Banarsi Dass vs State of Jammu & Kashmir

J.P. Singh, J.—This Criminal appeal is directed against judgment dated 3.1.2002 and order dated 4.1.2002 of learned 2nd Additional

Sessions Judge, Jammu whereby he has convicted the appellant under Sections 304 part-II, 309 R.P.C and u/s 4/25 Arms Act and sentenced him

to undergo rigorous imprisonment for 7 years u/s 304 part-II and one year simple imprisonment u/s 309 R.P.C and one year rigorous

imprisonment u/s 4/25 Arms Act.

The prosecution case, in nut-shell, is that on 29.6.1997 Asha Devi, Rekha Devi, Mst. Bima, and Geeta Devi, were going back to their

respective houses, after answering the call of nature, when they saw appellant Banarsi Dass causing injury to the abdomen of Geeta Devi with a

'Krich'. It is further alleged that the appellant, after causing injury to Geeta Devi, had tried to commit suicide by causing injury to his person. The

intention, imputed to the appellant is that he wanted to marry Geeta Devi, which had been objected too by deceased Geeta Devi and her parents.

Geeta Devi was taken to Hospital where she was declared dead. Appellant was also taken to the Hospital on the same day. The appellant was

charged under Sections 302, 341, 309 R.P.C and u/s 4/25 Arms Act,

On the basis of evidence recorded during the trial, learned Sessions Judge came to a conclusion that it was not an intentional murder, but the

injury caused to the abdomen of the deceased Geeta Devi was such, which the accused knows that it may cause the death of Geeta Devi. He

further holds that the appellant tried to commit suicide.

On the basis of these findings learned Sessions Judge held that a case u/s 304 part-II R.P.C was made out and, accordingly, convicted the

appellant for the offences punishable u/s 304 part -II, 309 R.P.C and 4/25 Arms Act.

Sh. M.M.Gupta, learned Counsel appearing for the appellant, has questioned the finding/conviction recorded and sentence imposed by the

learned Sessions Judge. According to learned Counsel, the prosecution story is un-natural, besides being unbelievable. He submits that all the

prosecution eye witnesses have stated that the place of occurrence was pitch dark and in view of the matter finding guilt cannot be recorded

against the appellant.

He has further submitted that the circumstance, proved by the prosecution regarding sustenance of injury by the appellant on the date of

occurrence and immediately after causing injury to Geeta Devi, is not by itself sufficient to connect the appellant with the commission of offence. He

further submits that the evidence relied upon by the prosecution, during the trial of the case, attributing declaration to the appellant that he wanted

to end his life and had been been found injured by one of the prosecution witnesses, cannot be used against him because incriminatory

circumstances appearing in the evidence, have not been put to him in his statement u/s 342 Cr.P.C for his explanation.

Learned Counsel appearing for the appellant further submits that prosecution evidence cannot be read against him, unless he is provided an

opportunity to explain the circumstances appearing in evidence against him.

Sh. B.S. Slathia, learned Additional Advocate General, on the other hand, submits that the prosecution has succeeded in proving its case to the

hilt and minor discrepancies in the evidence, here and there, do not discredit case of the prosecution. He further submits that the prosecution case

stands admitted by the appellant, when he himself admits in his reply u/s 342 Cr.P.C, that he had been taken to the Hospital in an injured condition

on the date of occurrence.

Sh. B.S. Slathia, further submits that appellant has committed heinous offence of murder and he cannot escape punishment on the ground that

there is no substantial compliance of Section 342 Cr.P.C.

I have considered the submissions of the learned Counsel for the parties. I have gone through the statement recorded u/s 342 Cr.P.C. Perusal

of the statements recorded u/s 342 Cr.P.C, shows that all circumstances appearing in the evidence, which are incriminating circumstances, have

not been put to the appellant for his explanation. Section 342 Cr.P.C is mandatory in nature and mandates that any circumstances appearing in the

evidence against an accused are required to be put to him, enable him to explain such circumstance.

Incriminating circumstances appearing in the evidence, thus, are required to be put to the accused in case such circumstances are to be relied

upon for recording conviction against the accused.

Circumstances appearing in the present case against the accused have not been put to him as required u/s 342 Cr.P.C. It goes without saying

that, Each and Every Circumstance, regardless of its value, which is required to be attached to it at the time of appreciation of the evidence, is

required to be put to the accused for his explanation and unless so put, such circumstance or circumstances, cannot be read against the accused.

Omission to put incriminating circumstances to the appellant/accused, does not necessarily in all cases should result in acquittal. The omission,

in appropriate cases be supplied either by questioning the accused by the appellate court itself or by remanding the matter to the trial court for

putting all the circumstances to the accused for his explanation. Severity of the punishment and facts of each case, determine the course, which may

be followed in such cases.

Heinous offences entailing punishment for imprisonment for life, death or other terms, should not suffer merely on technicalities. Omission of a

Court to follow the mandate of Section 342 of the Code of Criminal Procedure, should not result in allowing an accused to go scot-free. In short,

act of a Court should not prejudice anyone, particularly, the State, which protects the society against the onslaught of criminals.

Keeping in view the facts and circumstances of this case, I deem it proper to remand the case to the trial court to enable it to record the

statement of the appellant, u/s 342 Cr.P.C, in accordance with the law so that all incriminating circumstances appearing in the evidence are put to

appellant and an opportunity is provided to him to explain such incriminating circumstances.

I, therefore, without commenting on the merits of the case, set aside the conviction recorded and sentence imposed by the learned 2nd

Additional Sessions Judge, Jammu on the appellant.

I direct that the learned trial court shall examine the appellant/accused u/s 342 Cr.P.C in accordance with the law. Learned trial court shall put

all circumstances appearing in the evidence against the appellant so as to enable him to explain such circumstances. The trial Court shall after

affording opportunity to the accused to produce defence, if he so chooses, pass fresh orders in the case after properly appreciating the evidence

led by the prosecution and the accused in the case, in accordance with law.

In view of long pendency of the trial, the trial court will ensure that the whole exercise is concluded within a period of three months. The

appellant through his counsel is directed to appear before the trial court on 8th December, 2005.