Jasbir Singh vs State of Punjab

Paramjit Singh Patwalia, J.—Instant revision petition has been filed against the judgment of conviction/order of sentence dated 08.09.2009 passed by learned Judicial Magistrate Ist Class, Jagraon whereby petitioner has been convicted and sentenced to undergo imprisonment under Sections 279/304-A IPC as well as against the judgment dated 17.02.2014 passed by learned Additional Sessions Judge, Ludhiana, whereby appeal preferred by petitioner has been dismissed.

The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in detail. However, the facts relevant for disposal of this revision are that on 14.06.2005 complainant - Parminderjit Singh along with Jatinderpal Singh alias Bittu, Baldev Singh and Bittu son of Kartar Singh was going on their jeep bearing registration No. PUB-9963 from the side of Sarabha to Chhoti Dolon for the purpose of distributing the cement bags. The jeep was being driven by Jatinder Pal Singh, brother of the complainant. At about 5.30 p.m., when they reached near village Sehzad, then a Tata Tempo 407 bearing registration No. PB-10AC-9644 came from the side of Ludhiana, being driven in a rash and negligent manner. The driver brought Tata Tempo 407 on the wrong side and struck the same against the jeep of the complainant. Complainant escaped and he came out of the jeep and brought out Jatinder Pal Singh injured out of the jeep with the help of the persons present there. The driver of the Tata Tempo was also taken out by the people present at the spot. On being asked, driver disclosed his name as Jasbir Singh son of Gurdev Singh. Due to grievous and multiple injuries, Jatinder Pal Singh died at the spot, Baldev Singh and Bittu also sustained many injuries and they were shifted to Civil Hospital, Sarabha for the purpose of treatment. After registration of FIR, case was investigated by the police and after completion of investigation, report u/s 173 Cr.P.C. was prepared and challan was put in the Court.

On appearance of the accused, he was supplied with complete set of documents as required u/s 207 Cr.P.C. by trial Court. Trial Court vide its order dated 08.09.2009 framed the charge against the petitioner under Sections 279/337/304-A/427 IPC. The charges were read over and explained to the accused to which he did not plead guilty and claimed trial.

Prosecution in support of its case, examined as many as five witnesses and thereafter evidence of the prosecution was closed by order.

Statement of petitioner/accused was recorded u/s 313 Cr.P.C. Petitioner closed his evidence without examining any witness in defence.

Learned trial Court found the petitioner guilty under Sections 279/304-A IPC and sentenced him to undergo rigorous imprisonment for a period of three years. Petitioner preferred an appeal against the judgment of conviction and order of sentence before the appellate Court, which has been dismissed. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner vehemently contended that judgment of the appellate Court is not sustainable as it is based on the ground that petitioner had not stepped into witness box, which is contrary to Section 315 Cr.P.C. as well as Article 20 of the Constitution of India. Learned counsel for the petitioner further contended that there is procedural defect with regard to recording of statement u/s 313 Cr.P.C. as all the incriminating evidence has not been put to the accused.

Learned State counsel vehemently opposed the contentions of learned counsel for the petitioner.

I have considered the contentions raised by learned counsel for the parties.

Observations of the appellate Court are as under: -

"19................. Undisputely, the prosecution has proved from the testimony of eye witness PW1 Parminderjit Singh and PW-2 Baldev Singh that appellant was driving his Tata tempo at the relevant time. However, the appellant himself has not dared to grace the witness box in order to throw some light to remove the doubt in regard to the negligence on his part. A catina of ruling on the such like cases positively shows that one person who could offer an explanation regarding the nature of incident was the accused himself. The explanation of the accused could also be taken note in the background of the prosecution evidence to find out if he had been negligent while driving the vehicle. Unfortunately, appellant had not choosen to offer any explanation when he was examined u/s 313 Cr.P.C. It is also law that if a person is driving the vehicle, he is duty to control it. He would be prima facie guilty of negligence if the vehicle left the road and it was for the person who was driving the vehicle to explain the circumstances under which the vehicle had met within the accident. In this case the prosecution having proved the rash and negligent driving of the accused. The appellant simply denied the accident and by simply denying the accident itself totally exposed the appellant that by such denial he tried in vain to hoodwink the prosecution to escape from clutches of law. It was the duty of the appellant being driver of the offending Tata tempo to drive the Tata tempo on the road in controllable position. The driver while driving their heavy vehicle has to take extreme care and caution and absence of the same will certainly amounts to negligence and rashness on the part of the such driver and this happened in the case in hand. Moreover, the appellant has not explained as if the accident was not caused with his vehicle, then how his vehicle was seized by the police immediately after the accident and how the damages have been noted on his vehicle. In such circumstances, the plea taken by the appellant has remained unestablished. The appellant rammed the Tata tempo against the jeep of the complainant from right side, which resulted into the death of one person namely Jatinderpal Singh. Thus, the appellant while driving the Tata tempo on a public place endanger human life by his rash and negligent act."

The underlined observations in the quoted para from the judgment of learned Additional Sessions Judge above are that appellant himself did not dare to grace the witness box in order to throw some light to remove the doubt in regard to negligence on his part. These observations are contrary to Article 20(3) of the Constitution as accused cannot be compelled to be a witness against himself. Section 315(1) Cr.P.C. envisages that accused is a competent witness for defence and can give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial subject to the following proviso:

"Provided that -

(a) x x x x x

(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial."

So the observation of the appellate Court as referred to above are against the spirit of Section 315 Cr.P.C. The Court has no power to comment and raise presumption in this regard. Otherwise also prosecution has to stand on its own legs. The observation of the appellate Court underlined in the quoted para from its judgment are uncalled for. On this ground alone the judgment of the appellate Court is not sustainable.

Second legal argument raised by the learned counsel for the petitioner is that all incriminating material has not been put to the petitioner in the statement recorded u/s 313 Cr.P.C. as a result of which prejudice has been caused to him.

I have carefully gone through the impugned judgments and other material on record. In my opinion, the learned counsel for the petitioner is correct in submitting that the provisions of Section 313 Cr.P.C. have been violated and grave prejudice has been caused to the petitioner by this omission, since the entire incriminating evidence was not put to him by the trial court u/s 313 Cr.P.C. This fact has been fairly admitted by the learned State counsel. Therefore, the contention of the learned counsel for the petitioner that the conviction cannot be sustained in law for this reason also appears to be correct. Section 313 Cr.P.C. deals with the power of the trial court to examine the accused, which reads as under:-

"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".

Even a cursory look at the provisions extracted above makes it amply clear that the trial Court is obliged to explain to the appellant/accused any circumstances appearing in the evidence against him. There is no dispute that material evidence has been taken into account by the learned trial court in convicting the petitioner. The effect of non-compliance of provisions of Section 313 Cr.P.C. has been dealt with by the Hon''ble Supreme Court in the case of Ajay Singh Vs. State of Maharashtra, which reads thus:.

"13. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.

The word "generally" in sub-section (1) (b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused''s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed:

"30..... it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him..... The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder...... Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand."

The Hon''ble Supreme Court in the case of Sujit Biswas Vs. State of Assam, has also held that incriminating material which is not put to the accused in examination u/s 313 Cr.P.C. cannot be used against him and must be excluded from consideration.

In my opinion, the approach of the trial court is casual in nature and cannot be countenanced by this Court. The trial court ought to have proceeded with the case with the seriousness it deserves, particularly, when the petitioner is charged with a serious offence.

Looking at the matter from any angle, this petition deserves to be allowed. Ordered accordingly. The impugned judgment of conviction and order of sentence of trial Court and impugned judgment of appellate Court are accordingly set aside and the case is remanded to the trial Court for fresh trial in accordance with law from the stage of examination of the accused. Petitioner would appear before the trial court on 21.08.2014. It is submitted by the learned counsel for the petitioner that petitioner is in judicial custody and was on bail during trial and the offences are bailable. It shall be open to the petitioner to approach the trial Court for bail, which, no doubt, will be considered by the trial court on merit and in accordance with law.