Makhan Singh vs State of Punjab

S.K. Jain, J.

This revision petition is directed against the order of October 13, 1988 of the learned Additional Sessions Judge, Gurdaspur vide which he had set aside the judgment of conviction and order of sentence of January 15, 1988 passed by Judicial Magistrate, Batala thereby convicting the accused petitioner herein under section 9 Opium Act, 1978 (hereinafter referred to as `the Act'') and sentenced him to undergo R.1 for 11/2 years and to pay a fine of Rs. 500/ and in case of default of payment of fine to undergo further R. I for three months, and remanded the case back to the learned trial Magistrate for reexamination of the accused under section 313 Cr.P.C. and then to decide the case afresh.

Facts of this case are that on September 14, 1984, Makhan Singh petitioner was seen coming from the side of village Shahpur Goraya by a police party headed by Head Constable Wassan Singh. On being challenged, the accused threw the jhola carried by him and made good his escape. When the said jhola was searched, it was found to contain opium weighing 5 kilograms out of which 10 grams was separated. The sample as well as the remaining bulk was seized and various memos were prepared. F.I.R. was recorded. The accused was, however, arrested on 1.12.1984 and thereafter he was tried, convicted and sentenced.

Learned counsel for the petitioner has argued firstly, that material incriminating evidence was not put to the accused when he was examined under Section 313 Cr.P.C. and, therefore, he was liable to be acquitted whereas the learned lower appellate Court had illegally remanded the case back for reexamination of the accused thereby allowing the prosecution to fill in the lacuna which could not be done legally. In Support of his arguments he has cited at the Bar the following judgments :

(i) Ram Kishan v. State of Haryana, 1986(1) Recent C.R. 169.

(ii) Chander Bhan v. State of Haryana, 1985(2) Recent C.R. 510.

(iii) Balkar Singh v. State of Punjab, 1984(2) Recent C.R. 480; and

(iv) Bhim Singh v. State of Punjab, 1980(II) F.A.C. 346.

I have given a thoughtful consideration to the facts and circumstances of the case in hand and examined the abovesaid judgments. Prosecution story is that at the sight of the police, the petitioner had thrown away the jhola carried by him and made good his escape. It is also evident that the abovesaid occurrence had taken place on September 14, 1984 whereas the accused was arrested on Ist December, 1984. It had not been put to the petitioner in his statement under section 313 Cr.P.C. that he had run away from the spot after throwing the jhola and was subsequently arrested on Ist December, 1984. The learned Additional Sessions Judge after having rightly held that as the prosecution case was not put to the petitioner properly, he was bound to have been prejudiced at the trial as he had not been afforded an opportunity to explain the circumstances appearing in the evidence against him, and that the conviction and sentence imposed on him could not be sustained, had gravely erred in remanding the case back to the trial Magistrate.

The provisions of Section 313 of the Code enable the accused personally to explain any circumstance appearing in the evidence against him. The language employed is explicit in terms indicating that a Court is required to question generally on the case to enable the accused personally to explain any circumstance appearing in the evidence against him. This makes it imperative that nothing vague has to be left by the Court in the matter of questioning him on the case. Every material evidence for the prosecution has to be put to him for his personal explanation. Here, although it was put to the accused that he had been secured on the spot and that from the jhola carried by him poppy husk weighing 5 kilograms was recovered. But it was nowhere put to him that on seeing the police he had made good his escape after throwing the jhola containing the contraband property and that he was subsequently arrested on Ist December, 1984. This lapse on the part of the trial Magistrate would be violative of the guarantee of personal explanation given to an accused person under section 313 Cr.P.C. Hence conviction of the petitioner is unsustainable and, therefore, has to be set aside on this ground alone. Remanding the case back to the learned trial Magistrate for rerecording the statement of the accused under section 313 Cr.P.C. would tantamount to allowing the prosecution to fill in the lacuna which could not be legally done.

Secondly, learned counsel for the petitioner has argued that the identity of the accused had also not been established on the record, much less firmly. Admittedly, P.W. 2 Wassan Singh who is the Investigating Officer of this case has nowhere stated that the accused who had run away from the spot was known to him. It is also not the case of the prosecution that the accused had been put on identification on his arrest to enable the witnesses to identify him. Therefore, on this account also the judgment of conviction could not be sustained.

As a result of the above discussion I am of the view that the learned Additional Sessions Judge after having set aside the judgment of conviction and order of sentence assailed before him could not have remanded the case back to the trial Magistrate for reexamination of the accused under section 313 Cr.P.C. and then decide the case afresh. The only course left to him was to acquit the accused. Resultantly, the judgment is set aside. The revision petition is accepted and the accused is acquitted.