Andhra Pradesh High Court - Amravati
Shaik Mohiddin, Spsr Nellore Dist. 2 ... vs P.P., Hyd on 29 May, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy, B Krishna Mohan
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
CRIMINAL APPEAL NO. 1374 OF 2014
JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) The appellants/Accused Nos. 1 to 3 (1. Shaik Mohiddin, 2. Shaik Badulla, 3. Pappula Madhu) in Sessions Case No.137 of 2012 on the file of I Additional District and Sessions Judge, SPSR Nellore, preferred this criminal appeal under Section 374(2) Cr.P.C, challenging the conviction and sentence passed in calendar and judgment dated 29.10.2014, whereunder the Trial Court found Accused Nos.1 and 2 guilty for the offence punishable under Section 302 I.P.C, sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.100/- each in default to undergo simple imprisonment for three months each. Accused No.1 is sentenced to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs.100/- in default to undergo simple imprisonment for three months for the offence punishable under Section 307 I.P.C. Further, Accused No.3 is further sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.100/- in default to undergo simple imprisonment for three months for the offence punishable under Section 114 r./w 302 I.P.C. Accused No.3 is sentenced to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs.100/- in default to undergo simple imprisonment for three months for the offence punishable under Section 114 r/w 307 I.P.C.
MSM,J & BKM,J CRL.A 1374 OF 2014 2 The parties hereinafter will be referred as accused and prosecution, to avoid inconvenience in reference.
The case of prosecution in nut-shell is that, on 17.04.2010 morning, a party approached Accused No.3 for measuring their plot in Saibaba Nagar and thereafter at 9:30 A.M, Accused No.3 took the deceased to show the said plot. The party paid Rs.200/- for their services. Accused No.3 refused to pay Rs.100/- to the deceased towards his share and there was quarrel between Accused No.3 and Malisetty Kondaiah (deceased). In that connection, at about 1 P.M, on the same day, Accused Nos. 1 and 3 went to the deceased while he was proceeding to his house, beat him. One G. Samson and other villagers intervened and separated them.
On the same day, at 6.30 P.M, all the accused noticed that the deceased and Malisetty Manohar - P.W.1 were proceeding by the side of their house on a motorcycle. When P.W.1 and Malisetty Kondaiah reached near the house of Accused No.3 on motorcycle, Accused Nos.1 and 2 who were armed with knives, hacked Malisetty Kondaiah who was pillion rider with knives on both sides of his neck at the instigation of Accused No.3. The deceased fell down on the ground from the motorcycle and died on the spot. When P.W.1 was questioned the accused about hacking of Malisetty Kondaiah, Accused No.1 also hacked P.W.1 on left side of the neck and caused injury. P.W.1 escaped with bleeding wound, subsequently, he was taken to the Government Area Hospital, Kavali by his brother Malisetty Madhu (L.W.2 not examined). Subsequently, Accused No.2 approached Bathina Venkata Radha MSM,J & BKM,J CRL.A 1374 OF 2014 3 Kumari - P.W.8 and informed her that they attacked the deceased. P.W.8 visited the scene of offence and declared Malisetty Kondaiah as dead. Thereafter, Accused Nos. 1 & 2 buried their knives in the sand stored on the rear side of their house and escaped.
On receipt of hospital intimation, N. Kishore Babu - P.W.13 went to hospital, recorded the statement of P.W.1 and registered the same as case in Crime No.56 of 2010 under Sections 302, 307 r/w 34 I.P.C.
During the course of investigation, the Investigating Officer visited the Government Area Hospital, Kavali, examined P.W.1, recorded his statement, got photographed the dead body of Malisetty Kondaiah (deceased)-Ex.P-18, held inquest over the body of Malisetty Kondaiah (deceased) in the presence of mediators - Ex.P-6 and referred the dead body for post-mortem examination, Ex.P-15 is the Post Mortem Report. The Inspector of Police, Kavali took up investigation, verified the investigation done by the Sub- Inspector of Police, Kavali Rural Police Station, observed the scene of offence in the presence of mediators, drawn rough sketch of the scene of offence and crime details form-Ex.P-5 and also took photographs of the scene of offence-Ex.P-18. Later, the accused was arrested on 20.04.2010 and on interrogation, in the presence of mediators, Accused Nos. 1 and 2 confessed that they had committed the offences, Ex.P-7 is the admissible portion of confessional statement and on the confession made by Accused Nos. 1 and 2, knives (M.Os.8 & 9) were seized, on production by accused Nos. 1 & 2 under the cover of panchanama Ex.P-8 in the presence of P.W-8, sent to Forensic Science Laboratory for MSM,J & BKM,J CRL.A 1374 OF 2014 4 examination along with letter of advice, received of FSL Report- Ex.P-19.
After collecting the entire material including, post-mortem examination report-Ex.P-15 and R.F.S.L Report-Ex.P-19, Inspector of Police, Kavali, came to conclusion that Accused Nos. 1 to 3 caused the death of Malisetty Kondaiah, filed charge sheet against accused Nos. 1 to 3/appellants and cognizance of the case was taken for the offence under Sections 302 and 307 IPC by the Additional Judicial Magistrate of First Class, Kavali and registered the same as PRC No.16 of 2011. The Additional Judicial Magistrate of First Class committed the case to the Sessions Division, Nellore, as the offence under Section 302 IPC is exclusively triable by Court of Sessions. The Principal Sessions Judge, Nellore, registered the same as Sessions Case No.137 of 2012 and later made over the same to I Additional District and Sessions Judge, Nellore.
On production of the accused, on execution of N.B.W, the accused was remanded to judicial custody. Upon hearing, the learned Additional Prosecutor and the Defence Counsel, the Sessions Court framed charges against Accused Nos. 1 to 3/appellants for the offence punishable under Sections 302 and 307 IPC, read over and explained to him in Telugu, they pleaded not guilty and claimed to be tried.
During trial, the prosecution has examined PWs. 1 to 13 and got marked Exs.P-1 to P-21, M.Os.1 to 9 to substantiate the case of the prosecution. After closure of prosecution evidence, the Accused Nos. 1 to 3 were examined under Section 313 Cr.P.C, explained the incriminating material that appeared against them in MSM,J & BKM,J CRL.A 1374 OF 2014 5 testimony of prosecution witness and they denied the same. None were examined on behalf of the accused and got marked Exs.D-1 and D-2 on behalf of the accused Nos. 1 to 3.
Upon hearing argument of learned Additional Prosecutor and Defence Counsel, the Court below found Accused Nos.1 and 2 guilty for the offence punishable under Section 302 I.P.C, sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.100/- each in default to undergo simple imprisonment for three months each. Accused No.1 is sentenced to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs.100/- in default to undergo simple imprisonment for three months for the offence punishable under Section 307 I.P.C. Further, Accused No.3 is sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.100/- in default to undergo simple imprisonment for three months for the offence punishable under Section 114 r./w 302 I.P.C. Accused No.3 is sentenced to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs.100/- in default to undergo simple imprisonment for three months for the offence punishable under Section 114 r/w 307 I.P.C.
Aggrieved by the conviction and sentence passed by the Court below in Sessions Case No.137 of 2012, the present appeal is preferred through legal-aid-counsel, raising several grounds that mainly the conduct of trial by the Trial Court is not in accordance with the procedure and the prosecution invented a different story which was accepted by the Trial Court erroneously.
MSM,J & BKM,J CRL.A 1374 OF 2014 6 Learned counsel raised various other grounds, more particularly, with regard to appreciation of evidence. It is also contended that, there was no reference of P.W.2 in the F.I.R. But, suddenly, P.W.2 is planted and evidence of P.W.2 was accepted by the Trial Court. Apart from that, the conduct of trial itself is not in accordance with the procedure and the Trial Court failed to conduct examination of the Accused nos. 1 to 3 under Section 313 Cr.P.C, explaining the incriminating material that appeared against them in the evidence of witnesses with reference to several documents and thereby the accused nos. 1 to 3 were deprived of their right to give explanation to the incriminating circumstances that appeared in the evidence of prosecution witnesses. Apart from that, the Trial Court invented a different story ignoring the specific case of the prosecution from the beginning. Hence, the calendar and judgment finding Accused Nos. 1 to 3 guilty for the offences and sentencing them stated above is illegal and contrary to the settled law, and requested to set-aside the same.
Learned legal-aid-counsel Sri M. Chalapathi Rao mainly pointed out about failure of the Trial Court to explain the incriminating circumstances that appeared against the accused in the testimony of prosecution witnesses while examining the accused Nos. 1 to 3 under Section 313 Cr.P.C, consequently, the conviction recorded by the Trial Court against Accused No.3 for the offence punishable under Sections 302 and 307 r/w 114 based on incriminating evidence which was not explained to Accused Nos. 1 to 3 is an illegality. It is contended that the Trial Court is not expected to invent totally a different story than the story narrated MSM,J & BKM,J CRL.A 1374 OF 2014 7 in the charge sheet and the findings recorded by the Trial Court are not based on any material and that too, findings of the Trial Court are not supported by any cogent and satisfactory evidence and requested to set-aside the same and acquit Accused Nos. 1 to
3. Considering rival contentions, perusing the material available on record, the points for determination are as follows:
1. Whether failure to examine Accused Nos. 1 to 3 under Section 313 Cr.P.C, explaining the incriminating circumstances that appeared against Accused Nos.1 to 3 in the evidence of prosecution is denial of opportunity to explain and vitiates the entire trial?
2. Whether Accused Nos. 1 and 2 caused injuries with M.Os. 8 & 9 with an intention to kill Malisetty Kondaiah, knowing that those injuries caused with two knives (M.Os.8 & 9) are sufficient to cause death in normal course of events. If so, the conviction and sentence imposed against Accused Nos. 1 and 2 for the offence punishable under Section 302 I.P.C be sustained?
3. Whether the finding against Accused No.3 for the offence punishable under Section 302 r/w 114 I.P.C and Section 307 r/w 114 I.P.C is in accordance with law and sustainable under law?
4. Whether Accused Nos. 1 to 3 formed into unlawful assembly and caused injuries on the body of deceased Malisetty Kondaiah?
Before going to decide the point framed for consideration, it is appropriate to advert to the scope of jurisdiction of this Court under Section 374(2) Cr.P.C.
Section 374 Cr.P.C conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this MSM,J & BKM,J CRL.A 1374 OF 2014 8 Court while exercising power under Section 374(2) Cr.P.C is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re- appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat1). Keeping the scope of Section 374(2) Cr.P.C we would like to re-appreciate entire evidence on record to come to 1 (2013) 15 SCC 263 MSM,J & BKM,J CRL.A 1374 OF 2014 9 an independent conclusion, uninfluenced by the findings recorded by the Court below.
P O I N T No.1 In view of the law laid down by the Apex Court in the judgment referred supra, this Court being the Court of Appeal, is entitled to examine not only the procedure followed by the Sessions Court, but also, the legality of the fact findings based on the material available on record, more particularly, the oral and documentary evidence.
As stated above, the other witnesses were examined, but for one reason or the other, during trial in the evidence of P.W.1, he stated as follows:
"On 17.04.2020 my father and A3 quarrelled with each other in the plot. A3 beat my father in the plot. A3 also informed the said fact t A1. At about 1-00 PM, Mohiddin (A1) and Madhu (A3) beat my fathr near Saibaba Nagar Centre. On the same day evening at about 6-00 or 6-10 PM, I, along with my father were proceeding towards Kavali for collection of money due to me. When we reached near to the house of A1 to A3, our motorcycle was stopped by A1 to A3 and mother of Mohiddin. All the three accused armed with knives. They proclaimed that they are rowdy elements in that area. A1 hacked me on the left side of my neck with knife. Madhu hacked my father with knife. My father fell down on the ground. Out of fear I ran away. Thereafter my brother joined me in Government hospital, Kavali. After one or two hours I came to know that my father succumbed to injuries."
The examination-in-chief was recorded on 17.04.2010 and the end of examination-in-chief on the day i.e. 01.07.2014, for the reasons best known to the learned Public Prosecutor, he confronted the signature shown on the statement dated 17.04.2010 to elicit whether P.W.1 subscribed his signature on the MSM,J & BKM,J CRL.A 1374 OF 2014 10 statement dated 17.04.2010, the witness identified his signature and stated that he cannot read the statement as he studies V Class, which is marked as Ex.P-1. Ex.P-1 can be used only to corroborate the evidence, but the learned Public Prosecutor for one reason or the other even without obtaining permission of the Court, confronted the signature of P.W.1 - Mallisetty Manohar to the witness, without considering the purpose of the statement.
At the stage when the witness was unable to read the contents of statement, the learned Public Prosecutor read out the contents of the statement of P.W.1 dated 17.04.2010 to the witness in the open Court and he admitted the same. But, the way as to how the learned Public Prosecutor read over the contents of the statement marked as Ex.P-1, is contrary to the provisions of the Indian Evidence Act, since such F.I.R can be used only for limited purpose and without obtaining permission of the Court reading the contents and explaining the contents of the witness by the learned Public Prosecutor is contrary to the procedure. Therefore, the procedure adopted by the Trial Court in recording evidence of P.W.1 is not in accordance with the law. Similarly, in the cross- examination dated 17.04.2010, several factors were elicited. Similarly, in examination-in-chief of P.W.2, he narrated about the incident. He turned back and heard the cries "Champandi Raa". Accused Nos. 1 and 2 dragged the deceased from the motorcycle, hacking him with knives on his neck and he was shifted by Madhu (L.W.2) to Government Hospital, Kavali on motorcycle. But, this part of incriminating material was not explained to accused in their examination under Section 313 Cr.P.C.
MSM,J & BKM,J CRL.A 1374 OF 2014 11 The learned Public Proseuctor contended that the motive is explained by P.W.1 and the same was put to the accused in their examination under Section 313 Cr.P.C in Question No.2. On verification of the entire examination of the accused, the Trial Court did not explain the contents of the document Ex.P-1, which set the criminal law into motion, narrating the incriminating material, alleging that the accused committed murder of Malisetty Kondaiah. When the Court failed to explain the incriminating material to the accused in their examination under Section 313 Cr.P.C, they are bound to utilize the opportunity of giving explanation, since the purpose of examination of the accused under Section 313 Cr.P.C is only to afford an opportunity to explain the incriminating circumstances by fllowing the principles of natural justice or audi alteram partem. When a particular incriminating material is not explained, more particularly, Ex.P-1 to Accused Nos. 1 to 3, in their examination, they lost their opportunity to explain. Hence, they were deprived of their valuable right to give explanation and such failure to provide an opportunity would amount to denial of an opportunity and violation of principles of natural justice or audi alteram partem.
Section 313 Cr.P.C contains a general provision regarding all inquiries and trials under the Code for the benefit of the accused. The whole purpose of examination of an accused under this section is to enable him to explain any circumstances appearing in evidence against him. For this purpose the Courtmay, at any stage of inquiry or trials, put such questions to him as the Court considers necessary. It is also provided that for the aforesaid MSM,J & BKM,J CRL.A 1374 OF 2014 12 purpose, namely, for enabling the accused to explain any circumstances appearing in evidence against him, the Court shall question him generally after the evidence for the prosecution has been closed, but, before he is called for the defence. It is obligatory on the Court to question the accused on the circumstances appearing against him in evidence so as to enable him to explain the same This section is intended for the protection and benefit of the accused persons and not in order to enable the prosecution to find out materials to support the prosecution case.
It is one of the most fundamental principles to be observed in a criminal trial that the accused should be called to explain the evidence available against him and should be thus given an opportunity of stating his own case. The maxim audi alteram partem expresses an elementary rule of justice. It seems to be extremely unfair for a Judge to rely upon a circumstances being incriminating without giving the accused any notice of it and without giving him an opportunity of explaining the circumstance.
Sub-section (1) is divided into two parts. The words in sub- section "for the purpose of enabling the accused to explain any circumstances appearing in evidence against him" govern both the clauses that follow. The word "generally" does not limit the nature of the questioning to one or more questions of general nature relating to the case, but it means that the questions should relate to the whole case generally and should not be limited to any particular part or parts of it. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him. The first part of sub-section (1) only gives power to the MSM,J & BKM,J CRL.A 1374 OF 2014 13 Court to put such questions to the accused as it considers necessary, but the second part of it imposes a duty to question the accused fully at the closure of the prosecution case. But since the examination of the accused is only for the purpose of enabling him to explain any circumstances appearing in evidence against him, no question of examination of the accused under Section 313 arises if there are no circumstances appearing against the accused.
The examination of the accused should be so as to enable him to explain any circumstance appearing in evidence against him. The accused must be questioned separately about each material circumstance which is intended to be used against him, and not about the inference that flows from the circumstances. The accused's attention should be drawn to every inculpatory material so as to enable him to explain it. Incriminating articles not put to the accused in examination under Section 313, cannot be used against him. However, it is not necessary that each separate piece of evidence in support of a circumstance should be put to the accused and he should be question in respect of it. It is not proper to read out a long series of questions or string together or a long series of facts and ask the accused what he has to say about them, he must be questioned separately about each material circumstance. The Court must take care to put all relevant circumstances appearing in evidence to the accused person. It would not be enough to put a few general and broad questions to the accused nor it would be fair or right that the Court should put to the accused person detailed questions which may amount to his MSM,J & BKM,J CRL.A 1374 OF 2014 14 cross-examination. Therefore the Court has to draw attention to every inculpatory material, explaining the circumstances, enabling the accused to give an explanation. 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 followed. 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.
Turning to the facts of the present case, the learned legal- aid-counsel mainly contended that the contents of Ex.P-1 were not explained to the accused, which is the basic document which set the criminal law into motion and at the earliest point of time, inculpates Accused Nos. 1 to 3/appellants. When such contents of the document were not explained, they were deprived of the right to give explanation. But, based on such document, the Trial Court recorded conviction and it would certainly cause prejudice or lead to miscarriage of justice as they had no opportunity to explain certain incriminating circumstances. Similarly, the Trial Court also failed to put certain questions with reference to the documents marked, more particularly, the observation report, nature of weapons used etc. Taking into consideration of those documents also, the Trial Court recorded conviction. Hence, the way the trial was conducted, including examination of the accused by the Trial Court is contrary to the procedure established by law and procedure prescribed under Criminal Procedure Code. More particularly, failure to explain incriminating material to the accused in the examination under Section 313 Cr.P.C, which MSM,J & BKM,J CRL.A 1374 OF 2014 15 causes serious prejudice would vitiate the entire trial. But, merely because the Trial Court failed to explain certain incriminating circumstances appearing against the accused, the entire conviction cannot be set-aside. At best, the Court may set-aside the conviction and sentence and send back the entire record to examine the accused afresh under Section 313 Cr.P.C, explaining every incriminating circumstance, including the contents of the document, giving description of the material objects, so as to enable them to explain the same and afford a reasonable opportunity, strictly adhering to the procedure prescribed under Section 313 Cr.P.C. That would serve the purpose of fair trial.
Learned Legal-Aid-Counsel, Sri M. Chalapati Rao contended that, even if fresh trial is ordered from the stage of examination of the accused under Section 313 Cr.P.C., it would not end in conviction, in view of several discrepancies in the evidence and the procedure followed by the Trial Court in conducting trial. But, this Court, at this stage, cannot set right the trial procedure followed by the Trial Court, as it would cause much prejudice to the accused. But, this Court can send the record to Trial Court with a direction to examine the accused afresh under Section 313 Cr.P.C and the question of sufficiency of evidence to record conviction of the accused can be examined only after conducting examination by the accused under Section 313 Cr.P.C afresh, strictly adhering to the observations made in the earlier paragraphs, consequently, the contentions of the learned Legal-Aid-Counsel Sri M. Chalapati Rao is hereby rejected. However, the accused are entitled to point out the defects before the Trial Court during argument and if, for any MSM,J & BKM,J CRL.A 1374 OF 2014 16 reason, such procedure adopted by the learned Sessions is prejudicial to the interest of the accused or causes substantial injustice. The accused may take advantage of it and the Court can consider such prejudice or substantial injustice, if any caused, at the time of pronouncement of judgment, upon hearing arguments afresh.
As examination of the accused under Section 313 Cr.P.C by the Trial Court is not in accordance with law, the other questions formulated by this Court for determination need not be decided, at this stage, since, the Trial Court is directed to dispose of the Sessions Case in accordance with law by conducting examination of the accused under Section 313 Cr.P.C afresh, taking into consideration of the observations made hereinabove. Therefore, no findings are recorded on Point Nos. 2 to 4.
In view of our foregoing discussion, we find it appropriate to allow the criminal appeal, setting-aside the impugned calendar and judgment vide Sessions Case No.137 of 2012 on the file of I Additional District and Sessions Judge, SPSR Nellore dated 29.10.2014, conviction and sentence passed thereunder, while sending back to the Trial Court entire record, with a direction to dispose of the Sessions Case in accordance with law by ordering conduct of examination of Accused Nos. 1 to 3 under Section 313 Cr.P.C afresh, explaining the incriminating circumstances appearing against them and afford a reasonable opportunity to the accused to file written statement, if they desire and hear arguments afresh.
MSM,J & BKM,J CRL.A 1374 OF 2014 17 In the result, criminal appeal is allowed, setting-aside the impugned calendar and judgment in Sessions Case No.137 of 2012 on the file of I Additional District and Sessions Judge, SPSR Nellore dated 29.10.2014, while sending back the same to the Trial Court with a direction to dispose of the Sessions Case in accordance with law from the stage of conducting examination of Accused Nos. 1 to 3 under Section 313 Cr.P.C afresh, explaining the incriminating circumstances appearing against them, by securing their presence and afford a reasonable opportunity to the accused to file written statement, if they desire and hear arguments afresh.
Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY _______________________________ JUSTICE B. KRISHNA MOHAN Dated:29.05.2020 SP