Karnataka High Court
Vaijinath vs State Of Karnataka on 13 January, 1993
Equivalent citations: 1993(1)ALT(CRI)417, ILR1993KAR543, 1993(1)KARLJ234
JUDGMENT Hiremath, J.
1. The appellant and two others stood charged before the Court of Sessions at Bidar under Sections 302, 307, 324 and Section 323 read with Section 34 I.P.C. The charge was that on 26.9.1989 at about 8 a.m. at village Warwatti in Bidar district all the three accused inflicted fatal injuries on Goraknath with axe and sticks with the common intention of causing his death and he succumbed to the injuries on the same day afternoon in the District Hospital, Bidar. In the same incident, with the common intention of committing the murder of another person Ram, son of Goraknath, they did assault him with axe and sticks and attempted to commit his murder. In furtherance of the common intention they caused hurt with these deadly weapons to Jana Bai, wife of Goraknath, they also caused hurt to Laxman, son of Goraknath and Manik, son of Sangappa and committed an offence under Section 324 read with Section 34 I.P.C. Similarly, C.W.14 Kishen was assaulted by them with sticks and hence charged under Section 323 read with Section 34 I.P.C. Thus, in this incident P.Ws. 1 to 5 were injured in addition to Goraknath suffering fatal injuries to which he succumbed later. On close of evidence, the trial Court heard the accused under Section 235(2) Cr.P.C. found that they were not entitled to acquittal and as the accused had no defence evidence to lead, proceeded to hear arguments. Earlier to it, statement under Section 313 Cr.P.C. was recorded. It found A-1 guilty under Section 302 I.P.C., convicted him for the said offence and sentenced to imprisonment for life. It has further convicted him under Section 324 I.P.C. for having caused hurt to P.W.2 with axe. A-2 and A-3 were also found guilty under Section 323 I.P.C. for having caused hurt to P.Ws 1, 3, 4 and 5 and sentenced to two years R.l. each. Giving set off under Section 428 Cr.P.C., A-2 and A-3 were ordered to be released as they were deemed to have suffered the sentence imposed by the trial Court in view of their detention during trial for more than two years. In this Appeal the accused No.1 is the appellant. The other two accused persons have not chosen to prefer any Appeal.
2. Our attention was drawn by the appellant's Counsel when we took up the case for hearing, to the illegality committed by the learned Sessions Judge in recording a joint statement of all the accused persons under Section 313 Cr.P.C. on close of evidence. Though some of the circumstances in evidence were against one or the other accused individually and such circumstance was put to such accused in the joint statement the fact that the accused were not individually, distinctly and separately questioned on the circumstances appearing against them in evidence is borne out on record. Whether such a course was open to be adopted by the learned Judge or whether the trial itself was vitiated on account of infringement of the provisions of Section 313 Cr.P.C. is the initial question that we have to address ourselves. Even the learned State Public Prosecutor endorses the contention of the appellant's Counsel inasmuch as even according to him it was mandatory to the learned Judge to examine each of accused individually on the circumstances appearing against him in evidence. He also brought to our notice that such a course is followed by the learned Judge even in some other cases which came up before this Court and hence infringement of the provisions of Section 313 Cr.P.C. has almost become a habit with the learned Judge. We have recalled to our mind two other cases in which such course was adopted were disposed of by us in Appeals. At this stage, it will be necessary to refer to the provisions of Section 313 Cr.P.C. to understand the importance and significance attached to the questioning of the accused to enable him to explain any circumstances appearing in the evidence of the witnesses. The provisions read 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 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."
The Parliament thought it necessary to add the word "personally" while replacing the Code of 1898 by the Code of 1973. Section 313 in the present Code corresponds to Section 342 in the old Code in which the word "personally" was not appearing. The object of Section 313 is to give opportunity to each and every one of the accused persons to offer their own explanation regarding any circumstances that may appear against them in the evidence. An accused person cannot be called upon to enter the box to give evidence unless he himself chooses to enter the box with the leave of the Court. But, Sub-section (4) of Section 313 particularly lays down that 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 other offence. Therefore, the importance of the questions to be put to the accused and his answers thereto under Section 313 Cr.P.C. cannot be minimised. A plain reading of Section 313 Cr.P.C. makes it amply clear that each and everyone of the accused persons where there are more accused than one should be separately and distinctly questioned on every one of circumstances appearing against him in evidence. If the trial Court to save labour or for reasons which cannot be made out adopts a short-cut and puts the questions to the accused persons in a joint statement, it is a clear infringement of the mandatory provisions of Section 313 Cr.P.C.
3. The Lahore High Court as far back as in the year 1926 in the case of MUSAMMAT GHASITI AND ANR. v. EMPEROR, 27 Crl L.J. 408 relying on a Decision in the case of ALLU v. EMPEROR, 75 Indian Cases 980 observed that because the Magistrate in that case did not examine each accused separately but recorded their statements collectively which was forbidden by Section 364 of Criminal Procedure Code, 1898 trial itself was vitiated. The learned Chief Justice Sir Shadi Lal concluded the Judgment with the following observations:-
"It, however, appears that the Magistrate did not examine each accused separately, but recorded their statements collectively; and this is an illegality which vitiates the proceedings. Accordingly, I set aside the conviction and sentence and remit the case to the magistrate for trial in accordance with law from the stage at which the illegality was committed."
In the case of S.HARNAM SINGH v. STATE, the Supreme Court while dealing with duty of the trial Court under Section 342 Cr.P.C. pointed out emphatically that the duty is cast under that Section on the Court to put in any inquiry or trial, questions to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Therefore each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. On the same point' a Division Bench of the Bombay High Court in the case of EMPEROR v. BALKRISHNA, ILR 55 Bombay 356 presided over by His Lordship the Chief Justice Beaumont on the facts of the case before them found the conviction illegal on the ground that the Magistrate did not comply with the provisions of Section 342 of the Criminal Procedure Code, in that he took a joint statement of all the accused and did not examine them separately. Though the High Court had another ground also before it to quash the conviction in that case, we confine ourselves only to ground that is common in the case before us and the case before the Bombay High Court. In our considered view the Legislature thought it necessary to make this provision more effective by adding the word "personally" when it re-enacted the Code and introduced Section 313 in the Code of 1973. It is needless to say that whatever may be the number of the accused persons each and every accused must be examined separately, distinctly and specifically under Section 313 Cr.P.C. to enable him to explain any circumstances appearing against him in the evidence. The provision should not be reduced to a drab formality but should be understood in its true and real spirit as any answer given by the accused has serious consequence of its own either in the same trial or in any other trial for any other offence. We are constrained to observe that the learned Sessions Judge who disposed of the present case found an easy course of recording a joint statement of the accused persons in this case in flagrant violation of the provisions of Section 313 Cr.P.C. and this itself is an illegality as infringing the provision of the statute. The learned Sessions Judge ought to have understood the scope and importance of Section 313 Cr.P.C. Instead of applying his mind to this aspect he has almost made it a habit to violate the salutary provisions of Section 313 Cr.P.C.
4. We are therefore of the considered view that the judgment of conviction rendered by the learned Judge cannot sustain in view of the illegality committed by him as pointed out by us. As the entire judgment is vitiated by this illegality, the fact that the other accused persons have not chosen to prefer any appeal is not of any consequence as the entire judgment has to be set aside. Accordingly, we allow this Appeal, set aside the judgment of conviction and sentence passed by the trial Court against appellant as well as the other two accused persons and remit the case to trial Court with a direction to register it in its original number, examine each of the accused separately as required under Section 313 Cr.P.C. in the light of the observations made above and then dispose of the case on merits. The case shall be disposed of within two months from the date of receipt of the copy of this order and records from this Court.