Karnataka High Court
Naga Alias Nagaraja vs State By Station House Officer on 23 October, 2002
Equivalent citations: 2003CRILJ754, ILR2002KAR5129, 2003(3)KARLJ234
Author: H.N. Narayan
Bench: H.N. Narayan
JUDGMENT H.N. Narayan, J.
1. These two appeals by accused 1 and 2 are directed against the judgment of conviction and sentence recorded against them by the Presiding Officer, Fast Track Court, Bangalore Rural District, Bangalore, who by his judgment dated 10th May, 2002 convicted the appellants 1 and 2 for offence punishable under Section 302 of the IPC and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- each, in default, to suffer imprisonment for three more months and ordered the sentence to run concurrently.
2. The Harohalli Police in Bangalore Rural District, Bangalore, laid a charge-sheet against 10 accused persons alleging offences punishable under Section 302 read with Section 34 of the IPC and Section 120-B read with Section 302 of the IPC against accused 1 and 2 and under Section 114 read with Section 302 of the IPC against accused 3 to 9 and under Section 212 of the IPC against accused 10. It is alleged that on 4-2-1995 at about 8 a.m. at Kollinganahalli Village, accused 1 and 2 with the common intention had committed murder of Jayarama by intentionally or knowingly causing the death of the said person and earlier to 4-2-1995, they agreed to do or cause to do an illegal act of getting C.W. 8 married to accused 1 and to get her mother's property and since deceased Jayarama was married to C.W. 8, they wanted to kill Jayarama by illegal means and the said act was done in pursuance of the agreement and that accused 3 to 9 abetted the commission of murder by accused 1 and 2 and that accused 10 harboured accused 1 and 2 after they had committed the murder of deceased Jayarama.
3. The prosecution mainly rests its case on the direct evidence of P.Ws. 1 to 3 and 24 and other circumstances like the homicidal death of Jayarama on the early morning of 4-2-1995, the motive for the commission of the offence and the recovery of weapons of offence used by accused 1 and 2 for the commission of the offence of murder. It is unnecessary for us to go into the details of the prosecution case as the arguments of the learned Counsels for the appellants is essentially directed on one question viz., the prejudice caused to them for not properly examining the accused/appellants as required under Section 313 of the Cr. P.C,
4. Before we take up this contention, we think it proper to refer to certain facts which have some bearing on this question,
5. Four Sessions Judges are involved in the trial of this Sessions case from the date of framing of charges on 3rd March, 1999 till the judgment was rendered by the Presiding Officer, Fast Track Court on 10th May, 2002. While the charges are framed by one Sessions Judge, the evidence in this case has been recorded by two Sessions Judges. The statement of the accused is recorded by the Judge, who delivered the judgment. Though the learned Judge who framed the charge against accused 1 and 2 refers to their common object in the commission of murder, there is no common object as such in prosecution of which accused 1 and 2 committed murder. The learned Sessions Judge rightly invoked Section 34 of the IPC against accused 1 and 2 but accused 1 and 2 are convicted for offence under Section 302 of the IPC without reference to the common intention while committing the said offence.
6. The learned Sessions Judge while convicting accused 1 and 2 for the offence of murder, acquitted accused 3 to 10 of the offences with which they stand charged. The judgment of acquittal recorded against accused 3 to 10 has not been challenged by the State. The first appellant has assailed the judgment of conviction and sentence recorded against him essentially on the grounds that Ex. P. 16, the complaint filed by P.W. 24-Kempaiah is not at all sustainable in law as P.W. 24-Kempaiah was not an eye-witness. The recovery of choppers said to have been recovered by the Investigating Officer on the basis of the information furnished by the accused under the panchanama, Ex. P. 11 is not at all proved and that the recoveries have no bearing on the facts of the issues involved in this case and therefore, the judgment of conviction and sentence which is impugned by this appeal has resulted in serious miscarriage of justice and deserves to be reversed. The judgment is also assailed on the ground that the learned Sessions Judge has not followed the mandatory requirements of law as contemplated under Sections 190, 228 and 313 of the Cr. P.C. while taking cognizance of the offence during trial and while recording the statement of the accused. This procedural illegality committed by the learned Trial Judge has seriously prejudiced the defence of the accused, trial of the case and therefore stands vitiated. However, accused 2 who has assailed the judgment of the Trial Court has not taken up this specific contention, though the judgment is assailed on other grounds.
7. The matter is taken up on priority upon the mention made by Sri C.V. Nagesh, learned Counsel appearing for the appellant in Cri. A. No. 886 of 2002. We heard the arguments of Sri C.V. Nagesh and Sri S.K. Venkata Reddy, learned Counsels appearing for the appellants in both these appeals. We also heard the arguments of Sri B.C. Muddappa, Additional State Public Prosecutor for the State.
8. Sri C.V. Nagesh, learned Counsel for the appellant in Cri. A. No. 886 of 2002 contended that Ex. P. 16, the complaint has come into existence after P.W. 35, the Investigating Officer visited the place of incident. The time of incident given in the charge is different from the one given by the witnesses. The first information reached the police much earlier to 9.45 a.m. Therefore, the edifice of prosecution structure stands on false and loose foundation and therefore Ex. P. 16 is liable to be discarded by the Court. It is also his contention that the eyewitnesses account is not supported by medical evidence and the evidence of the eye-witnesses is not effective. Moreover, P.Ws. 1 and 2 have not fully supported the prosecution. They were hesitant to speak the truth and it is not safe to rely upon the evidence of untruthful witnesses. It is also contended that M.Os. 1 and 2, the choppers said to have been recovered after obtaining police remand from judicial custody, no credence can be given to such recovery. His main thrust of argument is on the question that the trial vitiates for non-compliance of the mandatory provisions of Section 313 of the Cr. P.C.
9. Sri S.K. Venkata Reddy, learned Counsel for the other appellant in Cri. A. No. 1229 of 2002 though has not specially pleaded in his appeal memo this very contention, supported the contentions raised by Ms learned colleague Sri C.V. Nagesh. He has particularly relied upon the Commentary on the Code of Criminal Procedure authored by Justice V.V. Chaudrachud and V.R. Manohar, 16th Edition at page 955. Learned Counsels for the appellants have also relied on series of judgments by the Apex Court and this Court in support of their last contention.
10. Learned Additional State Public Prosecutor while justifying the judgment agreed with the learned Counsels on one question viz., that the learned Trial Judge has not followed the mandatory provisions of Section 313 of the Cr. P.C. in not putting the incriminating material occurring in the evidence of P.Ws. 1 and 2 but relied on their evidence. The learned Trial Judge who recorded the statement of the accused with reference to the evidence of P.W. 24 has not relied upon that evidence while holding the accused guilty of the offence of murder.
11. In the light of these contentions, we do not propose to consider the appeals on merits except on this important question viz., whether non-compliance of the mandatory provisions of Section 313 of the Cr. P.C. vitiates the trial.
12. The power to examine the accused is provided in Section 313 of the Cr. P.C., which reads as follows:
"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".
There are two kinds of examinations under Section 313 of the Cr. P.C. The first relates to examination at any stage of the inquiry or trial, while the second takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular and optional; but the latter is general and mandatory. In Usha K. Pillai v. Raj K. Srinivas and Ors., the Apex Court held that the Court is empowered by Clause (a) to question the accused at any stage of the inquiry or trial, while Clause (b) obligates the Court to question the accused before he enters his defence on any circumstances appearing in prosecution evidence against him. It is also held by the Apex Court in Parichhat and Ors. v. State of Madhya Pradesh, that the real importance of Section 313 of the Cr. P.C. lies in that 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 is given to him to explain any such point.
13. The purpose of Section 313 of the Cr. P.C. is set out in its opening words 'for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him'. In the case of K.C. Mathew and Ors. v. State of Travancore-Cochin, the Apex Court laid down as follows:
"If the accused is not afforded that opportunity, he is entitled to ask the Appellate Court to place him in the same position as he would have been in had he been asked. In other words, he is entitled to ask the Appellate Court, which is the ultimate Court of fact, to take the explanation that he would have given in the first Court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along. But, if he is reticent even there, the Court is entitled to conclude that a person who deliberately withholds facts within his special knowledge and refuses to give the Court that assistance which is its right and due has nothing of value which he can disclose and that if he did disclose anything that would at once expose the hollow-ness of his cause. He is in a little better position than he would be in had he, say omitted to call, in his defence, a witness, who, he says, would have deposed in his favour. If he complains of prejudice for the first time in the Supreme Court, the inference is strong that the plea is an afterthought and that there was no real prejudice".
It is also well-settled that in an examination of the accused under Section 313 of the Cr. P.C., the Sessions Judge, in rolling up several distinct matters of evidence in a single question, acts irregularly. Examination under this section is not intended to be an idle formality, it has to be carried out in the interest of justice and fair play to the accused. By a slipshod examination, which is the result of imperfect appreciation of evidence, idleness or negligence, the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence. The Appellate Court must always consider whether by reason of failure to comply with the procedural provision of this section, which does not affect the jurisdiction of the Court, the accused is materially prejudiced.
14. In Hate Singh Bhagat Singh v. State of Madhya Pradesh, it has been laid down that the statements of accused persons recorded under Section 313 'are among the most important matters to be considered at the trial'. Therefore, the object of this section is to enable the accused to explain each and every circumstance appearing in the evidence against him. Thus, the importance of observing faithfully and fairly, the provisions of this section cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and concluded in a form which an ignorant or illiterate person will be able to appreciate and understand. Fairness, therefore, requires that each material circumstance 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.
15. In S. Harnam Singh v. State (Delhi Administration), at Head-note "B", the Apex Court observed at para 22 as follows:
"Section 342 of the Code of Criminal Procedure, 1898, casts a duty on the Court to put, at any enquiry or trial, questions to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact, occasion a failure of justice, it is curable under Section 537 of the Code".
The Apex Court further observed at para 25 as follows:
". . . . The conclusion is therefore, inescapable that on the facts of this case, the aforesaid non-compliance with Section 342 of the Cr. P.C. coupled with the non-production of the three material witnesses had caused miscarriage of justice. We therefore think that these irregularities have vitiated the trial and conviction of the appellant".
At para 26, a further question canvassed before the Court was whether the case should be sent back for retrial. Answering this question, the Apex Court held that:
"Again, answer to this question in the circumstances of the case, must be in the negative. Firstly, the appellant on account of his acquittal on the graver charge under Section 5(1) of the Prevention of Corruption Act, stands exonerated of the allegation that he made these entries with any motive or intention to gain a pecuniary advantage. Secondly, his co-accused stands acquitted of all the charges. Thirdly, these proceedings against the accused commenced as far back as May 13, 1959 and the appellant has suffered enough privation, harassment and expense which is a necessary concomitant of protracted criminal proceedings".
16. It is also settled that when an omission is not prejudicial to the accused, the omission amounts merely to an irregularity and does not vitiate the trial. The onus is on the accused to prove that he has been prejudiced for not being examined under Section 313 of the Cr. P.C. It is also settled that an accused cannot be convicted merely on the statement made by the accused under Section 313 of the Cr. P.C.
17. In Sharad Birdhichand Sarda v. State of Maharashtra, , the Apex Court held on this question as follows:
"Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstance Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973, they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh, supra, this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code, 1973), the same cannot be used against him".
18. The Division Bench of this Court in Vaijinath v. State of Karnataka, 1993(1) Kar. L.J. 234 : considered the question of recording joint statement of all the accused persons under Section 313 of the Cr. P.C. as non-compliance of Section 313 of the Cr. P.C. The Division Bench held that recording joint statement of the accused persons is violation of provisions of Section 313 of the Cr. P.C. and this itself is an illegality as infringing the provisions of the Statute and therefore, held that the entire judgment is vitiated by this illegality and set aside the judgment of conviction and sentence passed by the Trial Court and remitted the case to the Trial Court with a direction to register it in its original number, examine each of the accused separately as required under Section 313 of the Cr. P.C. and dispose of the said case in accordance with law.
19. We have very carefully noticed from the cases referred to supra that certain omission to put the incriminating evidence to the accused persons were directed to be ignored as such evidence cannot be relied upon. Learned Counsels on both sides have not placed before us any judgment which has laid down the proposition as to what happens to a case where the material evidence is not put to the accused, say, the evidence of eye-witnesses, but relied on that evidence to convict the accused. We have considered a few hypothetical questions in the light of the facts set out before us in many number of cases. In a case where the prosecution relies on few circumstances in proof of the guilt of the accused and if the learned Trial Judge has failed to examine the accused under Section 313 of the Cr. P.C. with reference to those circumstances relied upon by the prosecution, still records a finding of guilt or in the alternative records a finding of acquittal, the question is whether the trial vitiates. Another hypothetical question where the prosecution relies on the evidence of the eye-witnesses who fully support the prosecution, the learned Trial Judge fails to examine the accused with reference to this incriminating evidence occurring against him which is spoken to by these eye-witnesses and records a finding of conviction, whether the trial vitiates.
20. We have given our anxious consideration to these hypothetical questions as such a thing has been done in this case. Non-compliance of mandatory provisions of Section 313 of the Cr. P.C. vitiates trial, if it is not in conformity with law and prejudices not only the accused but also the prosecution. It is an error essentially committed by the learned Sessions Judge when the Court is required to exercise or act in accordance with law. Failure on the part of the learned Trial Judge to comply the mandates of law, the benefit, in our opinion, cannot accrue either to the prosecution or to the accused. Since the justice suffers in the hands of the Court, the same has to be rectified or corrected in the appeal.
21. We have already noticed that the prosecution has relied on the direct evidence of P.Ws. 1, 2, 3 and 24. P.W. 3-Bhagyamma has turned completely hostile. P.Ws. 1 and 2 have partly supported the prosecution case. But have spoken to the presence of the accused, the assault made by them on the deceased Jayarama and that when they were cross-examined by the Public Prosecutor, they further supported the prosecution. P.W. 24 is another witness who has supported the prosecution case. The Presiding Officer, Fast Track Court, who noticed that P.Ws. 1 and 2, the eye-witnesses were hostile witnesses, has not taken pains to read their evidence and brought to the notice of the accused the incriminating evidence occurring in their evidence against the accused. We have carefully perused the evidence of P.Ws. 1 and 2 who have incriminated the accused in the commission of the offence. In his judgment, the learned Trial Judge has relied upon the evidence of P.Ws. 1 and 2 not only to answer the first question that the death of the deceased Jayarama in this case was homicidal but relied on their evidence also to hold the accused persons 1 and 2, the two appellants herein guilty of the commission of murder. A reference is made by the learned Trial Judge to the evidence of P.Ws. 1 and 2 at paras 14 and 16 of the judgment. At para 14, it is observed by the learned Trial Judge as follows:
"From the evidence of P.W. 1-Puttaswamychari, the first hostile witness, it is seen on the date of incident, the deceased Jayarama had gone to his blacksmithy to have a nail fixed to his cart. At that time A. 1 and A. 2 had come there and when P.W. 1 was busy in his work, the 2nd accused hit Jayarama with Machu (chopper) on his thigh, out of fear he ran away and had not seen who else had assaulted Jayarama and Jayarama had fallen dead at a distance of about 100 feet.
P.W. 2-Hanumaiah, the 2nd hotile witness also had spoken about the presence of accused 1 and 2 at the blacksmithy of P.W. 1 when the deceased Jayarama had come there. He too had spoken that A. 1 and 2 had hit Jayarama on the legs and Jayarama fell down. Thus from the testimony of these two hostile witnesses, it is clear that deceased Jayarama and the accused 1 and 2 were very much present at the blacksmithy of P.W. 1 on the date of incident".
At para 16, the learned Trial Judge recorded his findings as follows:
"From the evidence of P.Ws. 1 and 2-Puttaswamachari and P.W. 2-Hanumaiah, it is borne out that the deceased Jayarama was hit with Machus/choppers".
We have referred to this discussion of the learned Trial Judge in his judgment to highlight the fact that the learned Sessions Judge who relied upon the evidence of these two hostile witnesses has failed to put their statements to the accused as required under Section 313 of the Cr. P.C. Though P.W. 24-Kempaiah is examined as an eye-witness who has also incriminated the accused 1 and 2 in the commission of the offence, his evidence is particularly ignored by the Trial Court. There is no reference to his evidence at all. The learned Trial Judge has not stated whether the evidence of P.W. 24 is reliable and trustworthy. The conviction is essentially based on the evidence of P.Ws. 1 and 2. Questions 4, 5 and 7 in particular prepared by the learned Trial Judge runs to half page and full page. We do not expect this type of questions to be put to the accused by an experienced Judge who is specially picked up to preside over a Fast Track Court.
22. The Commentary found at page 955 of Code of Criminal Procedure by Justice Y.V. Chandrachud and V.R. Manohar also refers to Sharad Birdhichand Sarda's case, supra; M. Mammutti v. State of Karnataka, and Harijan Megha Jesha v. State of Gujarat,. Learned Counsels for the appellants sought to contend that the circumstances if not put to the accused, the same must be completely excluded because the accused did not have any chance to explain them. Since the settled position of law is very clear, we have no dispute about the contention of the learned Counsel. But we are called upon to answer the question which we have already discussed supra as to the result of the case where a total failure on the part of the Trial Court to follow the mandates of law, it not only prejudices the accused but also the prosecution and where the trial vitiates, whether the Appellate Court has to order de novo trial or retrial from the stage of recording of statement under Section 313 of the Cr. P.C. In Sharad Birdhichand Sarda's case, supra, the Apex Court refused to remit the matter to the Court below on two grounds that the matter was pending for over 16 years and that the appellants were acquitted on the main charge and that the co-accused had been acquitted of all the charges. Those circumstances did not exist in this case. Therefore, the circumstances under which the cases referred to supra were decided, do not fit into the case on hand as the very question did not come up before the Apex Court for consideration in the cases cited supra.
23. However, we may usefully refer to the judgment of the Apex Court in State through Superintendent of Police, CBI/SIT v. Nalini and Ors., wherein it is observed, "while answering the contention of the defence Counsel that Mr. Natarajan appears to be right to an extent. We have however again to consider this from the angle of prejudice to the accused. But then, if there is error on this count, that can also be corrected by the reference Court by again examining the accused".
24. In State (Delhi Administration) v. Dharampal, has reiterated the law laid down earlier by the Apex Court in the case of Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra, which is as follows:
"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperial the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the Appellate Court to call upon the Counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the Appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the Trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the Trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342 of the Cr. P.C., the omission has not been shown to have caused prejudice to the accused".
12. The same view has been reiterated by this Court in the case of Basavaraj R. Patil and Ors. v. State of Karnataka and Ors.
13. Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the Appellate Court can always make good that lapse by calling upon the Counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him.
14. This being the law, in our view, both the Sessions Judge and the High Court were wrong in concluding that the omission to put the contents of the certificate of the Director, Central Food Laboratory, could only result in the accused being acquitted. The accused had to show that some prejudice was caused to him by the report not being put to him. Even otherwise, it was the duty of the Sessions Judge and/or the High Court, if they found that some vital circumstance had not been put to the accused, to put those questions to the Counsel for the accused and get the answers of the accused. If the accused could not give any plausible or reasonable explanation, it would have to be assumed that there was no explanation. Both the Sessions Judge and the High Court have overlooked this position of law and failed to perform their duties and thereby wrongly acquitted the accused".
25. Thus, in our opinion, the accused/appellants are not entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 of the Cr. P.C. We agree to some extent that the accused are prejudiced in this case as they were convicted by the learned Sessions Judge without following the mandatory provisions of Section 313 of the Cr. P.C. We are not satisfied with the mode adopted by the learned Sessions Judge while recording the statements of the accused/appellants and also the slipshod way of writing the judgment without considering the entire evidence on record. The judgment is vitiated not only for non-compliance of mandatory provisions of Section 313 of the Cr. P.C. but also suffers for want of application of mind and the judgment is rendered without reference to the evidence on record. We disagree with the contentions raised by the learned Counsels for the appellants. It is a fit case which requires retrial from the stage of recording of statement under Section 313 of the Cr. P.C. In the result, these appeals are allowed. The judgment of conviction and sentence recorded against accused 1 and 2 is set aside. We direct for retrial of the case from the stage of recording of statement under Section 313 of the Cr. P.C. We direct the learned Trial Judge to frame the questions simply, distinctly and separately and question the accused thoroughly with reference to the incriminating evidence occurring against them and dispose of the matter as expeditiously as possible in accordance with law within three months from the date of receipt of this judgment.