Jammu & Kashmir High Court - Srinagar Bench
Mohammad Jamal Bhat & Others vs Ut Of J&K on 9 August, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 01.08.2024
Pronounced on: 09.08.2024
CrlA(S) No.08/2023
MOHAMMAD JAMAL BHAT & OTHERS ...APPELLANT(S)
Through: - Mr. T. A. Lone, Advocate.
Vs.
UT OF J&K ...RESPONDENT(S)
Through: - Mr. Satinder Singh Kala, AAG.
CORAM:HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) Through the medium of present appeal, the appellants have challenged judgment dated 21.10.2013 passed by learned Principal Sessions Judge, Kupwara (hereinafter referred to as "the trial court"), whereby appellant No.1 has been convicted of offences under Section 307, 323, 324, 326, 148, 447 RPC whereas the other appellants have been convicted of offences under Section 323, 324, 148 and 447 RPC. Challenge has also been thrown to order dated 30.10.2023 passed by the learned trial court whereby appellant No.1 has been sentenced to undergo rigorous imprisonment of eight years and to pay a fine of Rs.2.00 lacs for commission of offence under Section 326 RPC, to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5000/ for commission of offence under Section 307 RPC, to undergo simple imprisonment for a period of two years and to pay a fine of Rs.3000/ in proof of offence under Section 324 RPC, to pay 2 CrlA(S) No.08/2023 a fine of Rs.3000/ in proof of offence under Section 323 RPC, to undergo simple imprisonment for a period of one year and to pay a fine of Rs.3000/ in proof of offence under Section 148 and to pay a fine of Rs.3000/ in proof of offence under Section 447 RPC. In default of payment of fine, appellant No.1 has been directed to undergo simple imprisonment for a further period of twelve months. Appellants No.2 to 5 have been sentenced to undergo simple imprisonment of two years and to pay a fine of Rs.5000/ each in proof of offence under Section 324 RPC, to pay a fine of Rs.3000/ each in proof of offence under Section 323 RPC, to pay a fine of Rs.1000/ each in proof of offence under Section 447 RPC and to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1000/ each in proof of offence under Section 148 RPC. In default of payment of fine, appellants No.2 to 5 have been directed to undergo simple imprisonment for a further period of three months.
2) As per prosecution case, on 28.04.2021, the complainant/injured, PW Ghulam Ahmad Dar, lodged a report with the police alleging that on 27.04.2021 in the evening, when he was planting trees on the boundary of his compound located adjacent to his residential house, the appellants/accused, who own the nearby land, with a criminal intentional, trespassed into his land and uprooted the trees which he had planted. When the injured/complainant objected to it, they launched an attacked upon him. In the meanwhile, two sons of complainant, PWs Bashir Ahmad and Abdul Rashid as 3 CrlA(S) No.08/2023 well as his daughter-in-law, PW Zareefa, came on spot with a view to rescue him from the clutches of the appellants/accused but they were attacked with clubs and fists by the appellants/accused. Appellant No.1, Jamal Bhat, took a glass containing acid like substance from his daughter, accused/appellant Sara and splashed it upon his son, PW Abdul Rashid, with a view to commit his murder and as a result of this, PW Abdul Rashid suffered burn injuries on his face whereas his daughter-in-law received burn injuries. It was further alleged that the appellants, who were carrying clubs in their hands, gave a beating to the injured/complainant and his family members.
3) On the basis of the aforesaid report, FIR No.85/2001 for offences under Section 307, 148, 323, 324, 326 and 447 RPC came to be registered with Police Station, Kupwara, and investigation was set into motion. After investigation of the case, it was found that aforesaid offences are found established against the appellants/accused and, accordingly, the challan was laid before the trial court.
4) The learned trial court vide its order dated 11.04.2002, framed charges for offences under Section 307, 447, 148, 323, 324 and 326 RPC against the accused/appellant who denied the same and claimed to be tried. In order to prove its case, the prosecution examined as many as 12 out of 14 listed witnesses. After completion of prosecution evidence, the statements of the appellants/accused were recorded under Section 342 of the J&K Cr. P. C. The appellants/accused entered their defence and examined two witnesses in defence. 4 CrlA(S) No.08/2023
5) The learned trial court, after hearing the parties and upon appreciation of the evidence on record, came to the conclusion that he charges for offences under Section 307, 323, 324, 326, 148 and 447 RPC stand established against appellant No.1 whereas charges for offences under Section 323, 324, 148 and 447 RPC stand established against the other appellants. Accordingly, the impugned judgment of conviction came to be passed by the trial court.
6) The appellants have challenged the impugned judgment of conviction and order of sentence passed against them on the grounds that the learned trial court while appreciating the evidence on record has committed a grave error as there are procedural lacunae in the trial of the case. It has been contended that the evidence on record has not been appreciated in its proper perspective and the charges against the appellants have not been proved beyond reasonable doubt. It has been further contended that the learned trial court has approached the case with a preconceived notion by terming the case as a horrendous crime of acid attack in the very first para of the impugned judgment. It has also been contended that there was a longstanding dispute between the appellants and the complainant party, as such, there are high chances that the appellants might have been falsely implicated and that this aspect of the matter has not been gone into by the trial court. According to the appellants/accused, the fact that whole family has been implicated by the complainant shows that the launching of prosecution against the appellants is an act of vengeance. It has been 5 CrlA(S) No.08/2023 further contended that the evidence on record is contradictory on vital aspects of the case, as such, the same does not deserve to be relied upon.
7) I have heard learned counsel for the parties and perused grounds of appeal, the impugned judgment and the record of the trial court.
8) While going through the record of the trial court, it has come to the fore that the learned trial court has recorded statements of the appellants/accused under Section 342 of J&K Cr. P. C in a mechanical and cursory manner without putting the incriminating circumstances appearing in the prosecution evidence to the accused/appellants in the manner it should have been done. A look at the statements of the appellants/accused recorded under Section 342 of J&K Cr. P. C reveals that only general allegations contained in the prosecution evidence have been put to them for their explanation without putting each material to the appellants/accused specifically, distinctively and separately.
9) In a criminal trial recording of statement of the accused under Section 342 J&K Cr. P. C, which in para materia with Section 313 of the Central Cr. P. C, is not an empty formality. A duty is cast upon the court to put questions to the accused for the purpose of enabling him to explain the incriminating circumstances appearing in the evidence against him. The importance of framing a proper questionnaire by the court while recording the statement of any accused under Section 342 6 CrlA(S) No.08/2023 of the Cr. P. C, has been emphasized by the Supreme Court in its various judgments. Some of these judgments are being noticed hereinafter.
10) The Supreme Court in the case of S. Harnam Singh v. State (Delhi Admn.) (1976) 2 SCC 819 in paragraph 22 has held as under:
"22. Section 342 of the Code of Criminal Procedure, 1973, 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."
11) The Supreme Court in the case of S. Harnam Singh v. State (Delhi Admn.) (1976) 2 SCC 819 in paragraph 22 has held as under:
"22. Section 342 of the Code of Criminal Procedure, 1973, 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."
12) Again, in the case of Asraf Ali v State of Assam, (2008) 16 SCC 328, the Supreme Court observed as under:
"21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the 7 CrlA(S) No.08/2023 purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (AIR 1976 SC 2140), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non- indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise."
13) The Supreme Court in a recent decision in the case of Raj Kumar @ Suman v State (NCT of Delhi), 2023 LiveLaw (SC) 434, after noticing the legal position, summarized the same as under:
"16. The law consistently laid down by this Court can be summarized as under:
(i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction;
(ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence;
(iii) The Court must ordinarily eschew material circumstances not put to the accused from 8 CrlA(S) No.08/2023 consideration while dealing with the case of the particular accused;
(iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused;
(v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect.
However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident;
(vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and
(vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC, 1973.
(viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.
14) From the forgoing analysis of law on the subject, it is clear that each material circumstance appearing in the evidence against an accused has to be put to him specifically, distinctly and separately and if it is not done, the same amounts to serious irregularity vitiating the trial, provided it is shown that the accused was prejudiced. It is also clear that non-examination of an accused under Section 342 J&K Cr. P. C. (313 Central Cr. P. C.) is an irregularity which may, in normal circumstances, be cured.
15) Adverting to the facts of the instant case, as already noticed, the manner in which the statements of the appellants/accused under section 342 J&K Cr. P. C. have been recorded by the trial court reflects mechanical and cursory functioning of the said court. It seems that 9 CrlA(S) No.08/2023 either the questions have been formulated by some Court staff or the then learned Presiding Officer was oblivious of the importance of recording the statements of the accused under Section 342 of the J&K Cr. P. C. Simply formulating a question that 'it has come in the prosecution evidence that you have beaten up PW Ghulam Ahmad or you have splashed acid upon the face of PW Abdul Rashid, is not what is mandated under law. As already stated, each incriminating circumstance appearing in the prosecution evidence has to be put to an accused specifically, distinctively and separately. General questioning of an accused as regards the prosecution case does not fulfil the requirements of law.
16) In the instant case, the learned trial court while recording the conviction of the appellants has relied upon the statement of doctor, particularly his statement that injuries appearing on the person of PW Abdul Rashid and PW Zareefa are possible by a corrosive substance but the said incriminating evidence has not been put to the appellants/accused for their explanation while questioning them under Section 342 of the J&K Cr. P. C. The learned trial court, while recording conviction of the appellants/accused, has also relied upon the evidence relating to seizure of glass containing acid, the burnt shirt of PW Abdul Rashid but these material pieces of evidence have not been put to the appellant/accused to seek their explanation. It was not open to the learned trial court to rely upon these material circumstances appearing in the prosecution evidence without putting 10 CrlA(S) No.08/2023 the same to the accused/appellants. This has caused grave prejudice to the appellants/accused and their conviction on this ground alone, becomes unsustainable in law.
17) As already stated that mere defect in recording statement of an accused under Section 342 of the Cr. P. C or non-examination of an accused under Section 342 of the Cr. P. C is only an irregularity which is curable in nature. The question that falls for determination is as to what is the course open to this Court at the appellate stage. This question has been answering by the Supreme Court in the case titled Nar Singh vs. State of Haryana, (2015) 1 SCC 496. In para (30) of the judgment, the court while answering this question observed as under: "30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:-
(i) Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;
(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
(iii) If the appellate court is of the opinion that non- compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the 11 CrlA(S) No.08/2023 accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;
(iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused."
18) From the above, it is clear that one of the courses available to the Court is to remand the case to the trial court for recording the statement of the accused under Section 342 of the Cr. P. C afresh and to hold re-trial of the case from the said stage including recording of defence witnesses, if any. As has been already stated, the failure of the trial court to put material circumstances appearing in the prosecution evidence to the appellants/accused has caused grave prejudice to them and without seeking their explanation in respect of these circumstances, it was not open to the trial court to rely upon such circumstances while recording conviction of the appellants. Therefore, it would be appropriate in the facts and circumstances of this case to remand the case to the trial court for re-recording statements of the appellants/accused under Section 342 of the Cr. P. C.
19) Thus, without expressing any opinion on the merits of the contentions raised in the present appeal, the conviction of the appellants/accused is set aside for the reason that their statements under Section 342 of the J&K Cr. P. C have not been properly and effectively recorded by the trial court. The case is remanded to the trial 12 CrlA(S) No.08/2023 court with a direction to record the statements of the appellants/accused under Section 342 of the J&K Cr. P. C afresh keeping in view the discussion made hereinbefore. The accused/appellants shall be given an opportunity to produce further defence evidence, if they so desire, whereafter the learned trial court, after hearing the parties, shall pass a fresh judgment in accordance with law.
20) Appellants No.2 and 5, who are already on bail, shall continue to remain on bail till the case is finally decided by the trial court. Appellant No.1, who is in custody, is directed to be released on bail subject to the following conditions:
I. That he shall furnish personal bond in the
amount of Rs.50,000/ with one surety of
the like amount to the satisfaction of the
learned trial court;
II. That he shall appear before the trial court
on each and every date of hearing;
III. That he shall not leave the territorial limits
of Union Territory of J&K without prior
permission of the learned trial court;
21) A copy of this judgment be sent to the learned trial court for
information and compliance.
(Sanjay Dhar)
Judge
Srinagar
09.08.2024
"Bhat Altaf-Secy"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document
12.08.2024 09:59