Ramsanehi vs State of U.P.

M.C. Jain, J.—The appellant Ram Sanehi son of Khem Karan alias Nand Lal has sent this appeal from jail against his conviction passed on 16.9.2002 by Additional Sessions Judge, Court No. 8, Pilibhit in S.T. No. 328 of 2000 u/s 302 I.P.C. with sentence of life imprisonment and payment of fine of Rs. 5,000/-. In default of payment of fine, two months additional simple imprisonment has been awarded. As the appellant had no pairokar or counsel, Sri Dharmendra Singhal, Advocate was appointed amicus curiae to argue out the appeal on his behalf. We have heard him and Sri M.S. Yadav, learned A.G.A. from the side of the State. The record has been summoned which we have perused.

The incident occurred on 20.4.2000 at about 1.00 P.M. in village Amrita Khas, Police Station Bisalpur, District Pilibhit and the F.I.R. was lodged the same day at 4.00 P.M. by Bhagwan Das Gangwar, husband of the deceased. The distance of the police from the place of occurrence was about 8 kilometres. The accusation was that the accused appellant was working as a servant of the informant since about 2 1/2 months before the incident. Two days earlier to the occurrence, the informant''s wife (deceased) had scolded the accused-appellant. On the eventful day and time, the informant and his servant Ram Sanehi (accused-appellant) were irrigating the crop of Barseem by operating engine installed in the Gher. At about 1.00 P.M., Ramwati (wife of the informant-Bhagwan Das Gangwar) came in the Gher with clothes to wash them off. Ram Sanehi went inside the room and took out a Banka (meant to cut sugarcane sticks) and started assaulting Ramwati therewith. Informant raised shouts and attempted to save his wife but Ram Sanehi threatened him with Banka. The witnesses Jagannath Prasad and Ram Asarey Lal PW 2 were attracted by the shouts. The accused committed murder of Ramwati by chopping off her neck with the Banka. He was apprehended with the Banka at the spot wherewith he was taken to the police station. The informant Bhagwan Das PW 1 lodged written F.I.R. there. A case was registered by constable Chet Ram PW 3 who scribed the chick. G.D. entry was made by Head Constable Ram Das Singh PW 6 regarding the registering of the case and depositing of Banka at the police station. The investigation was done by S.I. Sobran Singh PW 5. The dead body was sealed and sent for post mortem. The post mortem over the dead body of the deceased was conducted by Dr. Bhagwan Das on 21.4.2000 at 3.00 P.M. After conclusion of the investigation, charge-sheet was submitted against the accused-appellant.

The defence was of denial. At the trial, the prosecution in all examined six witnesses. Out of them, eye-witnesses were Bhagwan Das Gangwar PW 1 and Ram Asarey Pal PW 2.

Believing the prosecution case, the trial judge convicted and sentenced the accused-appellant as stated above.

The learned amicus curiae has raised a short point that the case needs to be remanded to the trial court as there has not been proper compliance of Section 233 of Cr.P.C. i.e. of providing opportunity to the accused to adduce evidence in his defence. He has pointed out, and rightly, that after conclusion of the prosecution evidence the statement of the accused was recorded by the trial court u/s 313 of Cr.P.C. on 9.9.2002. Question No. 15 put to him was as to whether he wanted to give evidence in defence. He answered in affirmative �th gkW�- The perusal of the ordersheet of the trial court, however, shows that after recording said statement of the accused u/s 313 of Cr.P.C. on 9.9.2002, the case was straightaway fixed for arguments on 12.9.2002. The arguments were heard on 12.9.2002 and impugned judgement was pronounced on 16.9.2002. We note from an order recorded on the order sheet of the lower court dated 3.11.2000 that one Sri Alok Chand Agrawal, advocate had been appointed as amicus curiae for the accused who defended him.

It is, thus, obvious that despite the accused having stated in his statement u/s 313 of Cr.P.C. that he wanted to give evidence in defence, no opportunity was afforded to him in this behalf. The trial judge acted illegally and carelessly in not affording such opportunity to him. On account of this legal difficulty, the appeal cannot be heard and decided on merits. Needless to say, meaningful and effective opportunity to adduce evidence in his defence must be extended to the accused. It was all the more necessary in the present case because in his statement u/s 313 of Cr.P.C. the accused had signified that he wanted to given evidence in his defence. Section 233 of Cr.P.C. embodies an important principle recognized in trials that no man shall be condemned in his defence without hearing him. The Presiding Officer of the lower court did not comply with Section 233 of Cr.P.C. Therefore, agreeing with learned amicus curiae, we set aside the conviction and sentence passed against accused appellant as ordered below:

(1) We allow this appeal and set aside the impugned judgement of conviction and sentence passed against the accused-appellant Ram Sanehi. The case is remanded back to the trial court for giving an opportunity to him to adduce evidence in defence in terms of Section 233 of Cr.P.C. The findings on fact made by the court below are set aside. It would be open to the trial judge to draw appropriate inferences from the evidence on record, unfettered by any finding entered in the impugned judgement dated 16.9.2002. We also make it clear that we have not expressed anything on the merits of the case. The trial judge will address himself to all the relevant aspects and come to appropriate conclusion.

(2) The remand shall be confined to affording opportunity to the accused-appellant to adduce evidence in defence and then proceeding ahead.

(3) The retrial confined to this condition shall be concluded by the trial court within two months from the date of receipt of a copy of this order and record of the case which shall be transmitted by the office of this Court within a week to facilitate the proceedings before the trial court in the manner indicated above.

(4) The accused-appellant shall continue to be in jail during retrial as ordered above.

(5) The office shall locate the present posting of the Presiding Officer of the lower court (Sri C.L. Verma) and shall cause to be laid a copy of this order before his Hon''ble Administrative Judge for suitable action against him on administrative side for ignoring the salient legal provision of not affording opportunity to the accused to adduce evidence in his defence and for being utterly negligent in the discharge of his judicial duties. It be done within a fortnight.

(6) Sri Dharmendra Singhal, amicus curiae, who argued out the appeal on behalf of the accused-appellant Ram Sanehi, shall get Rs. 1,000/- as his fee.