Bombay High Court
The State Of Mah. Thr. Pso Ps ... vs Sagar Vishwanath Borkar And ... on 5 August, 2021
Bench: V.M. Deshpande, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL CONFIRMATION CASE NO. 01 OF 2020
State of Mah. thru. P.S.O., P.S., Chikhli, Tq. Chikhli, Dist Buldhana
VERSUS
Sagar Vishwanath Borkar and another
with
CRIMINAL APPEAL NO. 370 OF 2020
Nikhil S/o Shivaji Golait
VERSUS
State of Mah. thru. P.S.O., P.S., Chikhli, Tq. Chikhli, Dist Buldhana
with
CRIMINAL APPEAL NO. 423 OF 2020
Sagar Vishwanath Borkar
VERSUS
State of Mah. thru. P.S.O., P.S., Chikhli, Tq. Chikhli, Dist Buldhana
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. S. S. Doifode, Addl. Public Prosecutor for the State in all the cases
Mr. R. M. Daga and Ms. F.N.Haidari, Advocates for accused-Nikhil Golait
Mr. A. A. Dhawas, Advocate for accused Sagar V. Borkar.
CORAM : V. M. DESHPANDE and
AMIT B. BORKAR, JJ.
DATE : AUGUST 05, 2021.
1. This Court is hearing these proceedings on day to
day basis from 26.07.2021. Shri R. M. Daga, learned
counsel for original accused no.2 Nikhil Shivaji Golait has
argued the matter extensively. Shri A.A. Dhawas, learned
counsel for original accused no.1 Sagar Vishwanath
Borkar has adopted most of the arguments of Shri R.M.
Daga, Advocate and in addition to that he has
supplemented the arguments of Shri Daga, Advocate.
2. During the course of their submissions, they raised
various contentions. One of the contentions was that
certain evidence, which according to the prosecution, was
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incriminating against the accused persons, was brought on
record during the trial. They submitted that such
incriminating piece of evidence was used against the
accused by the learned Judge, who conducted the trial,
while convicting and imposing punishment on them,
however, it is their submission that specifically those
circumstances were not put to the accused persons when
both of them were examined during the trial by the
learned Judge under Section 313 of the Code of Criminal
Procedure and the Court did not offer them an
opportunity to offer their explanation on the same. For
that, the learned counsel invited our attention to the 313
statements of both the accused. Statement of original
accused no.1 Sagar Vishwanath Borkar is at Exh.130,
whereas the statement of original accused no.2 Nikhil
Shivaji Golait is at Exh.131 in the record of the trial.
From reading of the questions put to the accused persons,
the learned counsel pointed out that though two questions
were put to them, they are most general in nature in
respect of the incriminating material against them.
3. Shri S.S. Doifode, learned Additional Public
Prosecutor for the State also fairly states that specific
questions were not put to the accused persons while
examining them under Section 313 of the Code of
Criminal Procedure.
4. The question whether at appellate stage,
incriminating material can be brought to the notice of the
convicts in order to give them an opportunity to offer their
explanation, is not at all in res integra in view of the
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authoritative pronouncement of the Hon'ble Apex Court
in Nar Singh .vs. State of Haryana, reported in (2015) 1
SCC 496 and more specifically it is settled in paragraph 23
of the said judgment. Paragraph 23 from the said report is
reproduced herein below :
"23. When such objection as to omission to
put the question under Section 313 CrPC is
raised by the accused in the appellate court
and prejudice is also shown to have been
caused to the accused, then what are the
courses available to the appellate Court ?
The appellate court may examine the
convict or call upon the counsel for the
accused to show that what explanation the
accused has as regards the circumstances
established against him but not put to him
under Section 313 CrPC and the said
answer can be taken into consideration."
5. Right from 26.07.2021, both the accused were
produced before this Court by the police authorities from
Central Prison, Nagpur and they were present in the Court
hall on all the dates from morning till the Court time is
over. In view of the law laid down by the Hon'ble Apex
Court in Nar Singh's case (supra), we propose to examine
both the accused under Section 313 Cr.P.C. by recording
their further statement in order to give them an
opportunity to offer explanation, if they wish, to the
incriminating evidence used against them in trial. Their
statements will be recorded today in the Afternoon
session.
LATERON
6. In pursuance to the order passed in morning session
today, both the respondents/convicts were further
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examined by this Court under Section 313 of the Code of
Criminal Procedure, separately in the afternoon session.
The questions and answers were explained to them in
vernacular (Marathi) and before putting questions to
them, an understanding was given to them that it is not
compulsory on them to answer the questions in a
particular fashion or manner.
7. After recording the further statements of the
respondents/convicts under Section 313 of Cr. P.C. in
presence of their respective Advocates, their signatures
were obtained on vernacular statement. Those statements
are made part and parcel of these proceedings.
8. Today, Shri S.S. Doifode, learned Additional Public
Prosecutor has completed his arguments. After
completion of his arguments, Shri R.M. Daga, learned
counsel who represents accused/convict Nikhil Golait,
made elaborate reply arguments. His reply arguments
were adopted by Shri A.A. Dhawas, learned counsel who
represents another accused/convict Sagar Borkar.
9. Now, hearing of these proceedings is complete. We
are, therefore, closing these cases for judgment.
10. The police authorities are directed to take back the
respondents/convicts and lodge them in Central Prison,
Nagpur, Nagpur. The cases are closed for judgment.
JUDGE JUDGE
Diwale
