Karnataka High Court
Thippeshappa vs The State Of Karnataka on 4 November, 2020
Bench: B.Veerappa, K.Natarajan
R
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF NOVEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.744/2015
BETWEEN:
THIPPESHAPPA,
S/O GULIRANGAPPA,
AGED ABOUT 26 YEARS,
OCC:COOLIE,
R/O.BORANAHALLI-HATTI,
KOLALKERE TALUK,
CHITRADURGA DISTRICT-577526.
...APPELLANT
(BY SRI PRABHUGOUDA B. TUMBIGI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY RURAL POLICE CHIKKAMAGALURU,
REPRESENTED BY S.P.P.
HIGH COURT BUILDING,
BANGALORE-560001.
...RESPONDENT
(BY SRI S. RACHAIAH, HIGH COURT GOVERNMENT
PLEADER)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 24.03.2015 PASSED BY THE
LEARNED II ADDITIONAL SESSIONS JUDGE AT
CHIKKAMAGALURU IN SC NO.32/2014 AND ACQUIT THE
APPELLANT IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The accused filed the present Criminal Appeal against the judgment and order of conviction dated 24.03.2015 made in S.C.No.32/2014 on the file of the II Additional Sessions Judge, Chikkamagaluru, sentencing the accused/appellant herein to undergo imprisonment for life and to pay fine of Rs.3,000/-, in default of payment of fine, to undergo further sentence of simple imprisonment for a period of three months, for the offence punishable under Section 302 of the Indian Penal Code.
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I. FACTS OF THE CASE
2. It is the case of the prosecution that the accused being the husband of the deceased Kamalamma, on 14.02.2001, early in the morning at about 4.00 am, in the vacant land of Sri Erappa and Puttegowda, bearing Sy.No.247 of Undedasarahalli, Chikkamagaluru, committed the murder of Kamalamma intentionally by strangulating her with a nylon rope, when she was sleeping, as she refused to accompany the accused to his native place at Boranahalli, Holalkere Taluk. Based on the complaint made by P.W.1-mother of the deceased, the jurisdictional police conducted the investigation and filed absconding charge sheet for the offence punishable under Section 302 of the Indian Penal Code. The learned Magistrate recorded the evidence of the prosecution witnesses under Section 299 of the Code of Criminal Procedure and after apprehending the accused in the year 2014, the matter was committed the Court of Sessions. The learned 4 Sessions Judge framed the Charge on 12.06.2014, read over and explained the same to the accused who pleaded not guilty and claimed to be tried.
3. In order to prove its case, the prosecution examined ten witnesses as P.Ws.1 to 10 and marked the documents Exs.P.1 to P.12 and the material objects M.Os.1 to 9. After completion of the evidence of prosecution witnesses, the statement of the accused was recorded as contemplated under Section 313 of the Code of Criminal Procedure. Though the accused denied all the incriminating evidence adduced against him, did not choose to adduce any oral or documentary evidence in the defence.
4. Based on the evidence and material documents, the learned Sessions Judge, framed a point for consideration. After consideration of both oral and documentary evidence on record, the learned Sessions 5 Judge recorded a finding that the prosecution proved beyond reasonable doubt that the accused being the husband of the deceased Smt. Kamalamma, on 14.02.2001 early in the morning at about 4.00 am, in the vacant land of Sri Erappa and Puttegowda bearing Sy.No.247 of Undedasarahalli, Chikkamagaluru, committed her murder intentionally, when she was sleeping by strangulating her neck with a nylon rope as she refused to accompany the accused and thereby, committed an offence punishable under Section 302 of the Indian Penal Code.
5. Accordingly, the learned Sessions Judge, by the impugned judgment of conviction and order of sentence, sentenced the accused to undergo imprisonment for life and to pay fine of Rs.3,000/- for the offence punishable under Section 302 of the Indian Penal Code, in default of payment of fine, to undergo further sentence of simple imprisonment for a period of three months. 6 Hence, the present Criminal Appeal is filed by the accused/appellant.
6. We have heard the learned counsel for the parties.
II. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT
7. Sri Prabhugouda B. Tumbigi, learned counsel for the appellant/accused contended with vehemence that the impugned judgment and order of conviction passed by the learned Sessions Judge is without any basis and is liable to be set-aside. The prosecution has not proved the marriage of the accused with the deceased and the presence of the appellant at the scene of the incident. Except the evidence of P.W.1- mother of the deceased, P.W.2-brother of the deceased and P.W.5- a relative of the deceased, who are also eye witnesses to the incident and highly interested witnesses, the prosecution has not adduced any other independent evidence to prove the involvement of the accused in the alleged incident that 7 occurred on 14.02.2001 as per the Charge framed by the learned Sessions Judge.
8. The learned counsel for the appellant further contended that the entire case of the prosecution is based only on the highly interested witnesses. The prosecution has not proved the motive for the offence. The presence of the accused at the place of the incident and his involvement in the alleged offence is not at all proved by the prosecution. Therefore, implication of the accused by the prosecution is without any basis. He further contended that P.W.7-Dr.Hanumantharayappa, has stated in his evidence that he has given his opinion based on the information given by the police and has not investigated the matter in any other angle. He has also admitted that in any case of strangulation, there should be two ligature marks. In the present case there is only one mark. The said evidence which is fatal to 8 the case of the prosecution has not been considered by the learned Sessions Judge.
9. The learned counsel for the appellant further contended that the appellant was eking out livelihood by doing coolie work at his home place and other nearby places and has not committed any offence much less the alleged offence, hence question of absconding would not arise at all, but the family members of the deceased have falsely implicated the accused as the accused and the family members of the deceased were not in good terms. He further contended that the evidence of the prosecution witness clearly depicts that there was no struggling, no hue and cry and no injuries on the body of the deceased which clearly depicts that no such incident took place and the evidence of the alleged eye witnesses clearly depicts that the accused was not at all present at the time of the incident. The learned Sessions Judge proceeded to convict the accused based 9 on assumption and presumptions. The evidence of highly interested witnesses-P.W.1, P.W.2 and P.W.5 are inconsistent and contradictory to each other. Therefore, learned counsel sought to allow the Criminal Appeal.
III. ARGUMENTS ADVANCED BY THE LEARNED HCGP
10. Per contra, Sri S.Rachaiah, learned High Court Government Pleader, while justifying the impugned judgment and order of conviction, contended that, in the cross-examination of the prosecution witnesses the involvement of the accused has been clearly deposed and there is no inconsistency in the statements of the witnesses. He referred to paragraph-7 in the cross- examination of P.W.5, an eye witness, who has stated that on the date of the incident, after returning from the movie, the accused and the deceased consumed alcohol, had their dinner and slept in their tent which clearly 10 indicates that the accused was present as on the date and time of the incident. P.Ws.1, 2 and 5 have specifically stated on oath that they are eye witnesses to the incident and the accused strangulated the deceased with nylon rope on the neck. P.W.1, on seeing the incident, screamed and accused ran away. The said evidence is corroborated with the evidence of P.Ws.2 and 5.
11. The learned HCGP further contended that the P.W.7-Doctor who examined the deceased and conducted post mortem on the dead body, issued Ex.P.9-post mortem report and opined that the death was due to asphyxia as a result of strangulation. On the specific assertion made by the Investigating Officer, P.W.7-Doctor, referring to Ex.P.11-report stated that the deceased died due to strangulation with nylon rope. Immediately after noticing the struggle of his wife, it is the duty of the husband to take her to the hospital to 11 save her life. Instead of doing so, the accused has ran away from the place of the incident and was absconding for more than 13 years which made the police to search the accused in the entire State and ultimately, was apprehended on 07.03.2014. The conduct of the accused itself is one of the circumstances to take criminal action against him. The learned Sessions Judge considering the entire material on record, has proceeded to convict the accused with punishment of imprisonment for life, which is just and proper. This Court cannot interfere with the impugned judgment of conviction and order of sentence in exercise of appellate powers under Section 374 of the Code of Criminal Procedure and therefore, sought to dismiss the Criminal Appeal.
IV. POINT FOR DETERMINATION
12. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration in the present Appeal is: 12
"Whether the appellant/accused has
made out a case to interfere with the
impugned judgment and order of conviction, convicting the accused for the offence punishable under the provisions of Section 302 of the Indian Penal Code with imprisonment for life with fine of Rs.3,000/-, in the facts and circumstances of the case?"
13. The substance of the prosecution case is that the P.W.1 filed complaint dated 14.02.2001 before the jurisdictional police stating that the marriage between the deceased and the accused was love marriage. They used to go for coolie work in various places of Chikkamagaluru District. On the unfortunate day, at about 4 am, the accused strangulated the deceased with nylon rope. It is the specific case of the prosecution that P.Ws.1, 2 and 5-eye witnesses, who are the mother, brother and relative of the deceased have stated on oath that the accused strangulated the deceased with nylon rope. The Doctor who examined the dead body has 13 opined that the death is due to asphyxia as a result of strangulation. Based on the aforesaid materials, the learned Sessions Judge proceeded to convict the accused.
V. EVIDENCE OF THE PROSECUTION WITNESSES AND DOCUMENTS RELIED UPON
14. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the material documents relied upon.
(i) P.W.1-Nagamma, complainant and mother of the deceased, eye witness to the incident has supported the case of the prosecution.
(ii) P.W.2-Shivaraja, brother of the deceased
and eye witness to the incident,
supported the case of the prosecution.14
(iii) P.W.3-Ramanayak, witness to the spot mahazar-Ex.P.2 and inquest mahazar-
Ex.P.3, turned hostile.
(iv) P.W.4-Kumara, witness to the spot mahazar-Ex.P.2 and inquest mahazar-
Ex.P.3, turned hostile.
(v) P.W.5-Krishna, relative of the deceased and eye witness, supported the case of the prosecution.
(vi) P.W.6-Era, relative and hear say witness has stated that he heard about the incident from P.W.2 and supported the case of the prosecution.
(vii) P.W.7-Dr.Hanumantharayappa,conducted postmortem of the dead body and issued the report as per Ex.P.9. He also issued report as per Ex.P.11 and opined that the death was due to asphyxia as a result of 15 strangulation, and supported the case of the prosecution.
(viii) P.W.8-V.Rathnakara, Revenue Inspector, issued the pahani as per Ex.P.4 where the incident occurred and supported the case of the prosecution.
(ix) P.W.9-H.T.Duggappa, CPI and
Investigating Officer, conducted the
Investigation and filed the charge sheet against the accused.
(x) P.W.10-Madhu, witness to the seizure mahazar-Ex.P.5 turned hostile.
15. Based on the aforesaid oral and documentary evidence, the learned Sessions Judge proceeded to pass the impugned judgment of conviction and order of sentence.
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VI. CONSIDERATION
16. This Court being the Appellate Court, it is necessary to consider each and every circumstance as to how the learned Sessions Judge proceeded to convict the accused. The learned counsel for the appellant/ accused contended with vehemence that the prosecution has failed to prove the marriage between the accused and the deceased and there is improvement in the evidence of P.Ws.1, 2 and 5, which cannot be accepted. In the complaint-Ex.P.1, it is clearly stated by P.W.1, mother of the deceased that the accused and deceased were married and it was a love marriage and they were doing coolie work, together. In the statement recorded under Section 313 of the Code of Criminal Procedure, the learned Sessions Judge posed a specific question at Sl.No.2 to the accused that, "P.W.1- Smt.Nagamma on 23.05.2007, in her examination-in- chief has stated that you accused being the husband of the deceased Kamalamma married her after loving her. 17 What do you say for this? and the accused answered 'YES'. Question No.3 was, "P.W.1 has further stated in her examination-in-chief that after your marriage, you were residing in Chitradurga. What do you say for this?. The accused answered 'YES'. Therefore, the contention of the learned counsel for the appellant/accused that the prosecution has not proved the marriage between the accused and deceased cannot be accepted.
17. P.W.1-mother, P.W.2-brother and P.W.5-relative of the deceased who are eye witnesses to the incident have stated in categorical terms that, on the date of the incident, the accused strangulated the deceased with nylon rope and on hearing the screaming of P.W.1, the accused ran away from the spot. The said statement is corroborated with the evidence of P.Ws.2 and 5. In fact, in the cross-examination it was suggested to the P.W.1 that the accused was not known prior to the marriage of 18 the deceased. The said suggestion was admitted by the P.W.1. The P.W.1 denied the suggestion that the deceased was suffering from lump in the neck and surgery was made and due to the same, she died. Admittedly, the accused has not taken any defence nor produced any material document. Though said question was posed to all eye witnesses, they have categorically denied.
18. In fact, P.W.2 has admitted the suggestion that six months prior to 2001, his sister-deceased Kamalamma had married the accused and it was a love marriage and the accused was not related to them. After the marriage, the deceased was with them for some time. P.W.5-maternal uncle of the deceased has admitted the suggestion that on the date of the incident, the deceased Kamalamma, accused and P.W.1 returned at about 9pm after watching movie, consumed alcohol and had their dinner and went to sleep at about 10 pm which clearly 19 depicts that as on the date of the incident, as stated by P.W.1, 2 and 5 who are natural witnesses, the accused was very much present at the spot.
19. It is for the accused, husband of the deceased to prove that he was not present at the spot on the date of the incident, in view of the provisions of Section 106 of the Indian Evidence Act, 1872. Unfortunately, he has neither taken any such plea in the statement recorded under Section 313 of the Code of Criminal Procedure nor filed any defence or produced any documents.
20. The accused opted to remain silent while recording statement under Section 313 of the Code of Criminal Procedure. Except answering question Nos. 2 and 3 as YES, the remaining questions, he has deliberately remained silent with standard defence as "False" or "Not known". Being husband of the deceased, the accused has not revealed compassion or kindness towards his wife and has ran away from the spot, after the incident. 20
21. The material on record clearly depicts that the jurisdictional police, after investigation, filed absconding charge sheet and could not trace the accused inspite of issuance of NBW, proclamation, attachment warrant, etc. and proceedings were conducted under Section 299 of the Code of Criminal Procedure and ultimately, apprehended the accused only on 07.03.2014, after nearly 13 years. That is one of the circumstance with regard to the conduct of the accused.
22. Though the learned counsel for the appellant/ accused contended that there was inconsistency in the evidence of eye witnesses-P.Ws.1, 2 and 5 who are highly interested witnesses, the fact remains that the eye witnesses who are none other than the mother, brother and relative of the deceased who have seen the incident on the fateful day, they are natural witnesses who have stated on oath in categorical terms that the 21 accused strangulated the deceased at 4.00 am with nylon rope- M.O.1. Their consistent statement has not been disproved in the cross-examination.
23. The scope and object of Section 313 of the Code of Criminal Procedure empowers the Court to examine the accused after the prosecution evidence has been closed. The object of empowering the Court to examine the accused is to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain them. The statement recorded under Section 313 of the Code of Criminal Procedure is not an evidence as contemplated under Section 3 of the Indian Evidence Act, 1872.
24. The provisions of Section 313 of the Code of Criminal Procedure embodies fundamental principle of "audi alteram partem"(that no one should be condemned unheard). Section 313 of the Code of Criminal Procedure is mandatory and cast a duty on the Court to 22 afford an opportunity to the accused to explain the incriminating material against him and it is not a mere formality. The questions put and answers given have a great use. The accused must be given an opportunity to explain each and every circumstance appearing against him. The word 'personal' would show that this is in addition to what his counsel would have done by way of cross-examination.
25. The examination of an accused is to have a fair nexus with the defence that may chose to bring any failure on the part of the accused in his examination under Section 313 of the Code of Criminal Procedure that may have the effect of curtailing his right in the event he takes a specific defence, the answer given by him, in his statement, if incorrect or incomplete, may also jeopardize him. As such, answers may have the effect of strengthening prosecution case against him. 23
26. Admittedly, in the present case, except answering questions 2 and 3 as 'YES' about the marriage and that they lived together, the accused has not chosen to take any defence. In such an event, adverse inference against him could be drawn. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Phula Singh vs. State of Himachal Pradesh reported in AIR 2014 SC 1256, paragraphs 6 & 8 held as under:
6. The admitted facts remain that the appellant had no relationship or acquaintance with the complainant whatsoever and the appellant failed to furnish any explanation about his visit and staying in the house of the complainant. The appellant has not denied visit to the house of the complainant. More so, he did not furnish any explanation in respect of the recovery of Rs 1000 from the pocket of his pants nor could he furnish any information as to how his fingers turned pink on being washed with sodium carbonate solution as the currency notes already found in the pocket of his pants had been treated with phenolphthalein. On being washed, part of his pants also turned pink.24
Even in the statement under Section 313 CrPC, the appellant answered every question saying "I do not know" or "it is incorrect" but when he was asked as to whether he wanted to say anything else, he answered as under:
"I am innocent and Prabhat Chand had lodged a false case against him, because he had encroached the land of Shri Vakil Chand as per his demarcation."
8. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been 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 when his statement under Section 313 CrPC 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. (Vide Ramnaresh v. State of Chhattisgarh [(2012) 4 SCC 257 : (2012) 2 SCC (Cri) 382] , Munish Mubar 25 v. State of Haryana [(2012) 10 SCC 464 : (2013) 1 SCC (Cri) 52 : AIR 2013 SC 912] and Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722 :
(2013) 4 SCC (Cri) 812 : AIR 2013 SC 3150] .)
27. It is also not in dispute that recording of statement under Section 313 of the Code of Criminal Procedure by the Sessions Court with proper methodology to be adopted is to invite attention of the accused to the incriminating circumstances and evidence and invite his explanation. In other words, it provides an opportunity to an accused to tell to the Court as to what is truth and what is his defence.
Recording of the evidence of the accused under Section 313 of the Code of Criminal Procedure is mandatory in nature. Opportunity of examination under Section 313 of the Code of Criminal Procedure to the accused is a part of fair trial. The examination shall be after prosecution evidence is closed in order to provide an opportunity to the accused. The questioning the 26 accused must be fair and framed in a form which an ignorant and illiterate person may be able to understand and give rational answers. It is required that each material circumstance should be put simply and separately in a way that an illiterate person can appreciate and understand. It is imperative that each and every question must be put to the accused separately and their answers must also be recorded separately. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of other evidence against him led by the prosecution. But such statement under Section 313 of the Code of Criminal Procedure should not be considered in isolation but in conjunction with prosecution evidence. The conviction cannot be based merely on the statement of accused under Section 313 of the Code of Criminal Procedure, as it cannot be regarded as a substantive piece of evidence. 27
28. It is also well settled that an adverse inference can be taken against accused only and if the incriminating materials stood fully established and the accused is not able to furnish any explanation for the same. It is not sufficient compliance to string together long series of facts and ask the accused what he has to say about them. He must be questioned simply and separately about each material circumstance which is intended to be used against him. The provisions of Section 313 of the Code of Criminal Procedure is intended mainly for the benefit of the accused and also to help the Court in finding the truth. The principle on which it is based is that before the damaging points in the prosecution evidence are used against the accused for determining his guilt, it is essential that his pointed attention should be drawn to them one by one avoiding the form of cross- examination in order to afford him an opportunity of giving an explanation consistent with his innocence. The correct method of performing the duty in Section 28 313 of the Code of Criminal Procedure is not to ask generally if the accused has anything to say about the charges or the evidence against him, but to place before him separately one by one in short sentences all the vital and salient parts of the evidence appearing against him in the simplest possible language so that he can realize what things he has got to explain, and to ask him after putting to the accused each material fact against him whether he wanted to say anything about the matter. The real importance of Section 313 is that there is a duty cast upon the Court to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet and thereby an opportunity is given to him to explain any such point. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Parichhat and others vs. State of Madhya Pradesh reported in AIR 1972 SC 535 wherein, at paragraph 18, it is held as under: 29
"The real importance of Section 342 of the Criminal Procedure Code is that there is a duty cast upon the Courts to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet, and thereby an opportunity is given to the accused to explain any such point. The High Court being under the impression that the tilli was in green and unripe condition held that if Parichhat had sown and grown the crop he would have preserved and protected the crop and not cut the same. This finding is totally inconsistent with the other finding of the High Court that Damru was in possession of the land. If Damru had been in possession Parichhat would not have sown tilli crop. If, on the other hand, Parichhat had been in possession and had sown and grown the crop it should have been clearly put to Parichhat that tilli crop was green and unripe. If Parichhat had sown and grown the crop, the entire prosecution case fails."30
29. The statement under the provisions of Section 313 is quite different from a confessional statement under Section 164 in which the Court has to be satisfied about voluntariness by questioning. But it has also been held that Section 313 is not exhaustive; and where in the middle of a trial the accused pleads guilty, the Court can question the accused to satisfy itself that the confession is voluntary. It has been the experience of this Court that, in almost all the cases, while recording statement of the accused under Section 313 of the Code of Criminal Procedure, most of the accused persons have given answers either as 'false' or 'not known' and in some cases, even where there is incriminating evidence against them, instead of explaining the same, they have opted not to explain, except giving the answers as 'false' or 'not known'. When there is incriminating evidence against the accused and the question put to them when not explained, certainly adverse inference has to be drawn which would result in 31 omission, resulting in conviction of the accused and it is very difficult for the Appellate Court to reverse such a finding, in the absence of any explanation on the incriminating evidence against the accused.
30. The provisions of Section 313 of the Code of Criminal Procedure does not require that each and every piece of evidence should be put to the accused. The circumstances arising out of the evidence has to be put to the accused by a question which draws his attention to the fact that the evidence on record shows that the death has caused as a result of the injuries caused on the deceased by the accused himself/herself, in the circumstances, no prejudice would be caused to the accused, even though the medical evidence was not specifically brought to the notice under Section 313. It is well settled that, when the fact is within the exclusive knowledge of the accused, his failure to offer any satisfactory explanation by itself would enable an 32 inference being raised against him and it leads to adverse inference against the accused. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in (2020)1 SCC (Cri) 381 wherein, at paragraph 11, it is held as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
31. It is well settled that recording of statement of accused under Section 313 of the Code of Criminal Procedure should be only after completion of evidence of prosecution witnesses. If fresh evidence is called after the examination of the accused or prosecution witnesses are further cross-examined, the accused 33 should be examined again. It has however been held in some cases that if no fresh circumstances are brought in evidence after recall or re-cross-examination, the accused may not be examined again. It is also settled law that, when more prosecution evidence is taken after the accused is examined, omission to examine him again vitiates the trial. The defect is curable unless prejudice has been caused. It has been held by the Hon'ble Supreme Court in the case of Bihari Singh Madho Singh vs. State of Bihar reported in AIR 1954 SC 692, that if additional evidence is recorded, the accused should be questioned afresh about it.
32. It is well settled that the provisions of Section 313 of the Code of Criminal Procedure casts a duty on the Court to place before the accused the facts and circumstances appearing against him in the evidence in order to furnish him an opportunity to explain them and thus help him in showing his innocence. That is 34 the main objection of the Section. It is generally misunderstood and sometimes misapplied and also abused. The duty is not obeyed by the mere asking of stereotyped question like:
(a) What have you to say?
(b) Have you anything to say?
(c) What is your answer?
(d) What is your defence?
(e) Is this the statement made by you before the committing Magistrate?
(f) Do you wish anything to add to it?
(g) Why have the prosecution witnesses given evidence against you?
33. It is also settled that, nor is the Court relieved of its duty of questioning by accepting a written statement which is prepared and revised by the accused's friends and legal advisers. If the incriminating process of evidence available in the prosecution evidence are not put to the accused affording him an opportunity to offer 35 explanation, such evidence cannot be relied on for the purpose of recording conviction against the accused. It is very improper for the Court to allow questions to be supplied by the prosecution. The accused may reasonably apprehend that he would not have a fair trial. An accused cannot be confronted with any circumstance which is not in evidence. It is not proper compliance to read out a long string of questions and answers made in the committal Court and ask whether the statement is correct. A question of that kind is misleading....In the next place, 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 circumstances which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must be fair and must be couched in a form 36 which an ignorant and illiterate person will be able to appreciate and understand.
34. The examination under Section 313 of the Code of Criminal Procedure is not an idle formality, but has to be carried out in the interest of justice and fair play to the accused. It is irregular to roll up several distinct matters of evidence in a single question. The questions should be split up so as to deal with each distinct feature or material piece of evidence separately. Each and every circumstance appearing in evidence against the accused must be separately and distinctly put to the accused. The long questions and omnibus or composite or complicated questions should not be put. Referring to 10 or 20 statements by a witness and asking the accused whether the evidence is true, is also not proper. It may be that when the accused answered in the affirmative, he was referring only to the last portion of the question. In such a case, it would be improper to 37 interpret the answer as meaning that the entire evidence given by the witness is true.
35. It is time and again held by the Hon'ble Supreme Court that the importance of the rule of putting to the accused each material fact intended to be used against him "is so often ignored". When the accused is not given a chance to explain such a point, the fact cannot be used against him. The said view was pronounced by the Privy Council that when a point appears in the evidence against the accused which the Court considers vital, it is its duty to call the accused's attention to the point and ask for an explanation. Omission so to ask is a departure from the statutory rule in Section 313 of the Code of Criminal Procedure and basing a conviction on the accused's failure to explain what he was never asked to explain is unjustified, as held by the Privy Council in the case of Dwarakanath Varma and Gaya Prasad vs. The King of Emperor reported in AIR 1933 PC 124, which reads as under:
38
"Neither of the two suggestions seems with respect to have any bearing on the question whether the doctor had abandoned an honest opinion held on the 4th August and was professing dishonestly still to hold it on the 5th December, and they appear to have no substance in them. There is no indication that the theory of hypertension is new; it is still a theory that the injury to the heart was due to the assault. The stress laid upon the failure to explain the absence of blood is subject to two criticisms. In the first place the learned Chief Justice assumes that the doctor found no blood in the peritoneal cavity which their Lordships venture to think is by no means established by the post-mortem report. In the second place it appears to their Lordships that in this respect the accused doctor has serious ground to complain of his treatment. S. 342 of the Criminal Procedure Code provides that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court shall question him generally on the case after the witnesses for the prosecution have been examined. In pursuance of this section one of the puisne judges put questions to the doctor. The only questions put on the contents of the post-mortem report were as to 39 the congestion of some of the organs, the cause of antiperistalsis, and the omission from the report of the condition of faecal matter, and clots of blood at the orifices of the ruptures deposed to at the Sessions. The other question is a general question whether there was anything else he desired to say about the charges or the evidence. The learned Chief Justice told the jury that the absence of blood in the body cavity was a vital point. If so it is plain that under S. 342 of the Code it was the duty of the examining Judge to call the accused's attention to this point and ask for an explanation. Probably the departure from the statutory rule was due to the fact that one judge examined the accused while another summed up. But it deprives of any force the suggestion that the doctor's omission to explain what he was never asked to explain supplies evidence on which the jury should infer that six months before he had consciously abandoned a theory which four months before that he honestly held."
36. The Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 313, the omission has not been shown to 40 have caused prejudice to the accused. Great care is expected of Sessions Judges to collect every incriminating circumstances in grave cases and put to the accused even though at the end of a long trial, Judge may be, little fagged out, as held by the Hon'ble Supreme Court in the case of Shivaji Sahebrao Bobade vs. State of Maharashtra reported in AIR 1973 SC 2622 at paragraph 16 as under:
"16......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 imperil 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 41 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, CrPC, the omission has not been shown to have caused prejudice to the accused. ........."
37. The recording of joint statement of accused under Section 313 of the Code of Criminal Procedure is not permissible. Recording of statement shall be in full and not in a monolithic answers. There is no need for supplying questionnaire to the accused in advance; non-supply of questionnaire in advance will not amount to violation of Articles 14, 19(1)(a) and 21 of the 42 Constitution of India. Failure to comply with the provisions of this section is an irregularity; and unless injustice is shown to have resulted there from a mere irregularity is by itself not sufficient to justify an order or re-trial. The Appellate Court must always consider whether by reason of failure to comply with a procedural provision, which does not affect the jurisdiction of the court, the accused have been materially prejudiced, as held by the Hon'ble Supreme Court, in the case of State (Delhi Administration) vs. Dharmapal reported in AIR 2001 SC 2924, at paragraphs 11, 13, 14 and 15 which reads as under:
11. Dealing with the first question first. This Court has, in the case of Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] held as follows: (SCC p. 806, para 16) "It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to 43 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 imperil 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 44 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 Cr.P.C, the omission has not been shown to have caused prejudice to the accused."
(emphasis supplied)
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 45 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 46 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.
15. We further find that in all these cases, the copy of the certificate of the Director, Central Food Laboratory had been supplied to the accused. They were thus aware of the contents of the certificate. It has to be seen that under the Prevention of Food Adulteration Act the prosecution is based upon the contents of either the report of the Public Analyst or the certificate of the Director of Central Food Laboratory. During their examination, under Section 313 CrPC questions pertaining to the certificate were put to the accused. The explanation of the accused, in respect of the certificate, had been called for. In our view in such cases it is enough if the attention of the accused is brought to the report or the certificate, as the case may be. It is not necessary that the contents of the report be also put to the accused.
47
38. Where question about motive is not put to the accused, but case is established otherwise by evidence, omission to put question would not be a case of prejudice to the accused and conviction would not be interfered with. Silence and failure of the accused to explain the circumstances appearing in evidence against him is a strong circumstance which can be used against him. No presumption arises, ipso facto, from the silence of an accused person. The fact of silence may, with all the other circumstances of the case, be taken into account in a proper case, but even then, it must be clearly borne in mind that an accused person always has a right to remain silent if he wishes; and, the silence of the accused must never be allowed, to any degree, to become a substitute for proof by the prosecution of its case. It is for the prosecution to prove its case in the first instance and not to rely on the silence of the accused. It is also well settled that, where the accused gives evasive answers, in the presence of 48 medical record, an adverse inference can be drawn against the accused. In case of circumstantial evidence, where an accused offers false answer in his examination under Section 313 of the Code of Criminal Procedure against the established facts, that can be counted as providing a missing link for completing the chain.
39. In the present case, it is the specific case of the prosecution based on the evidence of P.Ws.1, 2, 5 and 7 and P.W.9 that accused involved in the homicidal death of the deceased. The doctor-P.W.7 has stated on oath that he has conducted the post mortem of the deceased on 15.02.2001 and found the following external injuries:
(1) Multiple ligature marks present over the anterior aspect of neck, below the chin, each measuring ½" x ¼" dark brown in colour. (2) A ligature mark present over the (R) side of neck, by the side of ligature No.1 measuring ½" x ¼" dark brown in colour.
(3) A well defined ligature mark present on the neck, below the thyroid cartilage, completely 49 (not clear) the neck transversely measuring 12" x 1" dark brown in colour on defection of ligature mark, petechial haemorrhage present.
The above said injuries are ante mortem in nature and the time of death is between 12-24 hours.
The ligature material used for strangulation not produced at the time of post mortem examination.
The doctor, ultimately, opined that the death was due to asphyxia as a result of strangulation.
In response to the specific question posed by the Investigating Officer with regard to use of M.O.1, he has also stated that in view of strangulation with M.O.1, Kamalamma might have died.
40. The material on record clearly depicts that the prosecution based on oral and documentary evidence, proved beyond reasonable doubt that the accused has committed the murder of his wife by strangulation of neck with nylon rope-M.O.1 and thereby committed an offence under Section 302 of the Indian Penal Code. 50
41. Though the learned counsel for the appellant - accused contended that since the accused is in judicial custody for nearly 07 years, a lenient view may be taken by reappraisal of entire material on record, the defence has not made out any case, to reduce the sentence as the evidence of P.Ws.1, 2, 5 corroborated with the averments made in Ex.P.1 complaint and their evidence is corroborated with the evidence of the doctor-P.W.7 and the Investigating Officer-P.W.9 recovered the M.Os. which clearly establish that the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and absolutely no material is pointed out to reduce the sentence.
VII. CONCLUSION
42. For the reasons stated above, the point raised for consideration has to be answered in the negative holding that the appellant/accused has not made out any ground to interfere with the impugned judgment of 51 conviction and order of sentence, sentencing the accused/appellant to undergo imprisonment for life and to pay fine of Rs.3,000/- for the offence punishable under Section 302 of the Indian Penal Code, in default of payment of fine, to undergo further sentence of simple imprisonment for a period of three months, in exercise of appellate powers of this Court under Section 374(2) of the Code of Criminal Procedure.
VIII. RESULT
43. Accordingly, the Criminal Appeal is dismissed as devoid of merit.
The Registrar (Judicial) is directed to send a copy of this Judgment to all the Prl. District and Sessions Judges in the State, with a request to circulate the same in their respective units.
Sd/-
JUDGE Sd/-
JUDGE kcm