Mahender Singh vs State of Haryana

S.S. Grewal, J.

On complaint filed by Dewan Singh present respondent under Sections 452/323/506 of the Indian Penal Code against these real brothers Mahender Singh and Mange Ram, the present petitioners, were tried and convicted under Sections 323, 452 and 506 of the Indian Penal Code, vide, order of Judicial Magistrate Ist Class, Rohtak, dated 4.2.1992, and vide order dated 5th of February, 1992 each one of them was sentenced to undergo rigorous imprisonment for one year. They were further ordered to pay a fine of Rs. 100/ each under Section 452 of the Indian Penal Code and in default of payment of fine each one of them was ordered to undergo Simple Imprisonment for one month. On appeal filed by the present petitioners against the order of conviction and sentence passed by the learned trial court, the Additional Sessions Judge, Rohtak vide order dated 15.7.1993 set aside the order of conviction and sentence passed by the learned trial court and remanded the case to the trial Court with the direction that evidence already recorded shall be read in evidence, the complainant shall be given not more than two opportunities to lead his evidence and the accused shall be examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) in accordance with law. It was further directed that after affording reasonable opportunity to the accused for leading their evidence, the trial Court shall dispose of the case expeditiously. Aggrieved against the aforesaid order of remand, the petitioners filed the present revision petition.

In brief the allegations made in the complaint are that on the evening of 28.9.1985 both the accused Mahender Singh and Mange Ram armed with Jellies forcibly entered the house of the complainant. Mahender Singh gave two Jelly blows lathiwise on the right hand and right leg of the complainant, whereas, Mange Ram gave two Jelly blows lathiwise on the left hand of the complainant. Indrawati sister and Bala wife of the complainant intervened and rescued him from the clutches of the accused. Even while running away from the spot, both the accused threatened to kill him. The dispute was over joint agriculture land of the complainant and the accused. The accused were cultivating the land more than their share. The matter was reported to the police which did not take any action. After getting himself medically examined on the next day of the occurrence, the present complaint was filed. After summoning the accused and recording the precharge evidence, charge under Section 452/323/506 read with Section 34 of the Indian Penal Code was framed against the accused by the trial Magistrate on 15.4.1991 to which they pleaded not guilty and claimed trial. The accused did not choose to crossexamine any witness and made statements that evidence led by the complainant at precharge stage may be read against them. The accused were then called upon to enter upon their defence but they did not lead any evidence in defence. The learned trial Court without examining the accused under Section 313 of the Code convicted and sentenced the petitioners as stated earlier.

The learned counsel for the parties were heard.

Section 342 (new 313) of the Code, cast a duty on the court to put, at any enquiry or trial, questions to the accused for the purpose of enabling him to explain all the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately: failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudiced the accused; if the irregularity does not, in fact, occasion a failure of justice, it is curable under Section 537 (new 465) of the code, as observed by their Lordships of the Supreme Court in S. Harnam Singh v. The State (Delhi Administration), AIR 1976 SC 2140

. 5. In the instant case, the learned trial Magistrate has gravely erred in law in not examining the accused under Section 313 of the Code. After the witnesses for the prosecution had been examined and before calling upon the accused to enter upon his defence it was bounden duty of the trial Magistrate to question the accused generally on the case to explain material circumstances appearing in evidence against them. Since the petitioners were not at all examined under Section 313 of the Code at any stage of the case before the trial court, they were not afforded any opportunity to submit an explanation concerning incriminating circumstances appearing in evidence against them, such evidence could not be legally used against them and has to be excluded from consideration in view of the authority of the apex Court in Balwant Kaur v. Union Territory Chandigarh, 1988(1) Recent Criminal Reports 60 : 1988 Supreme Court Cases (Criminal) 1 .

The present occurrence took place as far back on 28.9.1985, the petitioners underwent agony of trial for about 61/2 years and their appeal remained pending before the Additional Sessions Judge, Rohtak, for 11/3 years. The learned Additional Sessions Judge, Rohtak, was not justified in remanding the case to the trial Court which would virtually amount to allow complain to fill in the lacunas in the prosecution case. Nonexamination of the accused in view of the facts and circumstances of the present case has certainly caused grave and material prejudice to the accused which cannot be cured under Section 465 of the Code. Both the orders of the Courts below suffer from material illegality, the same are set aside and the petitioners are hereby acquitted of the charges framed against them. This petition is accordingly allowed.