1997 ALL MR (Cri) 1341
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
N.P. CHAPALGAONKAR AND S.G. MUTALIK, JJ.
Digamber S/O. Eknath Survase Vs. The State Of Maharashtra
Criminal Appeal No.386 of 1993
30th April, 1997
Petitioner Counsel: Shri PRASHANT DESHMUKH
Respondent Counsel: Mrs. A.S. RASAL
Criminal P.C. (1973), Ss.313 and 401 - Examination of accused - Opportunity to explain circumstances found against accused has to be given - Omission vitiates trial only if prejudice is caused.
If the trial Judge does not put all the circumstances found against the accused and does not given him an opportunity to give explanation, in case if circumstances, which were not put to the accused, have weighed while arriving at the conclusion that the accused is guilty, the judgment cannot stand. But in all cases, omission to put any question does not vitiate the trial. If it has not resulted into prejudice to the accused, the omission would not affect. Thus, the consequences of the non-compliance of the provisions of section 313 will depend on the facts of the case and may differ. If it is shown that there is no prejudice to the accused and the omission was minor and immaterial then it may be overlooked. If the facts of the case warrant that the accused will have to be given a fresh opportunity by putting him proper questions, then instead of setting aside the order of conviction such a course can be adopted and in some cases, where it is shown that because of the defective questioning, a grave prejudice is caused to the accused which cannot be remedied by remitting the case for re-examination, then whole trial would vitiate. [Para 10,11]
Further, when serious offences are tried by the Courts and the Courts find accused guilty, merely because there is a defect in the questions put to the accused, it would not be proper to acquit the accused holding that the trial is vitiated on account of such a defect, unless it is shown that re-examining accused and direction to decide case afresh from that stage would prejudice the accused. This would be well within the powers of the High Court under section 401 of the Code of Criminal Procedure, 1973. In the instant case, the accused would not be prejudiced if direction is issued to hold fresh and proper examination under statutory provision. [Para 12]
N.P. CHAPALGAONKER, J. :- In the early hours of 31.12.1990, the door of the house of Police Patil - Miyasaheb (PW-1) was knocked by the present accused - appellant, who informed the police patil that he has committed the murder of his wife Pathrabai. Police Patil went to the house of accused, saw the dead body of Pathrabai and took the accused to the Police Station. First information report was lodged by the accused himself and an offence at CRI. No.103/90 was registered under section 302 of the Indian Penal Code at the Police Station, Murud. When the accused - appellant was arrested, blood-stains were found on the pant which was on his person. Panchanama of arrest is at Exhibit 19. First information report lodged by accused is at Exhibit 23. Panchanama of the scene of offence is at Exhibit 26, and the inquest panchanama is at Exhibit 27. It is also alleged that a sharp cutting kitchen instrument used for vegetables (Vili) was recovered in furtherance of information given by the accused. Memorandum is at Exhibit 29 and panchanama of recovery is at Exhibit 29A. PW.5 Dr. Subhash Mashalkar, Medical Officer has deposed that he found as many as 8 injuries on the person of the deceased and opined that the cause of death is cardio-respiratory failure secondary to spinal cord injury with haemorrhagic shock with third rib fracture. Post mortem notes are at Exhibit 31. P.W.6 - Suglabai, mother of the deceased Pathrabai and Ambadas Gaikwad - P.W.8 speak about the previous conduct of the accused and allege that the appellant was ill-treating his wife Pathrabai.
4. Samples of the earth where the dead body was lying and the sample of the blood soaked portion of the earth and the white metal vessel and mat lying near the dead body which had also blood stains, were sent to the Chemical Analyser alongwith the alleged weapon of the offence and clothes which were on the person of the deceased and the accused. Chemical Analyser's report is at Exhibit 51. Blouse which was on the person of the deceased Pathrabai was found to have human blood stains. All these blood stains were of Group 'B'. Same blood group was detected on the pant which was on the person of the accused when he was arrested and also on the kitchen instrument which was used for inflicting injuries on the deceased Pathrabai.
5. After recording the evidence, learned IInd Additional Sessions Judge, Osmanabad was pleased to convict the accused for offence under Section 302 of the Indian Penal Code and directed him to suffer rigorous imprisonment for life and to pay fine of Rs.500/- and in default to undergo further rigorous imprisonment for six months. This judgment and order dated 14.9.1993 passed by the IInd Addl. Sessions Judge, Osmanabad has been challenged in this Appeal.
6. This is a case based on circumstantial evidence. Para 29 of the judgment of the learned trial Judge mentions the circumstances which weighed his mind for holding the accused guilty. The relevant portion is as under -
" In a nut-shell I propose to put these circumstances, as the conduct of the accused immediately after the commission of the crime. The recovery of the weapon at the instance of the accused. The blood stains on the pant of the accused having blood group of deceased Pathrabai. Similar blood group found on the sickle, recovered from accused under recovery panchanama. The motive behind the crime, that, accused was unhappy due to Pathrabai's illicit relations with Mohamad. Possibility of causing injuries on the person of deceased Pathrabai due to muddemal sickle. All these circumstances, if collectively taken together definitely support the case of the prosecution about the commission of the crime by the accused and accused only."
It appears that the learned Judge took following circumstances into consideration.
1. Accused being unhappy about alleged illicit relation of Pathrabai with Mohamed.
2. Conduct of accused - ill treatment to wife when she was at her mother's house as deposed by Suglabai (PW 6) and Ambadas (PW 8).
3. Blood of group 'B' having been found on clothes which Pathrabai was wearing and articles - German silver vessel and mat lying in the room where dead body was found are same blood group found in blood stains on pant which accused was wearing.
4. Recovery of weapon of offence in furtherance of information by accused.
5. Blood of Group 'B' found on weapon recovered.
Out of these, circumstances taken into consideration by the learned trial Judge (a) the fact that group of the blood found on the clothes of deceased Pathrabai was of 'B' group, (b) the fact that the same blood group was found on the earth, German silver vessel and mat in the room, (c) the fact that weapon of offence was also having blood of group B and (d) the pant which was found on the person of the accused at the time of his arrest was having blood stains of the same blood group 'B', were not put to the accused at all. Similarly, fact that witness Ambadas has deposed about the ill treatment of Pathrabai at the hands of the accused - appellant was also not put to the accused. This is virtual denial of an opportunity to the accused to give an explanation which may be innocent.
7. 8 injuries were found on the person of Pathrabai and out of which, injuries No.1, 2, 3, 4, 7 and 8 are possible due to Article No.12 (weapon of offence) as per the deposition of Dr. Mashalkar. Even this fact was not put to the accused. We also disapprove the manner in which the question about the injuries was put to the accused. It only says that there were in all 8 injuries found on the body of Pathrabai. In fact, nature of the injury was very much material, and therefore, injury should have been described in the question.
8. In all, 13 questions have been put to the accused, out of which, question No.1 and 10 to 13 are formal in nature and questions relating to the facts of circumstances held proved by prosecution against accused are only question Nos. 2 to 9, both inclusive. In these 8 questions, confession of the accused before the Police Patil (PW 1), recording of the first information report about the crime by the accused deposed by A.S.I. Mehetre (PW 2), recovery of the weapon of offence in furtherance of the information given by the accused under section 27 of the Evidence Act as deposed by Vinayak (PW 4), Dr. Subhash Mashalkar, Medical officer (PW 5) finding eight injuries on the person of Pathrabai and giving opinion that she died due to cardio-respiratory failure secondary to spinal cord injury with haemorragic shock with third rib fracture, ill treatment of the deceased prior to the incident as deposed by her mother Suglabai (PW 6) are the only circumstances put to the accused.
9. Examination of the accused under section 313 of the Code of Criminal Procedure, 1973 (342 of the Code of Criminal Procedure, 1898) is an important part of the trial procedure. Faithful and fair observance of the provision cannot be too strongly stressed. Supreme Court in Tara Singh v. The State, A.I.R. 1951 S.C. 441 observed that :
"It is not sufficient compliance to string together 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 which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in not fit position to understand the significance of a complex question."
Again in Rama Shankar Singh and others v. State of West Bengal, A.I.R. 1962 S.C. 1239, Supreme Court pointed out :
"The Sessions Judge in rolling up several distinct matters of evidence in a single question acts irregularly. Examination of the accused under S.342 is not intended to be an idle formality, it has to be carried out in the interest of justice and fairplay to the accused; by a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence."
In S.Harnam Singh v. The State (Delhi Admn.), A.I.R. 1976 S.C. 2140, Supreme Court observed that :
"It is the duty of 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. Therefore, each material circumstance appearing in evidence against the accused in required to be put to him specifically, distinctly and separately."
In Sharad Birdhichand Sarda v. State of Maharashtra, A.I.R. 1984 S.C. 1622, Supreme Court reminded that the circumstances which were not put to the accused in his examination under section 313 of the Code of Criminal Procedure have to be properly excluded from consideration. If we keep this important relevance of the examination of the accused under section 313 of the Code of 1973 in mind we find that the learned Sessions Judge in the instant case has not performed his duty as required.
10. If the trial Judge does not put all the circumstances found against the accused and does not give him as opportunity to give explanation, what would be the result. If the circumstances, which were not put to the accused, have weighed while arriving at the conclusion that the accused is guilty, naturally the judgment cannot stand. But in all cases, omission to put any question does not vitiate the trial. If it has not resulted into prejudice to the accused, the omission would not affect.
11. If it is found that further questioning would have been purposeless, then the omission made would not be of any consequence. In Makan Jivan and others, v. State of Gujarat, A.I.R. 1971 S.C. 1797 Supreme Court observed :
" It is, however, well settled that every error or omission in complying with section 342 does not necessarily vitiate the trial. Errors of that type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused."
In Ajit Kumar Chowdhary v. State of Bihar, A.I.R. 1972 S.C. 2058, Supreme Court held :
"It is no doubt true that courts must take care to put all the relevant material circumstances appearing in evidence to the accused so as to enable him to say in his defence what he wants, in respect of the prosecution case and explain any circumstances appearing in evidence against him, but at the same time, every error or omission in complying with S.342, Cr.P.C. does not necessarily vitiate the trial. Unless injustice results from an irregularity in complying with S.342, interference on this ground would not be justified."
Thus, the consequence of the non-compliance of the provisions of section 313 will depend on the facts of the case and may differ. If it is shown that there is no prejudice to the accused and the omission was minor and immaterial then it may be overlooked. If the facts of the case warrant that the accused will have to be given a fresh opportunity by putting him proper question, then instead of setting aside the order of conviction such a course can be adopted and in some cases, where it is shown that because of the defective questioning, a grave prejudice is caused to the accused which cannot be remedied by remitting the case for re-examination, then whole trial would vitiate.
12. When serious offences are tried by the Courts and the Courts find accused guilty, merely because there is a defect in the questions put to the accused, it would not be proper to acquit the accused holding that the trial is vitiated on account of such a defect, unless it is shown that re-examining accused and direction to decide case afresh from that stage would prejudice the accused. This would be well within the powers of the High Court under section 401 of the Code of Criminal Procedure, 1973. In the instant case, we find that in the earlier examination under section 313, the only answer given by the accused is that the fact stated in the question is false. We do not find that the accused would be in any way prejudiced, if we direct fresh and proper examination of the accused under the statutory provision.
13. We, therefore, allow the appeal partly, set aside the order of conviction and sentence passed by the learned IInd Additional Sessions Judge, Osmanabad on 14-9-1993 in Sessions Case No.86/91 and remit the matter back to the learned Sessions Judge for re-framing the questions to be put to the accused under section 313 including all circumstances and facts which have been brought by prosecution in evidence and which are incriminating. In the light of the observations made above, he should examine accused afresh under section 313 of the Code and then hear the Counsel for both the parties and write a fresh judgment. Looking to the fact that the accused is in jail, the matter should be disposed within a period of 3 months from the date of receipt of record from this Court. Record to go forthwith.