Karnataka High Court
Marlingappa S/O Basavaraj Chikkabudur vs The State Through C.P.I Shahapur on 15 September, 2020
Author: Krishna S. Dixit
Bench: Krishna S. Dixit
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE KRISHNA S. DIXIT
AND
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
CRIMINAL APPEAL No.200045/2014
BETWEEN:
Marlingappa S/o Basavaraj Chikkabudur
Age: 25 years, Occ: Agriculture
R/o Halgera, Tq: Shahapur
Dist: Yadgiri
... Appellant
(By Sri G.G.Chagashetti, Advocate)
AND:
The State through
C.P.I., Shahapur
... Respondent
(By Sri Prakash Yeli, Additional SPP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to allow the appeal and set aside the
judgment and order passed in S.C.No.35/2011 by the
District and Sessions Judge at Yadgiri dated 06.01.2012
convicting the appellant for the offences under Sections 302,
498-A of IPC and acquit the accused/appellant of the alleged
offences, in the interest of justice.
2
This appeal having been heard, reserved for judgment
on 18.08.2020 and coming on for pronouncement of
judgment this day, P.Krishna Bhat J., delivered the
following:-
JUDGMENT
The appellant herein was accused No.1 in Sessions Case No.35/2011 before the District and Sessions Judge at Yadgiri and his mother was accused No.2.
2. Deceased Shivamma and the present appellant got married about two years prior to 23.09.2010. They led harmonious marital life for some time and they had a male child together. Some time thereafter, it appears that the marital relationship ran into rough weather and it is suggested that it was on account of the suspicion of the appellant that deceased was developing interest in some other male person-who has remained unnamed during the trial and he was making accusation that she was ogling at some male person and deceased was reporting the same to her 3 parents during her visits to the parental home mainly to the effect that the appellant and his mother who was accused No.2 were making said allegation and the appellant was beating her. The father of the deceased and accused No.2 were siblings and the appellant herein was first cousin of the deceased. On 23.09.2010 the appellant herein and his mother who was accused No.2 before the Court below took the deceased to their cotton field situated in Halgera village ostensibly for spraying pesticide to the standing cotton crops and later on that day the deceased Shivamma was found with fractures of both bones of her right leg and also in a state of poisoning with Anucron which is an organo phosphorus substance generally used as a pesticide for protecting agricultural crops from insects and pests. It is alleged that deceased died in the hospital while undergoing treatment on the night of the incident namely, 23.09.2010. The father of the deceased lodged the complaint; investigation was held; and, the 4 appellant herein and his mother were charge sheeted for the offences punishable under Sections 498-A and 302 read with Section 34 of Indian Penal Code, 1860 ('IPC' for short).
3. After committal and by following necessary formalities, charges were framed by the learned District and Sessions Judge, Yadgiri and after affording requisite opportunity, trial was held before him. During the trial, PWs.1 to 17 were examined for the prosecution and Exs.P1 to P13 were marked. Mos.1 to 3 were also marked. Defence got marked Exs.D1 to D3. After closure of the evidence of the prosecution, the accused were examined by the learned Trial Judge under Section 313 of Cr.P.C. Defence did not examine any witnesses on their behalf. The learned Sessions Judge heard the rival sides and found the present appellant guilty of the offences punishable under Sections 498-A and 302 of IPC and accordingly convicted and sentenced him and acquitted his mother - accused No.2 by judgment dated 5 06.01.2012. It is against the said judgment of trial Court, the present appeal has been preferred.
4. Learned counsel appearing for the appellant contended before us that there are no eyewitnesses to the incident and the case of the prosecution rests entirely on circumstantial evidence. He submitted that there is no evidence to support the allegations that appellant was suspecting fidelity of the deceased or that he was harassing or assaulting her. He contended that the deceased had gone to the cotton field and apparently she had consumed pesticide and on coming to know the same, the appellant himself had admitted her to the hospital and he had no reason whatsoever to administer poison to her and such an allegation is not supported by any legal evidence let in during the trial. He submitted that the evidence on record clearly points to the deceased having consumed the pesticide, committing suicide and when such being the case, it is clear that since the appellant is the husband, he has 6 been falsely implicated in the case. It was his further contention that so called eyewitnesses namely, PW.10 (father of appellant No.1) and PWs.8 and 9 who are two neighbours of the appellant have all turned hostile. He strongly contended that evidence of PW.6 shows that one Dr.Shantesh Patil had initially treated the deceased when she was admitted to the hospital and non- examination of the said witness deprived the Court of an opportunity of forming a definite opinion as to whether the deceased was in a condition to speak when she was brought to the hospital. It was his contention that prosecution has deliberately withheld the said doctor to suppress the said information and also to cover up their failure to record the statement of the deceased when she was brought to the hospital even though she was in a condition to speak. He, therefore, submitted that the evidence placed on record does not make a complete chain of circumstances to point towards the criminal culpability of the appellant for 7 having committed the offences punishable under Sections 498-A and 302 of IPC and further that in all human probability appellant could not have been innocent. He submitted that the evidence placed is not sufficient from the standard of proof beyond reasonable doubt and therefore he is entitled to be acquitted.
5. Learned Additional SPP submitted that PWs.1 and 2 who are the parents of the deceased have spoken about the complaints frequently made by the deceased before them that the appellant was harassing and assaulting her on the allegation that she was ogling at some other male person. He submitted further that PWs.1 and 7 are the brothers of accused No.2 who is the mother of the present appellant and they have not made any other allegation like demand of dowry etc. and since they are closely related even dehors the marriage, they would not have made false accusation but for the fact that they were true. He contended that even though PW.10 (father of appellant) and PWs.8 and 8 9 the two neighbours of accused No.1/appellant have turned hostile, they have categorically stated about the present appellant taking the deceased to the cotton field few hours before the incident of poisoning on 23.09.2010. He also pointed out that the postmortem examination report shows that there were fractures of both bones of right leg of the deceased and as per the evidence of PW.6 the death was due to asphyxia as a result of organo phosphorus insecticide poison thereby clearly suggesting that deceased was incapacitated before administering poison. It was his contention that merely because the witnesses have turned hostile on a particular aspect of the case alone does not result in complete effacement of evidence of said witnesses and when that being the case, the appellant had a duty to explain as to when he departed from the company of the deceased especially when she was his own wife, and the field where the incident had taken place belonged to them and they had raised cotton crops in it. He invited 9 our attention to the statement of the appellant recorded under Section 313 of Cr.P.C. during the course of which appellant has blandly denied all the incriminating circumstances put to him by the Court without offering his explanation on the crucial aspects. He therefore submitted that cumulative effect of the entire evidence points only in one direction and that is towards pointing to the fact that the appellant had committed the offences punishable under Sections 498-A and 302 of IPC beyond reasonable doubt and therefore there is no warrant for interference with the judgment of conviction and sentence passed by the Court below.
6. After hearing the learned counsel on both sides and perusing the record, we are of the considered view that the matter is required to be remanded to the learned Trial Court and therefore we do not propose to discuss the entire evidence placed on record. 10
7. Learned Sessions Judge has come to the conclusion that the appellant was present with the deceased at the time of consumption of pesticide by the deceased. The learned Additional SPP while conceding that even though eyewitnesses to the incident have turned partly hostile, submitted that the evidence of PWs.8, 9 and 10 shows that the appellant who is the husband of the deceased had accompanied her to the field belonging to them for the purpose of spraying pesticide and the deceased was found with fractures of both bones of right leg and also she was found to have died due to consumption of organo phosphorus substance. It was his further contention that the appellant being the husband and with the evidence clinchingly showing that he had accompanied the deceased, he had a duty to explain as to what had happened to his wife, the deceased in this case, or, if he had departed from the company of the deceased, at what time he did so. He contended that it would have 11 been impossible for the accused/appellant to explain the same as he had further claimed that he himself had taken the deceased to the hospital. Be that as it may.
8. Perusal of the impugned judgment shows that learned trial judge had given a short shrift to the entire evidence of PWs.8 and 9 on the ground that they had turned hostile. However, our examination of the records show that PW.8 on being treated as hostile and on cross-examination, admitted the suggestion putforth by the learned Public Prosecutor that appellant had accompanied the deceased to the field (It is evident that learned Public Prosecutor in the court below was negligent in suggesting the date as 21.09.2010 when the actual date of incident was 23.09.2010). PW.9 while turning hostile on the important aspect of he having seen the incident has supported the case of the prosecution by stating that he had seen the appellant accompanying the deceased to their cotton field for spraying pesticide. PW.10 who is the father of the 12 appellant while turning hostile to the case of the prosecution on other aspects of the case has stated that appellant and deceased had gone to their field for spraying pesticide. By accepting and placing reliance on the said evidence of PW.10, the learned Trial Judge has found that appellant had accompanied the deceased to their cotton field for spraying pesticide and since she was found with serious injuries on her leg which according to the medical evidence was of recent origin (see PW.6), the appellant ought to have explained as to when he had departed from her company and that having not been done by him, it was a serious incriminating circumstance pointing to his guilt.
9. Learned Additional SPP in addition to the reasoning given by the learned Trial Judge had also called in aid, to buttress the above reasoning, the supporting portion of the evidence of PWs.8 and 9 who had turned hostile by placing reliance on the decisions of the Hon'ble Supreme Court of India regarding 13 permissibility of using the evidence of hostile witnesses which support the case of the prosecution [Vide (2012) 4 SCC 327 - Bhajju alias Karan Singh vs. State of M.P.- at paras 35 to 37].
10. We have carefully perused the evidence of PW.8, PW.9 and PW.10. The evidence so pointed out by learned Additional SPP has an unerring tendency to point to the fact of accused accompanying the deceased to the cotton field where the incident took place soon thereafter. Therefore, it is axiomatic, that this piece of evidence is an incriminating aspect in the deposition of PW.8, PW.9 and PW.10 against accused/appellalnt.
11. However, when we perused the questions put to the appellant by the learned Trial Judge during his examination under Section 313 of Cr.P.C., we noticed that the attention of the appellant was not drawn to the above incriminating aspects spoken to by PWs.8, 9 and 10 and no opportunity was given to him to 14 offer his explanation. The presumption under Section 106 of the Evidence Act would come to the aid of the prosecution only after an opportunity of offering an explanation to the incriminating circumstances is afforded to the accused-in this case the appellant and yet, he does not avail the same regarding when he left the company of the deceased.
12. The learned Trial Judge has not drawn the attention of the appellant to the incriminating aspects emanating from the depositions of PWs.8 and 9 which learned Additional SPP pressed into service in support of his contention that there is evidence clearly showing that the appellant was with the deceased at the time when she suffered injuries and also she was found in a state of having been poisoned with organo phosphorus substance on the mistaken impression that PWs.8 and 9 had completely turned hostile and therefore their evidence does not avail the prosecution. 15
13. In so far as the evidence of PW.10 is concerned on which the learned Trial Judge has placed reliance for coming to the conclusion that the appellant had accompanied the deceased to the cotton field where the incident took place, the only question put to the appellant is at question No.19; and it reads as follows:
"
.
16
14. The incriminating aspect of the evidence of PW.10 regarding accused accompanying the deceased to the cotton field on the fateful day relied upon by the learned Sessions Judge is no part of the said question.
15. Therefore, the appellant had no opportunity to offer his explanation whatsoever on the incriminating material on this aspect which had persuaded the learned Sessions Judge to come to the conclusion, he did, which resulted in his finding the accused/appellant guilty of the offence punishable under Section 302 of IPC. In the instant case, it cannot be gainsaid that the appellant "last seen together" with the deceased forms the substratum of the case of the prosecution.
16. It is well settled that incriminating material available in the deposition of prosecution witnesses can be utilized against the accused to his detriment only if the same is brought to the attention of the accused and an opportunity is given to him to explain the same. Any 17 violation of the above, results in serious prejudice to the accused/appellant.
17. Section 313 of the Code of Criminal Procedure, 1973 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).
18(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.
(5) The Court may take help of Prosecutor and defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."
18. Observing the above mandate of the law in a criminal trial is not an empty formality. An onerous responsibility is cast on the Trial Judge to put each incriminating aspect of the case available in the evidence pointedly to the accused and record his reply 19 to the same faithfully in a question and answer manner. The duty cast under Section 313 of Cr.P.C. is a solemn one. Any laxity in recording the statement under Section 313 of Cr.P.C. will have serious consequences on the life and liberty of the person facing prosecution and more so when he is facing serious charges like the one under Section 302 of IPC.
19. This Court had an opportunity to elaborately explain the importance and mandatory nature of the duty of recording statement under Section 313 of Cr.P.C. and the manner in which the Trial Judge has to discharge the same. The case in point is the one reported in ILR 1991 KAR 1542 (State vs. Dasharath). The relevant observations made by the learned co-ordinate Bench of this Court are as follows:
"5. Section 313 of the Code provides an opportunity to the accused "personally to explain any circumstance appearing in the evidence against him". The answers given by 20 the accused may be taken into consideration in such trial. With a view to provide a fair opportunity to the accused, the law casts the obligation on the Court itself to frame the relevant questions that the accused may have an opportunity to explain all circumstances appearing against him. To ensure fairness, the questioning is to be done by the Court without the aid of the Counsel and this at once emphasises the seriousness of the duty cast upon the Court. The Court must question the accused in relation to all incriminating circumstances appearing against the accused. Even if the accused was present when the witnesses deposed against him, the law still casts upon the Court a duty to marshal the evidence and to cull out all the incriminating circumstances and question the accused in respect thereof so that the accused may offer his explanation. In a sense, the Court must also be satisfied that the accused has understood the circumstances appearing against him and gave whatever explanation he had in regard thereto. The Law Commission in its 41st Report thought that the 21 stage has not yet been reached for the deletion of this provision and may be in future, with better education and better facilities for legal aid this matter may have to be reconsidered in the changed circumstances. As the law stands today, Section 313 of the Code provides not only the accused an opportunity to explain the circumstances appearing against him, but also the Court an opportunity to have a personal dialogue with the accused to elicit such explanation as he may have to offer, free from the fear of being trapped to make an embarrassing admission or statement or of being led to make any statement meant to fill up the lacuna in the prosecution case. The questioning by the Court must inspire this confidence in the accused that the questioning is meant for his benefit and not for the benefit of the prosecution. The purpose of the examination of the accused is only to elicit his explanation in regard to circumstances appearing against him and nothing more. The duty is cast upon the Court to see to it that this purpose is achieved and that the 22 examination of the accused is not reduced to a mere formality.
6. In putting questions to an accused, the Courts must not forget that the questioning must be fair and concluded in a form which an ignorant or illiterate person will be able to appreciate and understand. The Courts cannot lose sight of the fact that in large number of cases the accused may not be fully equipped to follow and appreciate all that is said in Court against him. Moreover, while facing a criminal charge, the accused may be in a disturbed state of mind which may further cloud his understanding. It is therefore of essence that the questions put to the accused are couched in simple language and are specific. The examination of an accused under Section 313 of the Code in neither a test of his intelligence nor his memory. For the proper discharge of the duty cast upon the Court, it is obliged first to marshal the evidence that has come on record. It must thereafter cull out all the circumstances appearing against the accused. The next step is to arrange the 23 circumstances as far as possible in a chronological order. The last step is to frame appropriate questions and in doing so, as far as possible, each question must be specific and must relate to a specific circumstances appearing against the accused. It is improper to roll into one question several circumstances appearing against the accused, and to seek his explanation. When such questions are framed and put to the accused, the whole purpose of the examination is defeated because such questions fail to pin-point the attention of the accused to the specific circumstance for which his explanation is sought. The questions must therefore be couched in simple language which can be understood even by an illiterate person and must relate to a single circumstance as far as possible. The circumstances of the case must be put in chronological order so that he may be able to appreciate the prosecution case against him and the circumstances which the prosecution wishes to establish against him.
7. The practice of putting general questions to the accused must also be 24 deprecated. The duty of the Court while examining an accused is not to put to him the entire evidence on record. The duty is to put specific circumstances of incriminating nature upon which the prosecution relies, and which appear from the evidence on record. The specificity must be in regard to the circumstances appearing against the accused. The Court cannot absolve itself of its duty by putting general questions without specifying the incrimination circumstances.
8. Very often, we have noticed that a question runs into half a typewritten page or even more. It is difficult for an accused to remember each and every fact mentioned in the question. It is therefore necessary that the questions must not only be in simple language and specific but also must not be unnecessarily lengthy, so that the accused is not able to comprehend the question put to him. Needless to emphasise that the more incriminating the circumstance, the more specific should be the question put to the accused.25
9. The way in which the questions to be put to the accused under Section 313 Cr.P.C. are being framed by the Magistrates and even by Sessions Judges makes us doubt whether they have themselves framed those questions, or whether they have been prepared by some staff member. If latter is the case, it should be deprecated.
10. It is our common experience that the evidence adduced in the case is not in the chronological order of events projected by the prosecution. Nevertheless the lower Courts start the questions right from the first witness and end up with the last witness. This type of questioning, putting forward the events in a haphazard manner, is likely to confuse the accused many a times and therefore it is necessary that the questions should be in the chronological order of events. Therefore, after the close of evidence the entire evidence shall be marshalled and arranged in a chronological order of events. For one single circumstance there should be one question. Each question shall not be in respect of more than one circumstance. If a single 26 circumstance has been spoken to by a number of witnesses, it is not necessary to frame questions in respect of that circumstance as many times as the number of witnesses who have spoken with reference to the same. That circumstance spoken to by a number of witnesses could form the subject matter of one single question.
11. Sub-section (3) of Section 313 of the Code makes it clear that accused shall not render himself liable for punishment by refusing to answer such questions or by giving false answers to them.
If after framing the question the accused is asked as to "what" he has to say, a sensitive accused may take it that it is mandatory duty on his part to answer the question or that disobedience thereof shall entail a punishment. To dispel any such notion, it would be better if he is asked "whether" he wished to say anything in the matter.27
12. In the performance of its duties, the Court necessarily has to take up itself the responsibility of framing appropriate questions and this entails a comprehensive marshalling of the evidence brought on record. Before questioning an accused under Section 313 Cr.P.C., the Court must be quite clear in its mind as to the case sought to be proved by the prosecution and the circumstances upon which the prosecution wishes to rely. This involves hard work and therefore unless the Court is in full grip of the facts of the case, questioning of the accused under Section 313 of the Code should not be attempted. Unfortunately, as large number of cases have demonstrated before us, the responsibility cast upon the Courts is not being seriously undertaken in large number of cases and an impression has gained ground that the examination of the accused is a mere formality, which must be performed after the prosecution closes its evidence. We wish to dispel this impression from the mind of the judges and Magistrates who are called upon 28 to discharge a solemn duty under Section 313 of the Code."
20. The above interpretation of the mode of recording the statement and the role of the trial judge in the same has been approved by the Hon'ble Supreme Court of India in various decisions and also reiterated by this Court. In view of the above violation of the precious right of the accused to know the incriminating circumstances available on record and also denial of an opportunity to offer his explanation to the same which has serious implication on his life and liberty in this case, it is necessary to set aside the impugned judgment and remand the case to the learned Sessions Judge for formulating proper questions for putting the same while examining the accused under Section 313 of Cr.P.C. keeping in view the observations of this Court as extracted above in Dasharath's case and thereafter hear and pronounce the judgment in accordance with law. This view of ours receives support from the 29 decision of Hon'ble Supreme Court of India reported in (2015) 1 SCC 496 (Nar Singh vs. State of Haryana - paragraph Nos.27, 28 & 29) "27. The point then arising for our consideration is, if all relevant questions were not put to the accused by the trial court as mandated under Section 313 CrPC and where the accused has also shown that prejudice has been caused to him or where prejudice is implicit, whether the appellate court is having the power to remand the case for redecision from the stage of recording of statement under Section 313 CrPC. Section 386 CrPC deals with power of the appellate court. As per sub-clause (b) (i) of Section 386 CrPC, the appellate Court is having power to order retrial of the case by a court of competent jurisdiction subordinate to such appellate court. Hence, if all the relevant questions 30 were not put to the accused by the trial court and when the accused has shown that prejudice was caused to him, the appellate court is having power to remand the case to examine the accused again under Section 313 CrPC and may direct remanding the case again for retrial of the case from that stage of recording of statement under Section 313 CrPC and the same cannot be said to be amounting to filling up lacuna in the prosecution case.
28. In Asraf Ali V. State of Assam, this Court has examined the scope and object of examination of accused under Section 313 CrPC and in para 24 it was observed that in certain cases when there is perfunctory examination under Section 313 of the Code, the matter could be remitted to the trial Court 31 with a direction to retry from the stage at which the prosecution was closed.
29. In Ganeshmal Jashraj V. State of Gujarat, after closure of evidence of the prosecution and examination of the accused under Section 313 CrPC was completed, the accused admitted his guilt presumably as a result of plea bargaining and the accused was convicted. Pointing out that the approach of the trial court was influenced by the admission of guilt made by the accused and that conviction of the accused cannot be sustained, this Court has remanded the case to the trial court to proceed afresh from the stage of examination under Section 313 CrPC."
(Emphasis Supplied) 32
21. Accordingly, the judgment and order of the learned Sessions Court at Yadgiri in S.C.No.35/2011 dated 06.01.2012 is set aside and the matter is remanded to it to proceed with the case from the stage of recording the statement of appellant keeping in view the observations of this Court in Dasharath's case and decision of Hon'ble Supreme Court of India in Nar Singh's case and thereafter shall dispose of the case in accordance with law. Since the case is of the year 2011, learned Sessions Judge shall conclude the entire exercise within a period of three months from the date of receipt of certified copy of this judgment. The accused-appellant shall remain in judicial custody.
Registry is directed to transmit the entire records to the Trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE Srt