Document Fragment View

Matching Fragments

( Per : Madhav J. Jamdar, J. )

1. The appellant-original accused has filed above appeal challenging the judgment and order dated 28.06.2018 passed by the learned Principal District & Sessions Judge, Nagpur in Sessions Trial No.393/2015. By the said judgment and order, appellant was convicted as per Section 235(2) of the Code of Criminal Procedure of the offence Judgment 2 APL158.2019.odt punishable under Section 302 of the Indian Pena Code for having committed murder of deceased Munesh Lilhare and was sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months. The appellant was also convicted of the offence punishable under Section 201 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.2,000/-, in default to suffer rigorous imprisonment for two months. It was further directed that all the sentences shall run concurrently.

Considering ratio laid down in the citations relied upon by the learned APP, such an infirmity cannot be said to be fatal when only human blood is detected and no blood group is detected."

9. In view of this background of the matter and although the learned Trial Court has passed well reasoned Judgment and given extensive reasons and also recorded very detailed statement under Section 313 of Code of Criminal Procedure of the appellant, we find that although, chemical analyzer's reports are extensively relied and Judgment 12 APL158.2019.odt rightly so by the learned Trial Court, however, the contents of the same are not put to the appellant during his examination under Section 313 of the Code of Criminal Procedure. The relevant portion of the examination of the appellant under Section 313 of the Code of Criminal Procedure is reproduced herein below for ready reference :

cannot be determined as the results are inconclusive. "

10. The relevant portion of Section 313 of the Code of Criminal Procedure is set out herein below for ready reference :

Judgment 14 APL158.2019.odt "Section 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-

13. The Hon'ble Apex Court in the judgment in the case of Mohd. Hussain Alias Julfikar Ali Vs. State (Government of NCT of Delhi), reported in 2012 (9) SCC 408 in paragraph No.41 while dealing with the power of Appellant Court under Section 386(b) of the Code of Criminal Procedure observed as follows :

Judgment 17 APL158.2019.odt "41. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked." (Emphasis supplied) In this case, the offences with which the appellant is charged are of very serious nature and if the prosecution succeeds and the appellant is convicted under Section 302 of the Indian Penal Code the sentence could be death or life imprisonment. We are remanding the case to the Sessions Court just to afford the opportunity to the appellant to explain the evidence as emerged in the C.A. reports. While Judgment 18 APL158.2019.odt remanding the case, we have also taken into consideration that the entire evidence is led by the prosecution and the circumstances which are incriminating are put to the accused extensively under Section 313 of the Code of Criminal Procedure and questions also regarding the C.A. reports generally in the manner set out herein above are put to the accused. However, the particulars of the C.A. reports particularly the contents of the same which are incriminating against the accused are not put to the accused and therefore, to give opportunity to the appellant to explain the said circumstances, we are exercising our power under Section 386(b) of the Code of Criminal Procedure remanding matter for conducting re-trial from the stage of recording additional statement of the appellant-accused under Section 313 of the Code of Criminal Procedure It is significant to note that as held by the Hon'ble Apex Court in the Case of Mohd. Hussain Alias Julfikar Ali Vs. State (Government of NCT of Delhi), ( cited supra) that re-trial contemplated under Section 386(b) of the Code of Criminal Procedure is not a second trial but it is a continuation of same trial and same prosecution. We are exercising our power under Section 386(b) of the Code of Criminal Procedure to protect the right of the appellant to fair trial and due process and also keeping in mind the interest of the society. As we have found that certain questions which are to be put to the appellant-accused under Section 313 of the Code of Criminal Judgment 19 APL158.2019.odt Procedure, 1973 were not put to him and therefore we are remanding the case and we are not discussing and analyzing in detail the evidence on record. Therefore, we pass the following order :