Sri Jagannath Sah vs State of Assam

M. Sharma, J.—This criminal revision has arisen against the appellate order and judgment dated 21-5-87 passed in CA. No. 22(S-2) of 1986 passed by the Addl. Sessions Judge, Sonitpur upholding conviction and sentence of the petitioner u/s 411, IPC by judgment dated 4-6-86 passed by the Chief Judicial Magistrate, Tezpur holding the petitioner guilty u/s 411, IPC awarding sentence to undergo RI for 3 months and to pay a fine of Rs. 1000/-, in default 1 month''s RI in CR case No. 1023/82.

Joseph Munda, one of the accused was arrested in connection with Rangapara Police Station chargesheet No. 100 dated 6-6-82. He confessed his guilt of having stolen ornaments of gold and silver from the house of one Prabhat Saikia implicating the petitioner that he sold the stolen articles to the petitioner. The said Joseph Munda led the investigating agency to the petitioner''s hosue and upon house search pieces of melted gold and silver weighing 1 tola 15 annas and 1 anna 5 rattis respecively were found in a small tin box and the same were seized. It is contended on behalf of the petitioner that there was nothing to connect the petitioner or the melted gold and silver in his possession either as an accused in the case or as articles stolen from the house of the informant except the confessional statement of the said Joseph Munda. The said Joseph Munda also absconded during the investigation who said at the time of confessing the guilt that he sold some ornaments of gold and silver to the petitioner.

The evidence of prosecution on trial was complete as back as on 13-5-85 and statement of the petitioner as accused u/s 313, Cr.P.C. was recorded immediately thereon and the case was posted for judgment after hearing submissions of both sides. But after almost about a year thereof, i.e. on 24-5-86 prosecution witness No. 4 Shri Keshab Deka, the investigating officer was brought before the court upon a warrant of arrest. He was re-examined to state that he was led by the absconding accused Joseph Munda to the house of the petitioner and that the articles seized from the house of the petitioner happened to be the articles stolen in different form and the court proceeded u/s 311, Cr.P.C. without giving any opportunity to the petitioner. The said witness No. 4 was examined. The petitioner was deprived to explain the incriminating circumstances disclosed upon the re-examination of the PW 4 and without further examining the petitioner u/s 313 Cr.P.C. the learned trial Magistrate heard argument for second time on 29-5-86 and rendered judgment on 4-6-86 convicting and sentencing the petitioner to undergo and serve sentence as aforesaid. Being aggrieved the petitioner preferred appeal before the Sessions Judge and being transferred the case to the court of learned Addl. Sessions Judge the learned Addl. Sessions Judge heard and decided the appeal upholding and affirming the conviction and sentence as aforesaid.

Heard Mr. T. C. Khetri, learned counsel for the petitioner. Also heard Mr. D Goswami, learned Public Prosecutor.

The point for consideration before this Court is whether the petitioner was prejudiced for not giving him opportunity to be examined u/s 313, CrPC in the subsequent evidence taken by the trial Court u/s 311, Cr.P.C. Mr. Khetri, learned counsel for the petitioner strenuously submits that the petitioner was highly prejudiced as under the provisions of law he is entitled to be heard u/s 313, Cr.P.C. His further submission is that PW 4 having been examined by the trial court and the incriminating circumstances and/or evidence disclosed on such re-examination having not been put to the petitioner the petitioner was deprived to explain the circumstances u/s 313, CrPC and therefore the trial is vitiated and he is entitled for acquittal.

In support of his submission the learned counsel for the petitioner referred Channu Lal and Another Vs. Rex, In this case it was held that an appeal continues till the judgment is delivered. Even though at one stage the evidence of the parties is concluded and arguments have been heard, the court before delivering judgment is entitled in the interest of justice to examine of its own motion any witness, provided, of course, the interest of the accused are not prejudiced thereby. If the court decides to take such evidence, it would be proper for the court to re-examine the accused with reference to the new evidence recorded and to give an opportunity to the accused to give such further evidence in defence as he may be advised to do. The learned counsel further referred Bihari Singh Madho Singh Vs. State of Bihar, In this ease the Apex Court held that in the cicumstances the disregard of the provisions of Section 342, CrPC (old) had resulted in grave prejudice to the accused vitiating the trial. As it appears, from the facts and circumstances of the case and the material on record when the evidence was taken u/s 311, CrPC some new circumstances has found out which implicated the petitioner and for this the petitioner was not given any opportunity to explain himself. In Hansraj v. State the High Court of Himachal Pradesh has also taken the same view. In that case their Lordships held that there is a rule of prudence which requires that before an accuse ed is convicted he should have an opportunity to make any explanation he may have with regard to the circumstances appearing in the evidence against him. According to this rule of prudence, an accused should be examined with reference to the evidence of a court witness if such evidence prejudicially affects him. The settled position of law is that examination of the accused u/s 313, CrPC is not a mere formality but it is mandatory.

From my above duscussion I find that the petitioner was deprived of the opportunity to be examined u/s 313, CrPC which is a mandatory provision and non compliance of that mandatory provision seriously prejudiced the accused petitioner. In view of that matter the impugned judgment and order dated 21-5-87 passed by the Addl. Sessipns Judge Sonitpur in CA No. 22 (S-2)/86 upholding the conviction and sentence of the petitioner passed by the Chief Judicial Magistrate, Tezpur dated 4-6-86 u/s 411, IPC is set aside. The petitioner shall be discharged of the bail. The fine, if already realised, shall be, refunded.

The revision petition is allowed.