Shyam Sundar Modi & Ors vs The State Of Bihar on 9 April, 2014

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Patna High Court

Shyam Sundar Modi & Ors vs The State Of Bihar on 9 April, 2014

1. Appellants, Shyam Sundar Modi, Krishna Kumar Modi, Baldeo Rajak, Damodar Sah have been found guilty for an offence punishable under Sections 148, 380, 149, 436/149, 153(B) of the IPC vide judgment dated 10.06.2013 and sentenced each of them to undergo R.I. for two years, R.I. for three years, R.I. for seven years, R.I. for three years respectively with a further direction to run the sentences concurrently vide order dated 14.06.2013 by the 2 Second Additional Sessions Judge, Bhagalpur in Sessions Trial No.180 of 1999 (R) have preferred instant appeal.

2. On 08.11.1989 Chowkidar, Sibu Tuti (not examined) filed written report ( Ext.-1) disclosing therein that on 07.11.1989 at about 04:00 P.M. the riot ers raided houses of Muslims lying at village Bela and lit fire in their houses dismantled the houses, looted away belongings. Same set of rioters also raided Musalman Tola of village - Tara Kunda where they indulged in arson , damaged the articles, looted away belongings. It has also been disclosed that Muslims of both the village have already left the village two days prior to the occurrence along with their family members as well as belongings.

3. On the basis thereof, Belhar P.S. Case No.160 of 1989 was registered and investigation commenced. Charge sheet was submitted against so many persons including the appellants whereupon the trial of others is found separated while these four appellants proceeded with and convicted and sentenced in a manner challenged under instant a ppeal.

4. It is evident from the format of charge that the appellants were charged under the aforesaid heading for commission of an offence both at village -Bela as well as 3 Tara Kunda. However, during course of trial, it is evident that all the witnesses, namely, PW-1 Md. Halim Ansari, PW-2 Abdul Kayum Ansari, PW-3 Moyuddin, PW-6 Kamruddin who deposed on factual aspect belong to village-Tara Kunda and they have alleged the occurrence having been committed at the end of appellants including others at village-Tarakunda while PW-4 Sanjay Kumar, PW-5 Mahendra Ram happens to be formal in nature. However, PW-7 Sachidanand Singh happens to be the seizure list witness whose evidence has got no bearing on the prospect of prosecution case.

5. The defence had also examined six DWs out of whom DW-1, Mahendra Sah, DW-2 Manohar Ansari, DW-3 is Md. Anwar Ansari, DW-4 is Gauri Shankar Singh, DW-5 is Janak Yadav and DW-6 is Israil Ansari to controvert the prosecution witnesses regarding identification of these appellants on account of their absence at the place of occurrence, village on the alleged date of occurrence.

6. The most crucial aspect which is bound to jolt upon the prosecution case is coming out from the statement recorded under Section 313 of the Cr.P.C. All the appellants were confronted with the occurrence having been 4 committed at village-Bela regarding which none of the prosecution witnesses as referred above , have deposed. All the witnesses have stated with regard to an occurrence having committed at village-Tara Kunda regarding which the appellants were not at all confronted.

7. The propriety of statement of an accused as mandated under Section 313 of the Cr.P.C. is not a mechanical process as well as mere formality rather it happens to be a judicial process whereunder all kinds of incriminating material produced during course of trial by the prosecution against the accused have to be confronted so that accused have an opportunity to explain the same. Such explanation although happens to be not on oath however, its importance as well as relevance coupled with consideration has been explained under sub -section 4 of Section 313 of the Cr.P.C. Therefore, times without number the process of recording of 313 of the Cr.P.C. have been explained by the Hon'ble Apex Court. Furthermore, lapses on the part of trial court in the aforesaid background has been viewed seriously even going to extent of discrediting the finding.

8. In Sujit Biaswas v. State of Assam reported in 5 (2013) 12 SCC 406 it has been observed:

"20. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice, i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross- examined with reference to such statement.

21. In Hate Singh Bhagat Singh v. State of Madhya Pradesh, AIR 1953 SC 468, this Court held, that any circumstance in respect of which an accused has not been examined under Section 342 of the Code of Criminal Procedure, 1898 (corresponding to Section 313 Cr.P.C.), cannot be used against him. The said judgment has subsequently been followed in catena of 6 judgments of this court uniformly, taking the view that unless a circumstance against an accused is put to him in his examination, the same cannot be used against him. (See also: Shamu Balu Chaugule v. State of Maharashtra, AIR 1976 SC 557; Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566; and Sharad Birdhichand Sarda (1984) 4 SCC 116).

25. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself.

26. The present case is required to be examined in light of the aforesaid settled legal propositions. The instant is one of circumstantial evidence, and only two circumstances have appeared against the appellant, namely, I. That he had been able to point out the place where Sima Khatoon was lying, after his demand for Rs.20/- had been accepted; and II. That subsequently, he had left the said place and boarded a bus immediately. The aforesaid circumstances in isolation, point out conclusively, that the appellant has in fact committed the said offence. Furthermore, the most material piece of evidence which could have been used against the appellant was that the blood stains found on his underwear matched the blood group of Sima Khatoon.

However, the said circumstance was not put to the appellant while he was being examined under Section 313 Cr.P.C. by the trial court, and in view thereof, the same cannot be taken into consideration. Hence, even by a stretch of the imagination, it cannot be held that the aforementioned circumstances clearly point towards the guilt of the appellant, and in light of such a fact situation, the burden lies not only on the accused to prove his innocence, but also upon the prosecution, to prove its case beyond all reasonable doubt. In a case of circumstantial evidence, the aforementioned burden of proof on the prosecution is much greater."

9. For better appreciation of the principle as referred above, it looks desirable to incorporate the statement i n verbatim:

1. Shyam Sundar Modi iz'u& D;k vkius vfHk;kstu lkf{k;ksa dk lk{; lquk\ mÙkj& th gkW iz'u& vkids fo:) lk{; gS fd fnukad 7-11-89 dks pkj cts 'kke esa xzke csyk] Fkkuk csygj ftyk ckadk eas vki lc vfHk;qDrksa ds lkFk feydj uktk;t etek cukdj gjos gfFk;kj ls yS'k gksdj csyk xkao esa ?kqldj eqlyekuksa ds ?kj esa rksM&+ QksM+ fd;s ?kj esa vkx yxk fn;s rFkk ?kj dk lkeku mBkdj ysrs pys x, vkius nksuksa leqnk;ksa ds chp lkEiznkf;d lksgkn dks fcxkM+us dk dk;Z fd;s\ mÙkj& th ugha iz'u& lQkbZ esa vkidks D;k dguk gS\ mÙkj& funksZ"k gwWA

2. Krishna Kumar Modi 8 iz'u& D;k vkius vfHk;kstu lkf{k;ksa dk lk{; lquk\ mÙkj& th gkW iz'u& vkids fo:) lk{; gS fd fnukad 7-11-89 dks pkj cts 'kke esa xzke csyk] Fkkuk csygj ftyk ckadk eas vki lc vfHk;qDrksa ds lkFk feydj uktk;t etek cukdj gjos gfFk;kj ls yS'k gksdj csyk xkao esa ?kqldj eqlyekuksa ds ?kj esa rksM&+ QksM+ fd;s ?kj esa vkx yxk fn;s rFkk ?kj dk lkeku mBkdj ysrs pys x, vkius nksuksa leqnk;ksa ds chp lkEiznkf;d lksgkn dks fcxkM+us dk dk;Z fd;s\ mÙkj& th ugha iz'u& lQkbZ esa vkidks D;k dguk gS\ mÙkj& funksZ"k gwWA

3. Baldeo Rajak iz'u& D;k vkius vfHk;kstu lkf{k;ksa dk lk{; lquk\ mÙkj& th gkW iz'u& vkids fo:) lk{; gS fd fnukad 7-11-89 dks pkj cts 'kke esa xzke csyk] Fkkuk csygj ftyk ckadk eas vki lc vfHk;qDrksa ds lkFk feydj uktk;t etek cukdj gjos gfFk;kj ls yS'k gksdj csyk xkao esa ?kqldj eqlyekuksa ds ?kj esa rksM&+ QksM+ fd;s ?kj esa vkx yxk fn;s rFkk ?kj dk lkeku mBkdj ysrs pys x, vkius nksuksa leqnk;ksa ds chp lkEiznkf;d lksgkn dks fcxkM+us dk dk;Z fd;s\ mÙkj& th ugha iz'u& lQkbZ esa vkidks D;k dguk gS\ mÙkj& funksZ"k gwWA

4. Damodar Sah iz'u& D;k vkius vfHk;kstu lkf{k;ksa dk lk{; lquk\ mÙkj& th gkW iz'u& vkids fo:) lk{; gS fd fnukad 7-11-89 dks pkj cts 'kke esa xzke csyk] Fkkuk csygj ftyk ckadk eas 9 vki lc vfHk;qDrksa ds lkFk feydj uktk;t etek cukdj gjos gfFk;kj ls yS'k gksdj csyk xkao esa ?kqldj eqlyekuksa ds ?kj esa rksM&+ QksM+ fd;s ?kj esa vkx yxk fn;s rFkk ?kj dk lkeku mBkdj ysrs pys x, vkius nksuksa leqnk;ksa ds chp lkEiznkf;d lksgkn dks fcxkM+us dk dk;Z fd;s\ mÙkj& th ugha iz'u& lQkbZ esa vkidks D;k dguk gS\ mÙkj& funksZ"k gwWA

10. Consequent thereupon, the judgment impugned suffers from inherent defect and is accordingly set aside. Appeal is allowed. Appellants are under custody, hence are directed to be released forthwith, if not wanted in any other case.

(Aditya Kumar Trivedi, J.) PATNA HIGH COURT DATED, THE 9th day of April, 2014 PRAKASH NARAYAN __ |__| U |__| T

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