Bombay High Court
Altaf Hussain S/O Khwaja Gulam ... vs The State Of Maharashtra Through ... on 23 March, 2017
Bench: B.R. Gavai
CRI.A. 439.13 + 5.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.439 OF 2013
WITH
CRIMINAL APPEAL NO.442 OF 2013
WITH
CRIMINAL APPEAL NO.483 OF 2013
WITH
CRIMINAL APPEAL NO.502 OF 2013
WITH
CRIMINAL APPEAL NO.453 OF 2014
WITH
CRIMINAL APPEAL NO.475 OF 2016
CRIMINAL APPEAL NO.439 OF 2013
Mohan @ Mohan Baba s/o Janglu Gedam,
Age 52 years, Occupation-Worship,
R/o. Jai Bheem Chowk,
Kamptee, Nagpur.
(Presently in Central Jail, Nagpur). .. APPELLANT
.. VERSUS..
State of Maharashtra,
Through P.S.O., P.S. Kamptee,
District-Nagpur. .. RESPONDENT
WITH
CRIMINAL APPEAL NO.442 OF 2013
Altaf Hussain s/o Khwaja Gulam Abbas,
Aged about 30 years, Occupation-Driver,
R/o. Rama Nagar, Kamptee,
District-Nagpur,
(Presently in Central Prison, Nagpur).. APPELLANT
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CRI.A. 439.13 + 5.odt 2
.. VERSUS ..
State of Maharashtra,
Through PSO., P.S. Kamptee,
District - Nagpur. .. RESPONDENT
WITH
CRIMINAL APPEAL NO.483 OF 2013
1] Rajdeep s/o Mohan Gedam,
Age 26 years, Occupation-Labour,
R/o. Rama Nagar, Kamptee,
District-Nagpur.
2] Sandeep s/o Mohan Gedam,
Age 29 years, Occupation-Contractor,
R/o. Rama Nagar, Kamptee,
District-Nagpur.
3] Bhavan s/o Mohan Gedam,
Age 22 years, Occupation-Pujari,
R/o. Rama Nagar, Kamptee,
District-Nagpur.
4] Siddharth s/o Raju Dhamgaye,
Age 19 years, Occupation-Labour,
R/o. Rama Nagar, Kamptee,
District-Nagpur.
Appeal filed 5] Swapnil s/o Raju Godbole,
on his behalf is
withdrawn Age 29 years, Occupation-Labour,
since separate R/o. Jaibhim Chowk, Kamptee,
appeal is filed
vide order District-Nagpur. .. APPELLANTS
dated 3.3.2017
.. VERSUS ..
State of Maharashtra,
Through P.S.O., P.S. Kamptee,
District-Nagpur. .. RESPONDENT
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CRI.A. 439.13 + 5.odt 3
WITH
CRIMINAL APPEAL NO.502 OF 2013
1] Pawan s/o Mohan Gedam,
Aged about 21 years,
Occupation-Catering.
2] Sudhir s/o Mohan Gedam,
Aged about 30 years,
Occupation-Mistri,
R/o. Ramabai Nagar, Kamptee,
District-Nagpur.
PSO., P.S. Kamptee,
District-Nagpur.
(Now in Jail). .. APPELLANTS
.. VERSUS ..
State of Maharashtra,
Through P.S.O., P.S. Kamptee,
District-Nagpur. .. RESPONDENT
WITH
CRIMINAL APPEAL NO.453 OF 2014
Swapnil s/o Raju Godbole,
Aged about 20 years,
Occupation-Labour,
R/o. Jaibhim Chouwk, Kamptee,
District-Nagpur. .. APPELLANT
.. VERSUS ..
State of Maharashtra,
Through Police Station, Kamptee,
District-Nagpur. .. RESPONDENT
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CRI.A. 439.13 + 5.odt 4
WITH
CRIMINAL APPEAL NO.475 OF 2016
Sandip @ Bunty s/o Ashok Dhamgaye,
Aged about 28 years, Occupation-Mason,
R/o. Rama Nagar, Kamptee,
Nagpur. .. APPELLANT
.. VERSUS ..
State of Maharashtra,
Through PSO Kamptee,
Nagpur. .. RESPONDENT
..........
Shri C.H. Jaltare, Advocate for Appellant in Criminal
Appeal No.439/2013,
Shri H.P. Lingayat, Advocate for Appellant in Criminal
Appeal No.442/2013,
Shri S.P. Gadling, Advocate for Appellants in Criminal
Appeal No.483/2013,
Shri R.B. Gaikwad, Advocate for Appellants in Criminal
Appeal No.502/2013,
Shri Y.B. Mandpe, Advocate for Appellant in Criminal
Appeal No.453/2014,
Shri A.C. Jaltare, Advocate for Appellant in Criminal
Appeal No.475/2016,
Shri R.S. Nayak, Additional Public Prosecutor for
Respondent-State along with Shri Abdul Subhan,
Advocate assisting the prosecution in all appeals.
..........
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CRI.A. 439.13 + 5.odt 5
CORAM : B.R. GAVAI AND
KUM. INDIRA JAIN, JJ.
DATE OF RESERVING THE JUDGMENT : 03.03.2017.
DATE OF PRONOUNCING THE JUDGMENT : 23.03.2017.
JUDGMENT : (Per : KUM. INDIRA JAIN, J.)
These appeals are preferred by appellants-accused
against the judgment and order dated 25.7.2013 passed by
the learned Additional Sessions Judge-13, Nagpur in
Sessions Trial No.198/2011. By the said judgment and
order, learned Additional Sessions Judge convicted the
appellants for the offences punishable under Sections 147
read with 149, 148 read with 149, 302 read with 149 of the
Indian Penal Code and Section 4 read with Section 25 of the
Indian Arms Act and sentenced each of the accused as
under :
Sr. Conviction under Punishments
Nos. sections
1. 147 r/w 149, IPC Rigorous imprisonment for 2
years and fine of Rs.1000/-
each in-default Simple
Imprisonment for 3 months.
2. 148 r/w 149, IPC Rigorous imprisonment for 3
years and fine of Rs.1000/-
each in-default Simple
Imprisonment for 6 months.
3. 302 r/w 149, IPC Imprisonment for life and fine of
Rs.3000/- in-default Simple
Imprisonment for 6 months
4. 4 r/w 25 of the Rigorous Imprisonment for 3
Indian Arms Act. years and fine of Rs.1000/- in-
default Simple Imprisonment
for 6 months.
Learned Additional Sessions Judge directed that all the
sentences of imprisonment shall run concurrently.
2] For the sake of convenience, we shall refer the
appellants in their original status as accused nos.1 to 10 as
they were referred before the trial court.
3] Prosecution case which emerges from chargesheet
and connecting papers thereto may be stated in brief as
under :
(a) Accused nos.1 to 8 were residing in Rama
Nagar, Kamptee. Accused no.9 was resident of Jaibhim
Chowk, Kamptee. Accused no.1 Mohan Gedam is father of
accused nos.2 to 6, whereas accused nos.7 to 9 are friends
of accused nos.2 to 6.
(b) Victim Chotu @ Akash Gopal Singh Yadao
was resident of Yadao Nagar, Gavli Pura, Kamptee. He was
aged about 24 years and dealing in business of Dairy Milk.
Chotu had owned cattle and used to take the cattle to his
field for grazing through the road in Rama Nagar, Kamptee.
(c) It is the case of prosecution that many
times, accused asked Chotu not to take cattle through the
road in Rama Nagar, as the same was causing disturbance
to them and their family members. Chotu did not pay heed
to it and he continued taking his cattle through the road in
Rama Nagar, Kamptee.
(d) On 27.1.2011, Chotu had taken his cattle
for grazing. He was asked by the accused not to take the
cattle by the said road. At around 4-4.30 pm, Chotu was
returning home from his field. Again accused scolded him
saying that it was their area. Chotu did not listen and took
his cattle to his house. He informed his brother Rohit about
the same.
(e) On the same day in the evening, Chotu at
the time of milking the cattle, noticed that two buffaloes
were less. He went by the said road in search of two
buffaloes. He could find two buffaloes and while returning
through the same road towards his house, at about 7-7.30
pm near statute of Ramabai, accused obstructed Chotu and
uttered "Que Re Ek Bar Bolne Ke Bad Samazme Nahi Aya
Kya". That time, accused Mohan, his sons and friends of his
sons started assaulting Chotu by means of deadly weapons
in their hands. Chotu sustained multiple grievous injuries on
his face, neck, hand and head. After assault, accused fled
away from the spot along with the weapons.
(f) On hearing shouts, people gathered
there. Family members of victim were informed. They also
rushed to the spot. Chotu was then shifted to hospital of Dr.
Ratan Roy at Kamptee, who gave him some treatment and
later declared Chotu as dead. Dr. Roy sent intimation to
Police Station, Kamptee. In the meanwhile, Rohit informed
about the incident to his cousin Abhishek, who in turn,
lodged report with Police Station on the same day at 9.30
pm. PSI Mangesh Andhare (PW-17) was on duty. He
recorded F.I.R. and registered Crime No.20/2011.
(g) PSI Andhare visited the hospital and
recorded inquest panchanama on the dead body. The dead
body was sent for postmortem. Dr. Subhash Titre (PW-14)
was Medical Officer on duty. He performed postmortem and
noticed the following external injuries on the dead body.
1. Superficial abrasion over the forehead of
size 5 cm. in length.
2. Deep stab incised wound/injury over
occipital region of size 11 cm. x 1.5 cm. x 1.5
cm. deep, injury with sharp margin, extent to
fronto temporal region to occipital region of
scalp with fracture of same size and same site
vertically placed.
3. Deep stab incised injury over left side
temporal region of scalp of size 3 cm. x 1 cm.
with sharp margin obliquely placed.
4. Deep stab incised wound present over left
parietal region of scalp of size 4 cm. x 2 cm.
(sharp margins) obliquely placed.
5. Deep stab incised injury over left side of
right and left occipital parietal region of scalp
of size 7 cm. x 2 cm. each with sharp margin,
with fracture at same site of size 2 cm. x 2 cm.
each, bilaterally and obliquely placed.
6. Stab incised wound over forehead, right
side of size each 3 cm. x 2 cm. x 0.5 cm. with
sharp margin horizontally placed.
7. Deep stab incised wound over both side of
eyebrow, horizontally placed with sharp margin
of size 11 cm. x 1 cm. x 1.5 cm. Deep.
8. Deep stab incised wound over nose
horizontally placed with sharp margin of size
10 cm. x 2 cm. x 2 cm. deep.
9. Deep stab incised wound over the upper
lip horizontally placed, sharp margin of size 10
cm. x 1.5 cm. x 1.5 cm. deep.
10. Deep lacerated wound over right and left
index finger and middle finger of size 2 cm. x 1
cm. deep.
11. Deep stab incised wound present anterior
aspect of mandible (chin), obliquely placed,
sharp margin of size 14 cm. x 2 cm. deep.
12. Deep stab incised wound over right chick
obliquely placed with sharp margin of size 5
cm. x 3 cm. x 1.5 cm. deep.
13. Superficial multiple contusion over back.
Buttock right forearm back, right shoulder,
right shoulder joint and left knee joint.
The Medical Officer also found the following
internal injuries :
1. Under scalp haemorrhage (haematoma)
present over occipital region of scalp of size 10
cm x 5 cm.
2. Multiple fracture base and vault of skull
i.e. Right temporal region of size 2 x 1 cm. left
temporal 2 cm. x 2 cm. occipital region of size
3 cm. x 1 cm. vertically placed.
3. Intra cerebral haemorrhage and brain
tissue congested.
4. (i) Right pleura ruptured with oozing of
blood and left pleura congested.
(ii) Right lung found ruptured and with
multiple deep laceration of upper lobe with
oozing of blood with haematoma of size 4 cm.
x 4 cm.
All the injuries were ante mortem. Doctor
opined cause of death due to multiple deep
stab incised injuries over the scalp, face with
head injury with intra cerebral haemorrhage
with severe haemorrhage with hypovolumic
shock with cardio respiratory arrest.
(h) On 27.1.2011, PI Suresh Bhoyar (PW-20)
visited the spot of incident. As there was no sufficient light,
spot panchanama could not be prepared on that day. Police
officials were deputed on the spot to ensure that factual
position of the place of occurrence is not altered. PI Bhoyar
recorded statement of complainant in the night of 27-
28/01/2011.
(i) On 28.1.2011, he prepared spot
panchanama in the presence of panch witnesses. From the
spot, simple earth, earth mixed with blood were seized.
Some of the accused were arrested on 28.1.2011. Accused
Rajdeep Gedam was having injuries on his person. He was
sent for medical examination.
(j) On 28.1.2011, P.C. Imran, who had taken
the dead body for postmortem, brought the clothes of
deceased and produced before the Investigating Officer.
Those clothes were seized under a seizure panchanama
drawn in presence of panch witnesses. Statements of
several other witnesses were recorded.
(k) On 30.1.2011, other accused, except
accused no.10 Sandip @ Bunty, who was absconding, were
arrested. Their clothes were seized and separate seizure
panchanamas were accordingly recorded. The blood
samples of the accused were collected.
(l) Accused no.4 Pawan was in police
custody. On 3.2.2011, he made a memorandum in the
presence of panch witnesses to discover a sword concealed
in his house and showed his readiness to produce the same.
At the instance of accused no.4, sword was recovered from
his house which was kept beneath diwan (cot) in his house.
Discovery panchanama of sword was drawn before panch
witnesses.
(m) On the same day, accused no.5 Sudhir
gave a statement to discover Farsa concealed near the
temple of his house. His memorandum was drawn and
Farsa concealed in the temple premises on the back side of
his house was recovered in pursuance to information given
by accused Sudhir. Recovery panchanama of Farsa was
recorded.
(n) On 3.2.2011 itself, accused no.6
Bhagwan gave a memorandum statement to discover a
sword concealed in the office of his father. Memorandum
statement was recorded. Accused no.6 Bhagwan discovered
a sword as per his memorandum statement and discovery
panchanama of the same was drawn.
(o) On 4.2.2011, accused no.7 Siddharth had
shown his readiness to produce a sword concealed in his
house. His memorandum was drawn and sword was
recovered at his instance under a discovery panchanama.
(p) On that day, accused no.9 Swapnil also
gave a statement to discover a stick concealed by him.
Statement of accused no.9 Swapnil was recorded and at his
instance, stick found hanging in the corner of third room of
his house was recovered.
(q) The seized weapons were referred to
Medical Officer for examination and reports of examination
of weapons were collected by the Investigating Officer.
Seized articles were sent to Forensic Science Laboratory.
On completing investigation, charge sheet was submitted to
the Court of the Judicial Magistrate, First Class, Kamptee,
who in his own turn, committed the case for trial to the
Court of Sessions.
4] On committal, trial court framed charge against
accused nos. 1 to 9, vide Exh.42. They pleaded not guilty
and claimed to be tried. Their defence was of total denial
and false implication. According to the accused, false and
frivolous report came to be lodged against them due to
previous enmity. Accused nos.4 and 5 also raised the
defence of right of private defence and submitted that
deceased used to take cattle through Ramabai Nagar road
which was not a public road. Since it was causing
disturbance to them, they and their family members used to
ask the deceased not to take cattle through the said road. It
is their defence that deceased was an aggressor as he was
taking the cattle from the road from which he was not
entitled and thereby himself invited the occurrence of
incident. It is contended that deceased was responsible for
the occurrence and not the accused.
5] In support of its case, prosecution examined in all
20 witnesses. Accused nos.6 and 7 examined DW-1
Prabhakar Sirsat in support of their defence that location of
spot was such which would make it clear that for all the
eyewitnesses it was not possible to see the spot of incident
and all eyewitnesses are the got up witnesses. Accused
no.3 Sandip Gedam examined himself to substantiate his
plea of alibi which he raised as his defence and denied the
presence at the time of incident.
6] Considering the evidence adduced by the parties,
learned Additional Sessions Judge convicted and sentenced
the appellants-accused nos.1 to 9, as stated in paragraph 1
above.
7] Accused No.10-Sandip @ Bunty s/o Ashok
Dhamgaye was absconding. It appears that trial against him
was separated. Trial Court directed to file supplementary
chargesheet against absconding accused Sandip whenever
he traced out. After the judgment and order of conviction
and sentence was passed against accused nos.1 to 9 on
25.7.2013 by the learned Additional Sessions Judge-13,
Nagpur, absconding accused no.10-Sandip was arrested on
9.10.2013. As directed, charge-sheet was filed against him
and the case was committed to the Court of Sessions.
Sessions Case No.484/2013 was registered against
absconding accused. Charge came to be framed against
him. He pleaded not guilty and claimed to be tried vide his
plea separately recorded at Exh.8. His defence was of total
denial and false implication.
8] To substantiate the guilt of accused Sandip,
prosecution examined 12 witnesses. Accused did not
examine himself or other witness in support of his defence.
On going through the evidence of prosecution witnesses,
trial court convicted and sentenced accused no.10, as stated
herein-above. Being aggrieved thereof, appellants have
preferred these appeals.
9] We have heard at length the learned counsel for
appellants and learned Additional Public Prosecutor for
respondent-State.
10] At the threshold, we propose to consider the
appeals in view of a crucial question raised regarding non-
compliance of the provisions of Section 313 of the Code of
Criminal Procedure. In this connection, submission of
appellants is that in a joint trial, Sessions Court did not
examine each accused separately and individually and a
joint common questionnaire containing eighty questions for
all the accused, without bothering to refer even name, age,
occupation and address of each accused was prepared. It is
submitted that role attributed to each of the accused is
individual, ocular evidence adduced by the prosecution
indicates separate role to each of the accused and in such a
situation, failure to follow the mandatory provisions of law
which contemplates that accused must have ample
opportunities of explaining circumstances occurring against
him would vitiate the trial and accused would be entitled to
acquittal. It is pointed out that a bare look at the statement
under Section 313 of the Code of Criminal Procedure would
show total non-application of mind in a serious case of
murder and various questions, though not relevant, were
asked to the accused thereby creating unnecessary
confusion and causing great prejudice to them.
11] On applicability and scope of Section 313 of the
Code of Criminal Procedure, learned counsel for accused
nos.4 and 5 placed reliance on the decision of this Court in
Arvind Dayaram Choure and another .vs. State of
Maharashtra [2003 ALL MR (Cri) 45] and learned
counsel for accused nos.2, 3, 6, 7 and 9 placed reliance on
the decision of this Court in Swapnali @ Sapana Sharad
Mahadik .vs. The State of Maharashtra [2016 ALL MR
(Cri) 1824].
12] Per contra, learned Additional Public Prosecutor
Shri R.S. Nayak submitted that all incriminating
circumstances were put to the accused persons and it is not
a case of non questioning. He submits that joint common
questionnaire was prepared but all questions were not put to
all the accused and only relevant questions were asked to
each of the accused by leaving blank the answers to the
questions not put to a particular accused. Learned
Additional Public Prosecutor submitted that it is for the
accused to show that prejudice has been caused and since
accused could not show any prejudice caused to them,
it would not amount to non-compliance with the mandatory
provisions of Section 313 of the Code of Criminal Procedure
and the trial would not get vitiated. Alternatively, the
submission is that for not recording individual statement of
the accused proper course available would be to remand the
case to the trial court for re-decision from the stage of
recording of statement under Section 313 of the Code of
Criminal Procedure. In support of argument, learned
Additional Public Prosecutor placed vehement reliance on
the decisions of the Honble Apex Court in .-
(i) State of Punjab .vs. Naib Din,
[2001 CRI.L.J. 4656]
(ii) Liyakat and another .vs. State of Rajasthan,
[2014 AIR SCW 5876]
(iii) Nar Singh .vs. State of Haryana,
(2015) 1 SCC 496]
13] We have gone through the above referred
decisions. The power to examine the accused is provided in
Section 313 of the Code of Criminal Procedure, which reads
thus :
313. Power to examine the accused.- (1)
In every inquiry or trial, for the purpose of
enabling the accused personally to explain
any circumstances appearing in the evidence
against him, the Court -
(a) may at any stage, without
previously warning the accused put such
questions to him as the Court considers
necessary;
(b) shall after the witnesses for the
prosecution have been examined and before
he is called on for his defence question him
generally on the case;
Provided that in a summons-case
where the Court has dispensed with the
personal attendance of the accused, it may
also dispense with his examination under
clause (b).
(2) No oath shall be administered to
the accused when he is examined under sub-
section (1).
(3) The accused shall not render
himself liable to punishment by refusing to
answer such questions, or by giving false
answers to them.
(4) The answers given by the
accused may be taken into consideration in
such inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial
for, any other offence which such answers
may tend to show he has committed.
(5) The Court may take help of
Prosecutor and Defence Counsel in preparing
relevant questions which are to be put to the
accused and the Court may permit filing of
written statement by the accused as sufficient
compliance of this section."
14] The Hon'ble Apex Court in the case of Nar
Singh .vs. State of Haryana (supra) referring to its
earlier decisions summarised the fundamental principles
underlying Section 313 of the Code of Criminal Procedure.
The Hon'ble Apex Court in para 30 observed thus :
30. Whenever a plea of omission to put a
question to the accused on vital piece of
evidence is raised in the appellate court,
courses available to the appellate court can be
briefly summarised as under :
30.1. Whenever a plea of non-compliance
with Section 313, CrPC Is raised, it is within
the powers of the appellate court to examine
and further examine the convict or the counsel
appearing for the accused and the said
answers shall be taken into consideration for
deciding the matter. If the accused is unable
to offer the appellate court any reasonable
explanation of such circumstance, the court
may assume that the accused has no
acceptable explanation to offer.
30.2. In the facts and circumstances of the
case, if the appellate court comes to the
conclusion that no prejudice was caused or no
failure of justice was occasioned, the appellate
court will hear and decide the matter upon
merits.
30.3. If the appellate court is of the
opinion that non-compliance with the
provisions of Section 313 CrPC has occasioned
or is likely to have occasioned prejudice to the
accused, the appellate court may direct retrial
from the stage of recording the statements of
the accused from the point where the
irregularity occurred, that is, from the stage of
questioning the accused under Section 313
CrPC and the trial Judge may be directed to
examine the accused afresh and defence
witness, if any, and dispose of the matter
afresh.
30.4. The appellate court may decline to
remit the matter to the trial court for retrial on
account of long time already spent in the trial
of the case and the period of sentence already
undergone by the convict and in the facts and
circumstances of the case, may decide the
appeal on its own merits, keeping in view the
prejudice caused to the accused.
15] In the case on hand, Sessions Trial was against
ten accused persons. We have meticulously examined the
statements of accused persons recorded by the Trial Court
under Section 313 of Cr.P.C. Except in Criminal Appeal
No.475/2016, we could notice that 80 identical questions
were drawn and a joint questionnaire was prepared by the
learned Additional Sessions Judge, though entirely different
incriminating circumstances against each of the accused
were brought on record. It is pertinent to note that role
played by each accused, even according to the prosecution,
is different and individual. Therefore, there was no meaning
in preparing a joint questionnaire containing eighty identical
questions. We have noticed that the learned Additional
Sessions Judge even did not bother to mention the name
and preliminary details of each of the accused in the
statements recorded under Section 313 of Cr.P.C. Only on
the basis of signature of accused, we could know at least
about the name.
16] In the facts and circumstances of the case, it was
obligatory on the trial court to put specific, distinct and
separate questions to each of the accused as per the
incriminating circumstances brought against him
individually. In our view, preparing a common questionnaire
for all accused persons in a joint trial without bothering to
even consider, whether any question relates to any
particular accused, would render the examination under
Section 313 of Cr.P.C. deceptive and improper. Not only this,
the entire exercise by the trial Court in recording statements
of accused persons under Section 313 of Cr.P.C. clearly
demonstrates that serious prejudice has occasioned to the
accused as statements were recorded in the total disregard
of the provisions of Section 313 of Cr.P.C. This provision is
based on the fundamental principle of fairness and it is not
an empty formality. The court is under a legal obligation to
put the incriminating circumstances to the accused and
solicit his response.
17] So far as case against absconding accused Bunty
is concerned, we have gone through statement of the
accused recorded under Section 313 of Cr.P.C. It can be
seen from the statement at Exh.34 that instead of
specifically putting the incriminating circumstances, the Trial
Court has reproduced the evidence of witnesses in verbatim
thereby creating unnecessary confusion. It further appears
that the Trial Court has also relied upon the evidence of
Investigating Officer PW-12 Suresh Bhoyar, but did not put
all the questions including question of seizure panchanama
(Exh.27) showing that earth mixed with blood and simple
earth came to be seized from the spot. This would indicate
that the statement of the accused whose trial was separated
was also not drawn with due application of mind.
18] Needless to state that every error or omission in
compliance with the provisions of Section 313 does not
necessarily vitiate the trial. Such errors fall within the
category of curable irregularities and question, whether trial
is vitiated in each case, depends upon the degree of error
and whether prejudice has been or is likely to have been
caused to the accused. The ultimate test in determining
whether or not the accused has been fairly examined under
this Section is to see whether, having regard to the
questions put to him, he did not get an opportunity to say
what he wanted to say in respect of the prosecution case
against him. Where the non-compliance with Section 313
holds the trial to be vitiated, ordinarily the proper course is
to order a retrial from the stage at which the provisions of
this section were not complied with.
19] In the above premise, we are of the view that
accused are not entitled to acquittal on the ground of non-
compliance with the mandatory provisions of Section 313 of
Cr.P.C. We agree to some extent that appellants are
prejudiced on account of a joint questionnaire put to each of
them just by copy paste. The trial court should have been
more careful in framing the questions considering the
incriminating circumstances brought on record against each
of the accused. Since the Trial court has failed in it's
imperative duty, we find it fit to direct the retrial from the
stage of recording statements of the accused under Section
313 of Cr.P.C. and proceed to pass the following order :
(i) Conviction of appellants under Sections 147 r/w
149, 148 r/w 149 and 302 r/w 149 of the Indian Penal Code
and Sections 4 r/w 25 of the Indian Arms Act and sentenced
imposed on them is set aside.
(ii) Matters are remanded back to the trial Court for
proceeding afresh from the stage of recording statements of
the accused under Section 313 of the Code of Criminal
Procedure.
(iii) The Trial court shall examine each of the accused
afresh under Section 313 of the Code of Criminal Procedure
in the light of the above observations and in accordance
with the law.
(iv) The Trial court is directed to put specific, distinct
and separate questions with regard to incriminating
circumstance appearing against each of the accused.
(v) Appellants are in jail since 2012. Hence, Trial court
to expedite the matter and dispose of the same in
accordance with the law preferably within a period of six
months from the date of receipt of copy of this judgment.
(vi) We make it clear that we have not expressed any
opinion on merits of the matters.
(vii) Criminal Appeals are disposed of in the above
terms.
(viii) No order as to costs.
(Kum. Indira Jain, J.) (B.R. Gavai, J.)
Gulande, PA
