Raj Bahadur vs State of U.P.

Kundan Singh, J.—This revision has been directed against the judgment and order dated 26111990 passed by Sri Gaya Prasad. 1st Additional Sessions Judge, Agra, dismissing Criminal Appeal No. 103 of 1985 affirming the conviction and sentence of six months R.I. and a fine of Rs. 1,000/, in default of payment of fine, to undergo R.I. for two months under Section 7/16 Prevention of Food Adufleration Act awarded by Sri Naresh Kumar Singh, Judicial Magistrate, 1st Class, Firozabad, District Agra in Criminal Case No. 62 of 1984.

Heard learned Counsel for the applicant and Sri Lal Vijay Singh and Sri Manphool Singh, learned Counsel for the State.

Learned Counsel for the applicant raised two question for determination in this case. Firstly., the statement of the accusedapplicant recorded under Section 313, Cr.P.C. by the Magistrate is not a statement in the eye of law; hence the trial is vitiated. In this connection, learned Counsel for the applicant brought into the notice the statement of the accusedapplicant recorded on 1921985, wherein the questions put to the accused and the reply, are quoted below:

Learned Counsel for the applicant further submitted that no specific circusmtance appearing against the applicant has been put to him under Section 313, Cr.P.C. as such the trial is vitiated.

I have given my anxious thought to the submission made on behalf of the applicant. It is true that the provisoins of Sectoin 313, Cr.P.C. requires the Court to put such question to accused, as the Court considers necessaary, for the purpose of enabling the accused pcrosnally to explain any circumstance appearing in the evidence against him and the Court is also required to put the question, after witnesses for prosecution have been examined, before he is called on for his defence. But in the instant case, no incriminating circusmtances against the applicant, appearing on the basis of the evidence adduced by the prosecution, has been put to the accused under Section 313, Cr.P.C.. Neither the material nor any specific circumstances arising out of the evidence on record has been put to the accused under Section 313, Cr.P.C.. I am not satisfied with the finding recorded by the appellate Court in this connection that the statement of the accused, after charge has been framed was recorded on 491984 wherein all the circumstances were put to the accused and those questions put to the accused before the prosecution evidence was examined will be deemed to be circusmtances under the provisions of Section 313, Cr.P.C.. In my opinion, the Magistrate was not justified in putting question to the accused under Section 313, Cr.P.C. in cryptic manner that he heard the evidence of the prosecution recorded against him and why the witnesses deposed against him. Under the provisions of Section 313 Cr.P.C., the trial Court is required to put the material and complete evidence recorded by the trial Court to the accused and the circumstances appearing on the basis of the evidence against him. Noncompliance of the provisions of Section 313, Cr.P.C. in recording the statement of the accused vitiated the trial.

Next contention of the learned Counsel for the applicant is that the applicant has examined Kartar Singh as DW1 in order to prove his defence version, but the appellate Court has not considered at all the defence evidence. The appellate Court wrongly considered the defence evidence as evidence of the prosecution as he mentioned in the judgment that the prosecution examined Yusuf Ali Khan PW1 and Kartar Singh as PW2 and the accused did not examine any witness in defence. Factually the judgment of the appellate Court in this regard is erroneous inasmuch as the prosecution examined Suresh Chandra as PW2 and not Kartar Singh. The Court below has not considered the defence evidence, rather misread the evidence on record and the jdugment of the appellate Court based on misreading of the evidence, is not sustainable in the eye of law. Moreover the appellate Court is also required in law to consider the evidence examined or produced by the accused.

In the facts and circumstances of the present case I am not inclined to remand the case to the trial Court to try the accusedapplicant afresh after a period of more than 14 years.

In view of the discussion above, the revision succeeds and is hereby allowed. The conviction and sentence awarded by the trial Court and affirmed by the appellate Court are set aside. The applicant has been taken into custody in compliance of the order of this Court dated 1891997. The applicant shall be released forthwith and the amount of fine, if any, deposited by the applicant, shall be refunded.

Certified copy of this order shall be given to the learned Counsel for the applicant within three days to follow up the action by the applicant.

Revision allowed