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Judgment
Criminal Appeal No. 776/2007 is filed by accused no. 1 against the judgement of conviction for an offence punishable u/s 307 of IPC and Criminal Appeal No. 1200/2007 is filed by the State against the judgement of acquittal of accused 2 to 4 for offences punishable under sections 323 and 304 read with 34 IPC in S.C.No. 225/2006 on the file of the Fast Track Court -V Chickballapur.
We have heard Mohamad Ather, learned Counsel for accused no. 1, Sri S.S.Haveri, learned Counsel for accused 2 to 4 and Sri N.S.Sampangiramaiah, learned HCGP for State.
Accused 1 to 4 were tried for the following charges:
Firstly, that on 10.12.2005 at about 7.30 p.m. near Aswathakatte of Mannarapura village with a common intention of you all voluntarily caused hurt to CW1 and CW2 with a help of hands and kicking with legs and thereby committed an offence punishable u/s 323 read with Section 34 IPC.
Secondly, that on the said date time and place, with a common intention of you accused no. 1 assaulted CW1 with a help of chopper on his head and caused injury and thereby committed an offence punishable u/s 324 read with Section 34 IPC.
Lastly, that on the said date time and place with a common intention of you all committed attempt to commit murder of CWI-Ramegowda and caused such bodily injuries with such intention and under such circumstances, that if by that act you had caused the death of CW1-Ramegowda you would have been guilty of murder and thereby committed an offence punishable u/s 307 read with Section 34 of IPC.
On behalf of the prosecution, P.Ws. 1 to 10 were examined and documents as per Ex. P1 to Ex. P.9a were marked. The material objects produced by the prosecution were marked as M.Os 1 to 4.
As per the evidence adduced by the prosecution, P.W.1 -Ramegowda and P.W.2 - Shankarappa were injured witnesses and they were treated by P.W.6 -Dr.Diwakar P.W.5 - Venkateshappa and P.W.7 -Venkataramanappa were eye witnesses to the incident of assault. P.W.3 - Venkatappa was the Head Constable of Chickballapur Rural Police Station, On receipt of information from Government Hospital, Chiekballapur, he visited the Hospital and recorded first information as per Ex. P. 1 and registered Crime No. 169/2005 against accused 1 to 4 for offences punishable under Sections 323, 324, 307 read with 34 IPC.
P.W.4 has given evidence in proof of the seizure of blood stained clothes of P.W.1 P.W.6 - Dr.Diwakar, Medical Officer of Government. Hospital, Chickballapur has given evidence in proof of the injuries suffered by P.W.1 and contents of wound certificate marked as Ex.P.7. P.W.8 - Subramani has given evidence in proof of motive for the accused to commit, afore stated offences. P.W.9 - Shivakumar, Sub-Inspector of Chickballapur Rural Police Station has given evidence relating to investigation of case. P.W. 10 - Thippeswamy took over the further investigation and on completion of investigation submitted charge sheet against the accused.
The learned trial Judge on appreciation of evidence of injured eye witnesses and the medical evidence convicted accused no. 1 for an offence punishable u/s 307 of IPC and sentenced him to undergo imprisonment for a period of ten years and also to pay a fine of Rs. 15,000/- in default, to undergo sentence for a period of one year. The learned trial Judge acquitted accused 2 to 4.
On consideration of statements of accused recorded u/s 313 Cr.P.C., we find that the learned Judge has failed to question accused 1 to 4 about incriminating evidence appearing against them. In order to avoid further discussion on this aspect, we reproduce the statements of the accused recorded u/s 313 Cr.P.C.
Accused: A-1 Sridhar, s/o Devaraju, 25 years, r/at Mannarpura village, Chickballapur Taluk.
STATEMENT U/S 313 Cr.P.C.
Que. 1 : P.W.1 Ramegowda, s/o Mariyappa state that on 10,12.2005 between 7.30 to 8.30 p.m. near Aswathakatte of their village you accused no. 1 assaulted him with a help of M.O. 1 hatcher on his head causing bleeding injuries. What do you say?
Que.2 : He further states that P.W.2 Shankarappa rushed to scene of offence as some one had informed him and you assaulted him with hands. What do you say?
Que.3: He further states that P.W.5 Venkateshappa, P.W.7 Venkataramanappa pacified the quarrel. What do you say ?
Que.4: He further states that P.W.5 snatched M.O.1 hatchel from your hands. What do you say?
Que.5: He further states that he lodged complaint, as per Ex.P. 1 and he took treatment, in Government Hospital in Chickbailapur and also in Nimhans and Victoria Hospital. What do you say?
Que.6: He further states that his shirt M.O.2 was blood stained during the incident. What do you say?
Que. 7 P.W.5 Venkateshappa s/o Venkatarayappa states that on the said date, time and place he after hearing galata emanating Ashwathakatte of his village rushed to the scene of offence and you accused No. 1 assaulted PW1 with a help of M.O.1 and he snatched it and retained it in his house. What do you say?
Que. 8: PW7 Venkataramanappa S/o. Ashwathappa on the said date, time and place you caused hurt to PW1 by assaulting with a help of M.O.1 on the head of PW1. What do you say?
Que. 9: Have you got any defence witness?
Que. 10: Have you got anything else to say?.
Accused: A-2 Ravi, S/o Srinivasa,
19 years, r/at Mannarapura village, Chickballapur taluk.
STATEMENT UNDER SEC. 313 OF CR.P.C
Que: 1. PW2 Shankarappa S/o Mariyappa states that, on 10.12.2005 at about 7.30 p.m. near Ashwathakatte of their village he saw you accused No. 1 assaulting PW1 his brother with a help of M.O. 1, what do you say?
Qne:2: He further states that you accused No. 2 to 4 caught hold of him and assaulted him with stick and hands and kicked with legs. What do you say?
Que:3: He further states that PW5 Venkateshappa snatched M.O.1 from the hands of accused No. 1 and he took injured in a motor bike to hospital. What do you say?
Que:4: PW7 Venkateshappa s/o Ashwathappa states that on the said date time and place you accused No. 2 to 4 had caught hold of PW2 to PW4 and assaulting each other. What do you say?
Que: 5: Have you got any defence witness?
Que:6: Have you got anything else to say?
Accused: A-3 Venkatesh S/o Chikkavenkatarayappa, 19 years, Mannarpura village. Chickballapur taluk.
STATEMENT UNDER SEC. 313 OF CR.P.C
Que: 1: PW7 Venkataramanappa s/o Ashwathappa on 10.12.2005 at about 7.30 p.m. near Ashwathakate of their village you accused No.2 to 4 had caught hold of PW2 to PW4 and assaulting each other. What do you say?
Que:2. Have you got any defence witness?
Que:3: Have you got anything else to say?
Accused: A-4 Muralidara @ Murali, S/o Devaraj, 24 years, R/at Mannarapura Village, Chickbaliapura taluk.
STATEMENT UNDER SEC. 313 OF CR.P.C
Que:1 : PW7 Venkataramanappa S/o Ashwathappa on 10.12.2005 at about 7.30 p.m. near Ashwathakate of their village you accused No. 2 to 4 had caught hold of PW2 to PW4 and assaulting each other. What do you say?
Que:2: Have you got any defence witness?
Que:3: Have you got anything else to say?
The above extraction would manifest that the learned trial Judge has treated the examination of accused u/s 313 Cr.P.C. as an empty formality without bearing in mind the significance of examination of the accused u/s 313 Cr.P.C. and also the consequences of omission to put to accused incriminating evidence appearing against them when examined u/s 313 Cr.P.C.
In a decision reported in Ashok Kumar Vs. State of Haryana, , the Supreme Court has held:-
Now we may proceed to discuss the evidence led by the prosecution in the present case. In order to bring the issues raised within a narrow compass we may refer to the statement of the accused made u/s 313, Cr.P.C. It is a settled principle of law that dual purpose is sought to be achieved when the Courts comply with the mandatory requirement of recording the statement of an accused under this provision. Firstly, every material piece of evidence which the prosecution proposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged Envolvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of the Cr.P.C. Furthermore, the statement u/s 313 of the Cr.P.C. can be used by the court in so far as it corroborates the case of the prosecution. Of course, conviction per se cannot be based upon the statement u/s 313 of the Cr.P.C.
In a decision reported in Sanatan Naskar and Another Vs. State of West Bengal, in paragraph 10, the Supreme Court has held:-
The answers by an accused u/s 313 of the Cr.P.C. are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr.P.C. is wide and is not a more formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.P.C. As already noticed, the object of recording the statement of the accused u/s 313 of the Cr.P.C. is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court, has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain...."
In a decision reported in Kanhai Mishra @ Kanhaiya Misar Vs. State of Bihar, in paragraph 17, the Supreme Court has held:-
17.......In any view of the matter, this circumstance cannot be used against the appellant as from his statement recorded u/s 313 of the Code of Criminal Procedure, it would be amply clear that this circumstance was never put to him and consequently the same cannot be used. Reference in this connection may be made to a decision of this Court in the case of Kehar Singh and Others Vs. State (Delhi Administration),
In a decision reported in State of Punjab Vs. Sawaran Singh, t paragraph 10, the Supreme Court has held:-
The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he is given full opportunity to cross-examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the Court evaluating the evidence properly, the Court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to accused bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial.
In the case on hand, we have referred to the illegalities committed by the learned trial Judge while recording the statements of accused u/s 313 Cr.P.C.
The law is fairly well settled if incriminating evidence is not put to accused, the same cannot be used to base conviction against accused. Therefore, we are of the opinion that the matter requires remand for examination of accused u/s 313 Cr.P.C., in accordance with law.
Therefore, we pass the following order:
ORDER
(i) The appeals, are accepted.
(ii) The impugned judgment is set aside. The mailer is remanded to trial court for examination of accused u/s 313 Cr.P.C. and for decision of the case on merits, in the light of the observations made herein and in accordance with law.
(iii) The learned trial Judge shall decide the case on merits, within a period of six months from the date of receipt of a copy of this judgment. Office is directed to send back records along with a copy of this judgment to the trial court, forthwith.