Allowed

Surjan and Others v. State of U.P.

Allahabad HC15 May 2018CRLA/1399/2012

Case brief

AI extract

What is this about?

The single-bench High Court allowed an appeal against conviction under Section 302 IPC and 149 IPC. The court set aside the trial court's verdict because the Appellant was not questioned on specific incriminating evidence under Section 313 Cr.P.C., causing prejudice, and refused to remit the matter for retrial due to the long lapse of time and incarceration.

What did the court decide?

The conviction and sentence of the appellants were set aside. The appellants were ordered to be released from jail subject to provisions of Section 437(A) Cr.P.C.

Surjan and Others Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2018)

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A.F.R.

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Judgment reserved on 2.4.2018 Judgment delivered on 15.5.2018

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Case :- CRIMINAL APPEAL No. - 1399 of 2012

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Appellant :- Surjan & Others Respondent :- State Of U.P . Counsel for Appellant :- S.D. Yadav,Anvir Singh,Sharique Ahmed

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Counsel for Respondent :- Govt. Advocate

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Gupta,J.

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(Delivered by Hon'ble Rajiv Gupta, J)

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The present appeal arises out of the judgment and order dated 2.2.2012/6.2.2012, passed by Addl. Sessions Judge, Court No. 1, Kanpur Nagar in S.T. No. 706 of 2001, (State Vs. Surjan and another), S.T. No. 706-A of 2001 (State vs. Tara) arising out of Case Crime No. 67 of 2001, under Sections 148, 149, 302 IPC, S.T. No. 722 of 2001 (State vs. Tara) arising out of Case Crime No. 85 of 2001, under Section 25 Arms Act, S.T. No. 720 of 2001 (State vs. Surjan) arising out of Case Crime No. 87 of 2001, under Section 25 Arms Act and S.T. No. 719 of 2001 (State vs. Raju Kumar) arising out of Case Crime No. 88 of 2001, by which the appellants have been convicted for the offence punishable under Section 302 IPC read with Section 149 IPC and awarded sentence of rigorous life imprisonment with fine of Rs. 20,000/- and in default of payment of fine, six months further imprisonment, under Section 148 IPC, awarded sentence of 2 years' rigorous imprisonment with fine of Rs. 2000/- and in default of payment of fine, two months' further imprisonment and under Section 25 Arms

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Act, awarded sentence of 2 years' rigorous imprisonment with fine of Rs. 2000/- and in default of payment of fine, two months' further imprisonment.

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Shorn of unnecessary details, the prosecution story in nutshell as unfolded on the basis of written report Exbt. Ka1 given by first informant- Kallu S/o Panna Lal, P.S. Maharajpur, District- Kanpur Nagar on 7.4.2001 at 10:15 P.M. in respect of an incident which had allegedly taken place on the same day at 5:30 P.M. in which according to the informant, at the time of incident, he along with his brother Gore Lal, mother Sudevi and sister Reema were cutting wheat crops in their fields wherein at about 5:30 P.M., the accused namely Karan, Tara, Surjan Singh all sons of Ram Bhajan and Atar Singh S/o Raja Ram and Raj Kumar S/o Shyam Singh came at their fields armed with tamanchas and on reaching there, they opened fire on his brother Gore Lal and shot him dead and thereafter made their escape good towards Kudhwa. On the basis of said written report- Exbt. Ka-1, chik first information report Exbt. Ka-3 was drawn and necessary G.D. Entry was made vide G.D. Report No. 57 at 22:15 hours by Indresh Kumar (P.W.4), the then Head Constable.

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The said first information report was registered in the presence of I.O. Sukhram Singh (P.W.-5) who recorded the statement of first informant at the police station itself and thereafter proceeded to the place of incident where he prepared the site-plan at the pointing out of the first informant, which is marked as Exbt. Ka-7 and thereafter panchayatnama was conducted by S.I. Ramesh Chandra under the supervision of the Investigating Officer, who

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prepared the photo-nash, challan-nash, chitthi C.M.O., chitthi R.I. etc. which has been marked as Exbt.Ka-8 to Exbt. Ka-13, the Investigating Officer is also said to have recovered a 315 bore empty cartridge , a 315 bore bullet and also a 12 bore empty cartridge and prepared its recovery memo, which is marked as Exbt. Ka-14. He has also taken blood stained and plain earth and prepared its memo, which is marked as Exbt. Ka-15 and thereafter recorded the statements of other witnesses Km. Reema and Smt. Sudevi. Thereafter the investigation was transferred to Sub-Inspector Narendra Pratap Narain Singh (P.W.-6), who after perusing the case diary, recorded the statements of Karan, Tara, Raj Kumar and Surjan, who were in jail and on the basis of disclosure statement made by them got recovered the weapon of assault on the pointing out of the aforesaid four accused. The recovery memo was prepared on 1.5.2001 and on the basis of the said recovery, another first information report was lodged vide Case Crime No. 85, 86, 87 and 88 of 2001 respectively under Section 25 Arms Act.

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After concluding the investigation, charge sheet was submitted against appellants Tara, Surjan, Raj Kumar and Karan under Sections 147, 148, 149, 302 IPC and also under Section 25 of the Arms Act and the case being triable by session, was committed on 26.9.2001 and thereafter charges were framed against the appellants Surjan, Tara, Karan and Raj Kumar on 16.4.2002 under Section 148 and 302 read with Section 149 IPC and also under Section 25 Arms Act to which they did not plead guilty and claimed to be tried.

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In order to establish its case, the prosecution examined as many as 8 witnesses. Kallu (P.W.-1) is the first informant and the eye witness of the incident, Reema Yadav (P.W.-2) another eye witness of the incident, Dr. A.K. Shukla (P.W.-3), who conducted the autopsy on the person of the deceased, Indresh Kumar (P.W.-4), the then Head Constable, who had prepared chik FIR and the corresponding G.D., Sukhram Singh (P.W.-5), the first Investigating Officer, Sub- Inspector Narendra Pratap Narain Singh (P.W.-6), the second Investigating Officer, Parvez Aslam Khan, the Investigating Officer of the case registered under Section 25 of the Arms Act, Ramesh Chandra Sharma (P.W.-8), who prepared the Panchayatnama and other police papers and handed over the body to the constable for taking the same to the mortuary for conducting the postmortem. One Ram Kishan was also examined as C.W.-1, who proved the report of accused Karan Singh which is marked as Exhibit- C-1.

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After conclusion of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. in which they stated that they had been falsely implicated in the present case on account of past enmity and alleged that false recovery has been shown to be made on their pointing out.

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After considering the submissions advanced on behalf of learned counsel for the parties as well as the evidence brought on record, the trial court returned the finding of conviction and sentenced the appellants under the aforesaid sections, which has been challenged by means of the present appeal.

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Heard Sri Sharique Ahmad, learned counsel for the appellants and Sri Saghir Ahmad, learned AGA for the State.

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Learned counsel for the appellants has submitted that taking into entire evidence on its face value, the prosecution has not been able to prove its case beyond reasonable doubt against the appellants. He has further submitted that the incriminating evidence against the appellants has not been put while questioning them under Section 313 Cr.P.C. Learned counsel for the appellants elaborating the said argument has urged that it is mandatory to put all the incriminating evidence and circumstances to the accused, which forms the basis of conviction of the appellants. However, the same has not been put to the accused and non questioning of the accused as to the vital piece of evidence is fatal to the prosecution case and vitiates the conviction.

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In order to buttress his argument, learned counsel for the appellants has placed reliance upon the case reported in (2009) 4 SCC 200, State of Punjab vs. Hari Singh. On the other hand, learned AGA has submitted that prosecution has proved its case beyond all the reasonable doubt against the appellants, on the basis of which, the trial court as to the guilt of the accused, has convicted them and sentenced them accordingly. He has further submitted that non questioning of the accused under Section 313 Cr.P.C. by itself will not vitiate the trial and the accused-appellant has to establish the prejudice caused to him.

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The main thrust of the argument of the appellant is on the question of non-compliance with Section 313 Cr.P.C. and on that basis he has vehemently urged that the

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conviction of the appellant cannot be sustained.

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Section 313 Cr.P.C. envisages the power to examine the accused which may be quoted as under :

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Power to examine the accused.

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(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-

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(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

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(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:

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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).

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(2) No oath shall be administered to the accused when he is examined under sub- section (1).

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(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

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(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 oth(1)er offence which such answers may tend to show he has committed.

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[(5) The Court may take help of Prosecution and Defence Counsel in preparing relevant question 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]

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From the careful perusal of the provisions of Section 313 Cr.P.C., it is clear that it speaks of two kinds of examination, first under Section 313 (1)(a) Cr.P.c., which relates to any stage of inquiry or trial, while the second under Section 313 (1)(b) Cr.P.C. takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence.

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The Hon'ble Supreme Court in the case of Usha K. Pillai vs. Raj K. Srinivas (1993) 3 SCC 208 , has held that the Court is empowered by Section 313 (1)(a) Cr.P.C. to question the accused at any stage of the inquiry or trial, while section 313 (1)(b) Cr.P.C. obligates the Court to question the accused before he enters his defence on any circumstance appearing in prosecution evidence against him.

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The Hon'ble Supreme Court elaborating upon the importance of a statement under Section 313 Cr.P.C., in the case of Paramjeet vs. State of Uttarakhand, (2010) 10 SCC 439 has held as under:

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22 "Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response.

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This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration." (vide Sharad Birdichand Sarda v. State of Maharashtra(1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700.

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In Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740 , this Court considered the scope of Section 313 Cr.P.C. and in paras 18 to 20 held as under:-

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"18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly

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complied with. He observed thus: (AIR p. 620, para 21)

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"21.....The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."

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Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

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At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section (1) in Section 313 of [pic]the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him."

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In the case of Asraf Ali vs. State of Assam (2008) 16 SCC 328 the Hon'ble Apex Court has held that :-

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Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

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The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence,

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it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh vs. The State (AIR 1976 SC 2140), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Nonindication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.

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Relying upon the aforesaid principle of law, learned counsel for the appellants has vehemently urged that since the material and the incriminating circumstance was not put to him in his statement under Section 313 Cr.P.c., as such the conviction recorded by the trial court cannot be sustained.

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So far as the statement of the appellant is concerned, undoubtedly as per Section 313 Cr.P.C. the attention of the appellant must be brought to inculpable pieces of evidence to give him an opportunity to offer an explanation, if he chooses to do so.

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Thus, it is well settled principle of law that the facts of each case have to be examined but the broad principle is that all incriminating material circumstances must be put to the accused while recording his statement under Section 313 Cr.P.C. as held in the Case of Santosh Kumar Singh vs. State, (2010) 9 SCC 747. The question is that whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non compliance of Section 313 Cr.P.C. has materially prejudiced him or is likely to cause prejudice to him. The Hon'ble Apex Court in it's judgment has held that omission to put the

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question under Section 313 Cr.P.C. if caused prejudice to the accused, then the conviction stands vitiated.

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In State of Punjab vs. Hari Singh, whether question regarding conscious possession of narcotics was not put to the accused when he was examined under Section 313 Cr.P.C. the Court has held that such omission vitially affected the prosecution case and affirmed the acquittal.

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On the contrary learned AGA has submitted that when there is perfunctory examination under Section 313 Cr.P.C., the matter could be remitted back to the trial court with a direction for retrial from the stage at which the prosecution was closed and has drawn the attention of the Court to the observation made by the Apex Court in a case reported in (1973) 2 SCC 793, which is as under :-

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“It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction."

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We have carefully considered rival submissions made by the learned counsel for the appellant and the learned AGA for the State.

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Learned counsel for the appellant has drawn our attention to the fact that incident in the present case has taken place way back in the year 2001 i.e. about 17 years have already lapsed and after submission of the chargesheet and framing of charge, the trial was finally concluded and judgment of conviction and sentence was passed on 2.2.2012/6.2.2012 after lapse of more than 11 years. During this period, appellants Raj Kumar remained incarcerated in Jail for more than 9 years and appellantTara have already been incarcerated in Jail for more than 8 years, whereas the other accused Surjan was on bail during the course of trial has already undergone about 6 years incarceration in Jail.

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Looking to the lapse of about 17 years from the date of incident and long incarceration, which the appellants have already undergone during the course of trial and appeal, we are of the opinion that it would not be proper to remit the matter to the trial court from the stage at which the prosecution was closed. The Hon'ble Supreme Court in the Case of Nar Singh vs. State of Haryana, reported in (2015) 1 SCC 496, has held that 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 merits, keeping in view the prejudice caused to the accused.

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In view of the settled proposition of law laid down by the Hon'ble Apex Court, since in the present case, the circumstances which has been relied upon by the trial court to find three accused guilty were not specifically brought to the notice of the accused. Therefore, in essence his examination under Section 313 of the Code was rendered an empty formality. On that count alone, the impugned judgment of the trial court cannot be sustained and is set aside. The conviction and sentence accordingly stands set aside.

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The appeal is allowed. The appellants shall be released from jail if not required in any other case subject to fulfilling the requirement under Section 437(A) Cr.P.C.

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A copy of the judgement along with trial court record be sent to Sessions Judge, Kanpur Nagar for necessary compliance.

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Judgment be certified and placed on record.

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Order Date :- 15.5.2018 KU

Surjan and Others v. State of U.P.

Case brief

What is this about?

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Surjan and Others v. State of U.P.

Case brief

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