.W.3 on 08.03.2006 for cross-examination and those two witnesses appeared on 06.05.2006, the defence counsel cross-examined them without insisting upon for recording of their examination-in-chief again which in turn implies that the appellant agreed that statements of P.W.2 and P.W.3 recorded in the connected sessions trial may be read in evidence against him and therefore at this stage such procedural irregularities cannot be questioned.
8. Before delving upon the rival contentions raised at the Bar, it is very much necessary to scrutinize the relevant order sheets of the two sessions trial.
The appellant and co-accused Tiki @ Anwar Khan faced trial in S.T. 6/8/283 of 2009/03 and the records of that case was received in the Court of Session after commitment on 30.10.2003. Both the accused were produced in the Court of Session on 13.11.2003 and the case was transferred to the Court of learned 2nd Additional Sessions Judge, Bhubaneswar on 02.06.2004 and charge was framed against them on 28.06.2004 and on 21.09.2004 P.W.1 Balaram Samantray was examined. 12
The co-accused Sk. Mustaqe Ali faced trial in S.T. Case No. 7/12/355 of 2009/04 and the records of that case was received in the Court of Session after commitment on 02.08.2004 and the case was transferred to the Court of learned 2nd Addl. Sessions Judge, Bhubaneswar on the very day for disposal and the accused was produced in the trial Court on 21.08.2004 and charge was framed against him on 06.10.2004 and on 16.09.2005 P.W.1 Balaram Samantray, P.W.2 Ramesh Chandra Mohanty and P.W.3 Rajendra Samantray were examined, cross examined and discharged.
On 08.03.2006 the learned trial Court passed the following orders in both the sessions trials.
S.T. Case No. 8/283 of 2004/2003 8.3.2006 - Accused persons are produced. The petition filed by the Associate P.P. for analogous trial of this case along with S.T. Case No. 12/355 of 2004 is put up. Heard the Associate P.P. and the defence Advocate. Both the cases arise out of common G.R. Case No. 3232/ 2002. The charges are similar. Therefore, the petition is allowed and S.T. Case No. 12/355 of 2004 is to be tried analogously along with this case, as one witness namely, Balaram Samantray has been examined in this case, so also in S.T. Case No. 12/355 of 2004, he need not be further cross examined. However, the witnesses namely 13 Ramesh Chandra Mohanty and Rajendra Samantray who have been examined in S.T. Case No. 12/355 of 2004 are to be recalled for their cross examination in connection with this case (S.T. Case No. 8/283 of 2004/2003). Issue summons to them (Ramesh Chandra Mohanty and Rajendra Samantray) and put up on 30.03.2006 for their further cross examination.
The accused persons be produced on that date.
(Dictated) 2nd ASJ, Bhubaneswar S.T. Case No. 12/355/2004 8.3.2006- The accused is produced. In view of the order passed in S.T. Case No. 8/283 of 2004/2003 on the petition filed by the Associate P.P., this case is clubbed with S.T. Case No. 8/283 of 2004/2003 and to be tried analogously. The accused be produced on 30.03.2006."
(Dictated) 2nd ASJ, Bhubaneswar After the cases were clubbed up, on being summoned, P.W.2 Ramesh Ch. Mohanty and P.W.3 Rajendra Samantray appeared before the learned trial Court on 06.05.2006 and they were cross examined by the counsel for the appellant as well as co-accused Tiki @ Anwar Khan. They were re-examined on recall 14 on the prayer of the prosecution who was permitted to put leading questions to those two witnesses on the ground that they made departure from their earlier statements before police. After further cross-examination by the defence, they were discharged.
From the scrutiny of the records of the two sessions trials, it is apparent that P.W.2 Ramesh Chandra Mohanty and P.W.3 Rajendra Samantaray were examined, cross-examined and discharged in S.T. case No. 12/355 of 2004 in which accused Sk. Mustaq Ali was facing trial and those two witnesses were never examined in-chief in S.T. Case No. 8/283 of 2004/03 in which the appellant and co-accused Tiki @ Anwar Khan were facing trial. But after the cases were clubbed up and P.W.2 and P.W.3 were recalled for cross-examination, the counsels for the appellant and co-accused Tiki @ Anwar Khan were afforded opportunity to cross examine those two witnesses.
9. The question which has cropped up as to whether the evidence of P.W. 2 and P.W. 3 which were recorded in the connected sessions trial can be utilized against the appellant merely because after clubbing up both the sessions trials, an opportunity of cross-examination was afforded to him? Whether non-recording of examination-in-chief of P.W.2 and P.W.3 again has caused prejudice to the appellant?
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10. Chapter XXIII of Code of Criminal Procedure 1973 deals with the evidence in inquiries and trials. So far as the mode of taking and recording evidence is concerned, for the purpose of adjudicating the points involved in this case, sections 273, 278 and 279 are very relevant which are extracted herein below in extenso:-
Section 273. Evidence to be taken in presence of accused- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.
Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the Court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross- examination of the accused.
Explanation- In this section, "accused" includes a person in relation to whom any proceeding under Chapter-VIII has been commenced under the Code.
* * * * * * * * * Section 278. Procedure in regard to such evidence when completed- (1) As the evidence of each witness taken under section 275 or section 16 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.
(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in language which he understands.
* * * * * * * * * Section 279. Interpretation of evidence to accused or his pleader- (1) Whenever any evidence is given in a language not understood by the accused, and he is present in the Court in person, it shall be interpreted to him in open Court in a language understood by him.
(2) If he appears by pleader and the evidence is given in a language other than the language of the Court and not understood by the pleader, it shall be interpreted to such pleader in that language.
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(3) When documents are put for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary.
11. Section 273 of Cr.P.C. mandates that all evidence in a criminal trial must be recorded in the presence of the accused except as otherwise expressly provided. The use of word 'shall' in the provision makes it mandatory for ensuring the presence of the accused at the time of recording of the evidence. When a power is coupled with duty, its exercise ceases to be discretionary and it becomes mandatory. From the scheme of the statute, nature of the duty imposed, it has to be ascertained whether a duty under a statute is obligatory, mandatory or directory.
The exception has been provided in the section 273 Cr.P.C. itself that where personal attendance of the accused was dispensed with and the evidence of the witness is recorded in the presence of his pleader. Thus, even if the accused is not present and his personal attendance has been dispensed with by the learned trial court, there would be no procedural irregularity in case the evidence of a witness is taken in the presence of the pleader of the absentee accused. But in a case where personal appearance of the accused was dispensed with and the evidence 18 of the witness is recorded in the absence of his pleader, it would be definitely a non-compliance of the provision under section 273 Cr.P.C.
The purpose of recording the evidence of a witness in presence of the accused or his pleader is obviously for the purpose of a fair trial in as much as the accused has every right of opportunity of hearing of the evidence against him and he should also know as to which witnesses are deposing in the case and what they are deposing, so that he can give valuable instruction to his pleader to defend him properly and he can also give effective reply to the questions put to him by the Presiding Officer in the accused statement. Recording the evidence behind the back of the accused and not in his presence and that to in absence of his lawyer and utilizing the same against him would certainly cause serious prejudice to him. Thus the trial Court has a solemn duty to provide such opportunity of hearing to the accused for a fair trial. The accused has a right to request the Court for exempting him from personal appearance and if such request is accepted and the personal attendance of the accused is dispensed with then the evidence of the witnesses can be recorded in presence of the pleader representing the accused.
In case of Ram Shankar Rai -Vrs.- State of Bihar reported in 1975 Criminal Law Journal 1402 wherein 19 considering the corresponding provisions of section 353 of the old code of the 1898, it was observed in paragraph-6 of the judgment that where the personal attendance of the accused has been dispensed with and his pleader too was not present on the date when witnesses were to be examined, the Court should adjourn the case on that day and direct the accused to attend the Court on the next date fixed, so that the evidence of the prosecution witnesses could be recorded in his presence. Where this procedure was not adopted and the Magistrate records in the order sheet that the witnesses were cross-examined, the non- compliance with section 353 of the Code was held to have vitiated the entire trial. That was a case where personal attendance of accused was dispensed with and the evidence of the witnesses was recorded in the absence of his pleader.
In case of Banchhanidhi Singh -Vrs- State of Orissa reported in 1990 Criminal Law Journal 397 were the accused was facing trial for the offence under section 379 Indian Penal Code and the personal attendance of the accused was dispensed with and during examination of the prosecution witnesses, the lawyer representing the accused was not present, the High Court held that the examination of the witnesses was made in gross violation of the mandatory provisions of section 20 273 Cr.P.C. and on that score the entire trial was held to be vitiated.
In case of the State of M.P. -Vrs.- Budhram reported in 1996 Criminal Law Journal 46, the conviction of the accused under section 302 of IPC and the death sentence imposed on him was set aside on the ground that the trial was vitiated as the evidence of the witnesses was recorded in the absence of the accused and the case was remanded back for trial.
In case of State of Maharashtra Vrs.- Dr. Prafulla B. Desai reported in AIR 2003 SC 2053, it was held as follows:
"12. ....... Thus section 273 provides for dispensation for personal attendance. In such cases, evidence can be recorded in the presence of the pleader. The presence of the pleader is thus deemed to be the presence of the accused. The section 273 contemplates constructive presence".
In case of Bal Kishan -Vrs- State of Rajasthan reported in 1998 Criminal Law Journal 2425, it was held that sections 273 and 244 of the Code of the Criminal Procedure lay down the general principle that the evidence on which the prosecution proposes to rely for the purpose of framing of charge as well as for recording a conviction must be recorded in 21 presence of the accused person after he has appeared in Court and in exceptional circumstances only the evidence recorded elsewhere or in some other mode may be permitted to be used against the accused, if expressly provided by the Code.
Law is well settled that any provision of law cannot be defeated or be rendered redundant basing on the agreement between the parties. Trial of an accused has to be conducted in accordance with the procedure established by law. Neither the prosecution nor the accused had any right to make an agreement which would be contrary to the express provisions of law. The consent of the accused or his counsel to take down the evidence in course of trial in their absence is not permissible in the eye of law.
Section 278 Cr.P.C. also indicates that after completion of the recording of the evidence of each witness, it shall be read over to the witness in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader.
Section 279 Cr.P.C. indicates that if the evidence is given in a language which was not understood by the accused and he is present in Court in person, it shall be interpreted to him in open Court in a language understood by him. Similarly, if the accused appears by pleader who does not understand the 22 language of the evidence then such evidence shall be interpreted to the pleader in the language of the Court.
These three sections clearly envisage the importance of presence of the accused or his counsel at the time of recording of evidence by the Court.
12. The fundamental requirement is that a Judge presiding over a criminal trial has the sacrosanct duty to demonstrate that he applies the correct principles of law to the facts of the case. During the course of trial, the learned presiding Judge is expected to work objectively and in a correct prospective.
Section 465 Cr.P.C. is intended to cure any error, omission, irregularity or infraction of procedural law committed by the Court of competent jurisdiction, unless such irregularity or illegality has in fact occasioned a failure of justice. The object of the section is to secure justice by preventing the invalidation of a trial on the ground of technical breaches of any provisions of the Code causing no prejudice to the accused. The procedural laws are designed to further the ends of justice and not frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well-understood principles that accord with our notions of natural justice. If there is substantial compliance with the requirements of law providing 23 the accused a full and fair trial in accordance with principle of natural justice, no order of a competent Court should be reversed or altered in appeal or revision on account a procedural irregularity unless the same results in miscarriage of justice. In judging the question of prejudice, Courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair trial; whether he knew that he was being tried for; whether the main facts sought to be established against him were explained to him fairly and clearly; and whether he was given a full and fair chance to defend himself.
In view of what we have discussed above, the procedure adopted by the learned trial Court after clubbing up both the cases on the prayer of the Associate Public Prosecutor in summoning P.W.2 and P.W.3 for cross-examination is wholly illegal and cannot be sustained in the eye of law. The evidence of P.W.2 and P.W.3 were initially recorded in the connected Sessions trial where the co-accused was facing the trial. Such recording of evidence is obviously in the absence of the appellant and his counsel. Therefore, mere affording of opportunity for cross-examination to the appellant is not sufficient. P.W.2 and P.W.3 should have been examined afresh. In our opinion, the procedure adopted by the learned trial Court is not a case of 24 mere irregularity curable under section 465 Cr.P.C. but an illegality. The very use of such evidence against the appellant is by itself a proof of prejudice to him. The consent of the appellant or his counsel to cross-examine those two witnesses will not cure this procedural irregularity which has resulted in causing substantial illegality.
13. Accordingly, we are of the view that the impugned judgment and order of conviction of the appellant and the sentence passed thereunder is not sustainable in the eye of law and therefore the same is hereby set aside so far as the appellant is concerned.
Matter is remitted back to the learned trial Court for examination of P.W.2 and P.W.3 afresh affording sufficient opportunity for cross-examination to the counsel for the appellant. Since the recording of the other witnesses was in the presence of the appellant and his counsel and opportunity of cross-examination have been provided to the counsel for the appellant, those witnesses need not be examined again. However, after completion of the recording of the evidence of P.W.2 and P.W.3, if any petition is filed under section 311 Cr.P.C. by either of the parties to recall any other witness already examined for the exigencies mentioned therein, the same should be considered in accordance with law by the learned trial Court. 25
The trial Court is directed to record the accused statement afresh and give an opportunity to the appellant to adduce defence evidence and thereafter proceed to hear the argument and deliver the judgment. The entire exercise should be completed within a period of three months from the date of receipt of the judgment with the L.C.R. Any observation made in this judgment shall not influence the learned trial Court to adjudicate the matter afresh in accordance with law.
Since the appellant was on bail during trial granted by this Court in BLAPL No.1741 of 2009 vide order dated 22.7.2009, he should be allowed to be released on bail pending disposal of the trial.
Registry is directed to send back the L.C.R. along with a copy of the judgment to the learned trial Court for compliance.
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S. K. Sahoo, J.
Vinod Prasad, J. I agree.
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Vinod Prasad, J.
Orissa High Court, Cuttack
Dated 19th November, 2015/Nayak.
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