Citation : 2024 Latest Caselaw 555 Patna
Judgement Date : 23 January, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.875 of 2013
Arising Out of PS. Case No.-109 Year-2007 Thana- DULHIN BAZAR District- Patna
======================================================
Fudan Singh, S/O Late Mahendra Singh, Resident of Village Lal Bhadsara,
Police Station Dulhin Bazar, District Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. S.K. Lal, Advocate
: Mr. Shivendra Kumar Sinha
For the Respondent : Ms. Shasi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 23-01-2024
This appeal has been preferred by the appellant under
Section 374(2) of the Code of Criminal Procedure, putting to
challenge a judgment of conviction dated 07.08.2013 and an
order of sentence dated 13.08.2013 passed by learned Additional
Sessions Judge - IV, Danapur, in Session Trial No. 312 of 2008
arising out of Dulhin Bazar P.S. Case No. 109 of 2007, whereby
the appellant has been convicted and sentenced as under:
Criminal Appeal (DB) No. 875 of 2023
Sentence
Appellant's Penal
Name Provision In default of
Imprisonment Fine (in Rs.)
fine
Fudan Under Section R.I. for life 10,000/- R.I. for one
302 of the year
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
2/20
IPC
Singh Under Section
27 of the R.I for three years X X
Arms Act
All the sentences have been ordered to run concurrently.
2. The son of the deceased Sanoj Kumar is the
informant, whose fardbeyan recorded by Sub-inspector of police
Basawan Ram (PW-6) on 19.10.2007 at 05:30 PM near the
informant's house, is the basis for registration of the concerned
Dulhin Bazar P.S. Case No. 109 of 2007. To allay any confusion, it
is noted, at this juncture itself, that the informant was not
examined at the trial and another witness of his namesake Sanoj
Kumar (PW-2, son of Raja Ram) deposed at the trial. PW-2 is not
the informant of the case.
3. The informant alleged that at about 5:00 PM, on the
date when the fardbeyan was recorded, the informant's father
Mohan Lal Mistri was busy cutting hay and the informant was
sitting nearby on a Chowki. At 5:15 PM, the appellant came using
abusive language against the informant's father. The appellant
wanted the deceased to bring back his (deceased's) wife. From the
contents of the FIR it appears that according to the informant, the
appellant had illicit relationship with the informant's mother (wife
of the deceased), who had gone to her mother's place. The
appellant, because of his such relationship with the wife of the
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
3/20
deceased, wanted her to be brought back. An altercation had taken
place between the deceased and the appellant. The appellant was
said to have shot at the deceased in his chest and fled away from
the place of occurrence. Accordingly, the FIR was registered
disclosing the offences punishable under Section 302 of the IPC
and Section 27 of the Arms Act against the appellant, as the sole
named accused.
4. The police upon completion of investigation
submitted charge-sheet, whereupon cognizance was taken and the
case was committed to the Court of Sessions. The appellant was
arrested in the month of April 2008. The appellant was charged of
commission of offences punishable under Section 302 of the IPC
and Section 27 of the Arms Act. As the appellant denied the
charge, he was put to trial.
5. During the trial, the prosecution examined altogether
seven witnesses, namely, Anuj Kumar Singh (PW-1), a minor son
of the deceased, who claimed at the trial to be an eyewitness;
Sanoj Kumar (PW-2, a hearsay witness), Satyanarain Mistri (PW-
3), a nephew of the deceased who claimed that after hearing the
sound of gunshot, he had seen the informant chasing the appellant
and the appellant fleeing away from the place of occurrence.
Another nephew of the deceased, namely, Pintu Kumar deposed as
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
4/20
PW-4, who is hearsay witness. Similarly, PW-5, Jai Prakash
Vishwakarma is also a hearsay witness. The Police Officer, who
had recorded the fardbeyan of the informant and had investigated
the case, deposed as PW-6, whereas the Doctor who had conducted
the postmortem of the deceased was examined at the trial as PW-7.
6. In addition to the oral evidence of the prosecution
witnesses, the prosecution brought on record following
documentary evidences to substantiate the charge against the
appellant:-
Sl. No. Details Exhibit
1. Signature on the carbon copy of Inquest Report Exhibit-1
2. Farbeyan Exhibit-2
3. FIR Exhibit-3
4. Inquest Report Exhibit-4
5. Dead body Challan Exhibit-5
6. Postmortem Report Exhibit-6
7. After appreciating the evidence adduced at the trial,
the trial court has held the appellant guilty of the charges
punishable under Section 302 of the IPC and Section 27 of the
Arms Act by the impugned judgment dated 07.08.2013 and
sentenced him to imprisonment and fine by the order of sentence
dated 13.08.2013, as noted hereinabove.
8. Mr. S.K. Lal, learned counsel appearing on behalf of
the appellant, assailing the impugned judgment and order of the
trial court, has submitted that the finding of conviction recorded by
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
5/20
the trial court is based on erroneous appreciation of evidence. He
submits that it is manifest from the First Information Report that
no person other than the informant can be said to have witnessed
the occurrence. There is no reference in fardbeyan about the
presence of PW-1, the son of the deceased, who, at the trial,
claimed to be an eyewitness. He contends that the trial court has
wrongly placed reliance on the deposition of PW-1. He submits
that whereas, according to the prosecution's case, the fardbeyan
was recorded on 19.10.2007 and the FIR was registered on the
same day but the FIR was received in the Court of learned
Magistrate on 23.10.2007. He contends that such unexplained
delay is in teeth of Section 157 of the CrPC and gives ample scope
of manipulation in the prosecution's case at the stage of
registration of FIR itself. He further contends that there has been
non-compliance of statutory requirement of Section 313 of the
CrPC. The trial court adopted a very casual approach while
questioning the appellant under the said provision by putting a
vague question to him and has taken into account such aspects in
the judgment of conviction, which were not brought to the
appellant's notice as incriminating circumstances. He has referred
to the evidence of the witnesses and has submitted that it can be
easily seen that the appellant remained undefended at the trial,
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
6/20
because of which the witnesses examined at the trial could not be
cross-examined on his behalf. He submits that failure on the part
of the Court to ensure that legal aid was provided to the appellant
in breach of Section 304 of the CrPC, has vitiated the entire trial.
He has lastly submitted that on due appreciation of the oral
evidence of the prosecution's witnesses, it can be easily seen that
the prosecution miserably failed to prove beyond reasonable
doubt, the charge of commission of offences punishable under
Section 302 of the IPC and Section 27 of the Arms Act.
9. Ms. Shashi Bala Verma, learned Additional Public
Prosecutor representing the State has submitted that the evidence
of PW-1 may not be discarded only on the ground that he is a child
witness. He is a witness to the occurrence who was found to be a
competent witness in the opinion of the trial court. She contends
that non-examination of the informant is not at all fatal to the
prosecution's case in the present facts and circumstances as the
informant's brother deposed at the trial as a witness and the oral
evidence stands fully corroborated by the medical evidence. She
has further submitted that the appellant cannot be said to have
remained unrepresented at the trial as he had engaged his counsel
to defend him and the arguments were advanced on behalf of the
defence after closure of the prosecution's evidence. She submits
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
7/20
that learned counsel for the appellant had chosen not to cross-
examine the witnesses and, therefore, it cannot be said there has
been breach of the provision under Section 304 of the CrPC. She
further contends that the appellant has not been able to make out
any case of prejudice having been caused to him because of the
alleged non-compliance of Section 313 of the CrPC. She,
accordingly, contends that the impugned judgment of conviction
suffers from no legal infirmity and does not require interference by
this Court.
10. We have perused the impugned judgment and order
of the trial court as well the trial court's records. We have given
our thoughtful consideration to the rival submissions advanced on
behalf of the parties.
11. As has been noted hereinabove, at the trial the
prosecution examined altogether seven witnesses. PW-1, aged
about 11 years deposed in his evidence recorded on 25.08.2008
that he (PW-1), his brother, Sanoj informant (not examined) and
his sister were sitting together on the chowki when the deceased
was shot at by the appellant. The evidence of PW-1 does not
appear to be in consonance with the disclosure made by the
informant in his fardbeyan inasmuch as, he did not mention in his
fardbeyan that along with him, PW-1 was also sitting on the
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
8/20
Chowki at the time of occurrence. It is also evident that PW-1 was
not cross-examined. PW-2 is the witness to the Inquest Report and
had not seen the occurrence. PW-3 claimed that he had seen the
informant chasing the appellant, who was carrying a firearm, after
having heard the gunshot. In his cross-examination, PW-3
admitted that he was deposing at the trial for the first time and his
statement was not recorded by the police during the course of
investigation. PW-4 and PW-5 are hearsay witnesses. Investigating
Officer (PW-6) could not be cross-examined at the trial because of
the appellant counsel remained unrepresented.
12. It is significant to note at this juncture that the first
prosecution's witness was examined in August 2008. Till
November 2008 three witnesses, PW-1 to PW-3 were examined. In
February 2009, PW-4 was examined, whereas PW-5 was examined
in May 2009. Nearly two and a half years thereafter on
28.09.2011
, the Investigating Officer (PW-6) and the Doctor (PW-
7) were examined. Both these witnesses could not be cross-
examined at the trial because the appellant remained unrepresented
at the trial.
13. We find force in the submission advanced on behalf
of the appellant that the trial court ought to have ensured that the
appellant was duly defended by a pleader, in compliance of Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
Section 304 of the CrPC. In the present case, we find that the trial
court did not make any endeavor to know from the appellant, as to
whether there was any requirement to assign a pleader for his
defence at the expense of the State. Such failure on the part of the
trial court, in this Court's opinion, seriously prejudiced the
appellant's case, particularly, as he did not have the opportunity to
cross-examine the Investigating Officer.
14. There is yet another glaring lacuna relating to
compliance of the provisions under Section 313 of the CrPC,
which has rightly been pointed out by the learned counsel
appearing on behalf of the appellant. To address the said aspect, it
would be appropriate to reproduce the only question, which was
put by the trial court to the appellant under Section 313 of the
CrPC, which is as under:-
"ऐसा गवाहो का कहना है कक कदनांक 19.10.2007 को आपने ग्राम लाला मदसारा मे मोहन लाल कमस्री को गोली मारकर उसकी हतया कर कदया।"
15. The near translation of the said question would read
as under:
"It is said by the witnesses that you have committed murder by shooting the deceased on 19.10.2007."
16. The significance of due compliance of the
requirement under Section 313 of the CrPC has been laid down in Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
catena of decisions of Supreme Court right from the case of Hate
Singh v. State of Madhya Bharat (AIR 1953 SC 468). Section
313 of the Code of Criminal Procedure, 1974 corresponds to
Section 342 of the Code of Criminal Procedure, 1898. In case of
Hate Singh (supra) the Supreme Court laid down, in no uncertain
terms, that any circumstance in respect of which an accused was
not examined under Section 342 of the CrPC, cannot be used
against him.
17. The said view was subsequently followed in case of
Shamu Balu Chaugule v. State of Maharashtra reported in
(1976) 1 SCC 438. The Supreme Court noted the fact that the
appellant in that case was said to be absconding, not having been
put to him under Section 342 of the CrPC, could not have been
used against him.
18. In case of Harijan Shamu Balu Chaugule v. State
of Maharashtra (AIR 1979 SC 1566) the Supreme Court observed
as under :-
"In the first place, he stated that on the personal search of the appellant a chedi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
rely on this statement in order to convict the appellant...."
19. Reiterating the aforesaid view, the Supreme Court in
its celebrated decision in case of Sharad Birdhichand Sarda v.
State of Maharashtra reported in (1984) 4 SCC 116 has
conclusively held in paragraph 145 as under :
"145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration."
20. The law relating to due compliance of Section 313 of
the CrPC has been consistently followed by the Supreme Court in
subsequent decisions. In case of Kalicharan vs. State of Uttar
Pradesh reported in (2023)2 SCC 583 the Supreme Court noted
failure on the part of the trial court to put questions under Section
313 of the CrPC statement about the postmortem of the body of
the deceased. The Supreme Court reiterated in the said case that
questioning an accused under Section 313 of the CrPC is not an
empty formality and requirement of Section 313 of the CrPC is
that an accused must be explained the circumstances appearing in Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
the evidence against him so that an accused can offer an
explanation.
21. Relying on the Supreme Court's decision in case of
Jai Dev v. State of Punjab reported in (1963) 3 SCR 489 the
Supreme Court has held in case of Kalicharan (supra) that if the
accused is not explained the important circumstances appearing
against him in the evidence on which his conviction is sought to be
passed, the accused will not be in a position to explain the said
circumstances brought on record against him.
22. In case of Premchand vs. State of Maharashtra
reported in (2023) 5 SCC 522 the Supreme Court summarized the
requirements of the provision under Section 313 of the CrPC,
considering it to be a valuable safeguard in the trial process for
accused to establish his innocence, referring to plethora of judicial
pronouncements in that regard, paragraph 15 of which reads as
under :-
"15. What follows from these authorities may briefly be summarised thus:
15.1. Section 313CrPC [clause (b) of sub-
section (1)] is a valuable safeguard in the trial process for the accused to establish his innocence.
15.2. Section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him. Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
15.3. When questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court.
15.4. The accused may even admit or own incriminating circumstances adduced against him to adopt legally recognised defences.
15.5. An accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross- examine him.
15.6. The explanations that an accused may furnish cannot be considered in isolation but have to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the Section 313 statement(s).
15.8. Statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission.
15.7. Statements of the accused in course of examination under Section 313, since not on oath, do not constitute evidence under Section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case.
15.9. If the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyse and consider his statements.
15.10. Any failure to consider the accused's explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction."
23. The Supreme Court further laid down in paragraphs
16 & 17 in case of Premchand (supra) as under :
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
"16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of Section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of Section 313 in 2009, the courts alone had to perform this task.
Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare.
17. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, Parliament amended Section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and defence counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like "false", "I don't know", "incorrect", etc. Many a time, this does more harm than good to the cause of the accused.
24. The Supreme Court, in case of Premchand (supra),
has clearly laid down that any failure to consider the accused's
explanation of incriminating circumstances in a given case, may
vitiate the trial and/ or endanger the conviction. Here is a case
where no question was put to the appellant under Section 313 of Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
the CrPC with reference to any circumstance emerging from the
prosecution's evidence adduced at the trial and a-one sentence
question was put as has been quoted hereinabove, in the name of
completing the formality of the requirement under Section 313 of
the CrPC.
25. In case of Indrakunwar vs. State of Chhattisgarh
reported in 2023 SCC OnLine SC 1364 the Supreme Court,
reiterating the law laid down earlier on the requirements of Section
313 of the CrPC has held that the Court is obligated to put, in the
form of questions, all incriminating circumstances to the accused
so as to give him an opportunity to articulate his defence. The
Supreme Court further held that non-compliance with the section
may cause prejudice to the accused and may impede the process of
arriving at a fair decision.
26. In case of Indrakunwar (supra) also the Supreme
Court reiterated the law that the circumstances not put to an
accused while rendering his statement under Section 313 CrPC are
to be excluded from consideration, as no opportunity can be said to
be afforded to him to explain them. For quick reference, we
consider it apt to reproduce the relevant paragraph 35 of the
Supreme Court's decision in case of Indrakunwar (supra), which
reads as under :-
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
"35. A perusal of various judgments rendered by this Court reveals the following principles, as evolved over time when considering such statements.
35.1 The object, evident from the Section itself, is to enable the accused to themselves explain any circumstances appearing in the evidence against them.
35.2 The intent is to establish a dialogue between the Court and the accused. This process benefits the accused and aids the Court in arriving at the final verdict.
35.3 The process enshrined is not a matter of procedural formality but is based on the cardinal principle of natural justice, i.e., audi alterum partem.
35.4 The ultimate test when concerned with the compliance of the Section is to enquire and ensure whether the accused got the opportunity to say his piece.
35.5 In such a statement, the accused may or may not admit involvement or any incriminating circumstance or may even offer an alternative version of events or interpretation. The accused may not be put to prejudice by any omission or inadequate questioning.
35.6 The right to remain silent or any answer to a question which may be false shall not be used to his detriment, being the sole reason.
35.7 This statement cannot form the sole basis of conviction and is neither a substantive nor a substitute piece of evidence. It does not discharge but reduces the prosecution's burden of leading evidence to prove its case. They are to be used to examine the veracity of the prosecution's case.
35.8 This statement is to be read as a whole. One part cannot be read in isolation.
35.9 Such a statement, as not on oath, does not qualify as a piece of evidence under Section 3 of the Indian Evidence Act, 1872; however, the inculpatory aspect as may be borne from the statement Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
may be used to lend credence to the case of the prosecution.
35.10 The circumstances not put to the accused while rendering his statement under the Section are to be excluded from consideration as no opportunity has been afforded to him to explain them.
35.11 The Court is obligated to put, in the form of questions, all incriminating circumstances to the accused so as to give him an opportunity to articulate his defence. The defence so articulated must be carefully scrutinized and considered.
35.12 Non-compliance with the Section may cause prejudice to the accused and may impede the process of arriving at a fair decision."
27. The decision in case of Premchand (supra) has also
been noticed by the Supreme Court in case of Indrakunwar
(supra).
28. We are of the considered view that in the present
case the trial court has not fulfilled the requirements of the
provision under Section 313 of the CrPC. In our considered view,
it was obligatory on the part of the trial court to have explained to
the appellant, while questioning him under Section 313 of the
CrPC, all the incriminating circumstances which emerged against
him based on the evidence of the prosecution's witnesses which
could be the basis for his conviction.
29. Even on merits, we find that the prosecution cannot
be said to have proved the charge against the appellant beyond all
reasonable doubt based on the evidence adduced at the trial. This Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
is for the reason that the First Information Report, which is the
foremost version of the prosecution's case, did not disclose
presence of PW-1 at the place of occurrence when the occurrence
had taken place. There is no justification forthcoming as to why
the informant was withheld from being examined at the trial. The
rest of the witnesses have not claimed to be eye-witnesses except
PW-3 who is said to have seen the appellant fleeing with a pistol
from the place of occurrence and the informant chasing him. The
statement of PW-3 was not recorded by the police during the
course of investigation under Section 161 of the CrPC as is evident
from his cross-examination. He deposed as witness for the first
time at the trial.
30. In the aforesaid background, in our considered
opinion, the conviction based on the evidence of PW-1 cannot be
safely uphold.
31. For the reasons noted above, the impugned judgment
of conviction requires interference. Accordingly, the impugned
judgment of conviction and order of sentence dated 07.08.2013/
13.08.2013 passed by the learned Additional Sessions Judge-IV,
Danapur, Patna in S.T. No. 312 of 2008, arising out of Dulhin
Bazar P.S. Case No. 109 of 2007 are set aside. The appellant Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
stands acquitted of the charge of offences punishable under
Section 302 of the IPC and Section 27 of the Arms Act.
32. This appeal is allowed accordingly.
33. The appellant is in jail custody. Let him be released
forthwith, if he is not required in any other case.
34. Before we part with the present judgment, we are
constrained to notice a shockingly glaring aspect as regards the
period of incarceration the appellant who had to suffer right from
his arrest in April 2008 till date. This appeal has remained pending
before this Court for more than ten years. The appellant's prayer
for suspension of sentence was rejected on 05.11.2014. From the
records it appears that no serious effort was made for expediting
final hearing of the appeal, considering long period of the
appellant's incarceration.
35. In October 2023, an application was filed for
suspension of sentence of the appellant's release on bail. This
Court, having taken into account the appellant's period of
incarceration, deemed it fit to expedite final hearing of the appeal.
The record suggests that the appellant was not duly pursued for
early disposal. Had the fact been brought to the Court's notice, the
appellant would have been, possibly, provided legal aid.
Patna High Court CR. APP (DB) No.875 of 2013 dt.23-01-2024
36. We consider it fit, in the aforesaid background to
direct the Member Secretary, Bihar State Legal Services Authority,
Patna to get conducted a survey through the Secretaries of the
respective District Legal Services Authorities regarding the
convicts who are in custody for long period in time from the
perspective of providing them legal aid, if required. The Member
Secretary, based on the outcome of the survey, shall take necessary
steps to provide legal aid as and when required.
(Chakradhari Sharan Singh, J)
(G. Anupama Chakravarthy, J)
Rajesh/Shanu
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 31.01.2024
Transmission Date 31.01.2024
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