Bimal Sardar vs State of West Bengal

Ashim Kumar Roy, J.—In connection with a Sessions Trial held before the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnagar, the appellant Bimal Sardar @ Battery was convicted for committing the offence punishable under section 302 IPC, he was sentenced to death and to pay fine with default clause. In the same trial he was also convicted and punished for committing the offence punishable under section 376(2)(I) IPC and under section 201 IPC and thereunder sentenced to suffer imprisonment for life and rigorous imprisonment for 7 years respectively and to pay fine with default clause.

While the appellant in a statutory appeal, challenged the order of conviction and sentence, the learned trial court, submitted the Death Reference before this court seeking confirmation of sentence of death. Both the appeal as well as the Death Reference were taken up for hearing together.

This is a case where there was no eyewitness to the crime, in other words, no direct evidence and the case of the prosecution is based on circumstantial evidence.

It is found from the records that during the examination of the appellant under section 313 CrPC, although several alleged incriminating circumstances appearing in the evidence against him and relied upon by the trial court to conclude his guilt, were put to him but one very vital circumstance that is the opinion of the Autopsy Surgeon PW/11, Dr. Ajit Biswas that the death of the victim was due to asphyxia resulting from manual throttling, which was ante-mortem and homicidal in nature was excluded. We further find, this witness (PW/11) was cross-examined at length by the defence and during such cross-examination his evidence that the victim was killed by manual strangulation was challenged from various angles. The trend of cross-examination of this witness clearly indicates that the prosecution case that before her death the victim was sexually violated was also challenged. The trial court examined Dr. Sudhansu Sekhar Jana as a court witness and his evidence was also relied upon, however, no question as regards to the incriminating circumstance available from his evidence was put to the accused in his examination under section 313 CrPC. It appears from the order passed on February 17, 2011 by the Trial Court, the said court witness was examined and after his examination-in-chief, the evidence was closed but nothing reflects therefrom that before closure of the evidence the appellant was given any opportunity to cross-examine the said witness.

Although the counsel for the appellant in his submission has never highlighted these infirmities but when the same was noticed by this court, the learned Public Prosecutor very fairly conceded that due to this lapse on the part of the trial court in non-referring the aforesaid circumstance to the appellant in his examination under section 313 CrPC, the trial court was not legally justified to act thereupon to record his conviction. He submitted that this case be remanded back to the trial court for re-trial from the stage of examination of the accused under section 313 CrPC.

Heard the learned Counsel appearing on behalf of the appellant as well as also the learned Public Prosecutor and considered their respective submissions.

It needs no debate that the provisions of section 313 CrPC is mandatory, so far that relates to examination of an accused as regards to the incriminating circumstances appearing in the evidence against him, before relying on such circumstance to conclude his guilt. Of course, no interference is called for, unless such omission causes a prejudice to the accused and resulted in miscarriage of justice. In the case at hand, we have already found that the case of the prosecution that the victim suffered a homicidal death due to manual strangulation was vigorously challenged by the defence during the cross-examination of the post-mortem doctor PW/11, the witness who testified as to the same. The further case of the prosecution that before she was killed the victim was violated sexually was also challenged as it evident from the trend of the cross-examination of PW/11 and other witnesses. Now, in our considered opinion, due to the aforesaid omissions the accused has suffered a serious prejudice and consequently findings of his guilt, relying on such circumstances by the trial court cannot be legally sustained. The three-Judges Bench of the Hon''ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 : (1984) CriLJ 1738 : (1984) 2 SCALE 445 : (1984) 4 SCC 116 : (1985) 1 SCR 88 taking into consideration all the previous judgments of the Apex Court fortified the view when an incriminating circumstance against the appellant appearing on evidence is not put to him, the same has to be excluded. The said view still hold good the field. Besides above, we further find that the decision of the trial court has clearly vitiated when the learned Judge without giving any opportunity to the appellant to cross-examine the court witness Dr. Sudhansu Sekhar Jana which is evident from the records, relied on the evidence of such witness to record his conviction. The right to cross-examination is an integral part of a fair trial and denial of the same leads to failure of justice.

We have no language to deprecate the approach of the trial court. This fundamental geometry of criminal jurisprudence is expected to be known by every judicial officer entrusted with the responsibility of holding criminal trial and more particularly by a Judge holding a sessions trial and ignorance is of no excuse.

We are, however, of the opinion due to the above lapses of the court, the appellant is not entitled to an order of acquittal but deserves to be re-tried. We are of the further opinion if after giving the accused an opportunity to cross-examine the court witness, Dr. Sudhansu Sekhar Jana, he is examined under section 313 CrPC afresh and then the question of his guilt is gone into that would sub-serve the ends of justice. Accordingly, we rejected the Death Reference and also set aside the order of conviction and sentence passed against the appellant.

This case is now remitted back to the trial court for retrial from the stage of cross-examination of Dr. Sudhansu Sekhar Jana, the court witness.

As a matter of abundant caution it is to be noted the trial court must not be proceeded to examine the appellant under section 313 CrPC, without first giving him an opportunity to cross-examine the court witness Dr. Sudhansu Sekhar Jana.

The entire exercise must be completed by the trial court within 4 weeks from the date of communication of this order. The trial must be proceeded strictly in terms of section 309 CrPC and on day-to-day basis.

After delivery of the judgment on behalf of the appellant, a prayer for suspension of sentence and his release from custody is made. Such prayer is considered and rejected.

This judgment must not be construed as our opinion to the question of validity of the conviction and the sentence. We make it clear that we have not gone into the merits of the same but having regard to the infirmities as aforesaid, namely, non-examination of the appellant with reference to the incriminating circumstances appearing from the evidence and denying the opportunity to cross-examine the court witness No. 2, Dr. Sudhansu Sekhar Jana, the order of conviction and sentence was set aside and the matter has been remitted back to the trial court for re-trial from the stage mentioned herein above. The learned trial Judge shall have the full liberty to decide the question of the guilt or innocence of the appellant and if convicted, to impose such sentence as is permissible in law.

Office is directed to immediately communicate this order to the court below and to send down the Lower Court Records.

Urgent xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making such application.

Ishan Chandra Das, J.

I agree.