Nemichand vs State of Rajasthan

Mahesh Bhagwati, J.—Challenge in this revision petition is to the order dated 26.6.2008 rendered by the learned Additional Sessions Judge (Fast Track) No. 4, Jodhpur, whereby the learned appellate Court allowed the appeal of the accused Nemi Chand and remitted the case to the learned trial Court for re-examining the accused u/s 313 of Code of Criminal Procedure recording his explanation for the evidence appearing against him on record.

Heard learned Counsel for the revisionist as also the learned Public Prosecutor appearing for the State and carefully perused the relevant material on record.

Learned Counsel for the revisionist took me through the impugned order dated 24.6.2008 and canvassed that the learned Appellate Court allowed the appeal and remitted the case to the trial Court for re-recording the statements of the accused u/s 313 of Code of Criminal Procedure, as the evidence appearing in the statements of the witnesses namely PW.10 Kishore Singh and PW-11 Babu lal were not put to the accused and the explanation was not sought for that evidence. Learned Counsel contended that when the accused was not examined u/s 313 of Code of Criminal Procedure for the evidence which appeared against him, in that event, the learned Appellate Court ought to have acquitted the accused for the offence u/s 19/54 of Rajasthan Excise Act and instead, remitted the case to the learned trial Court for re-examination of the accused. He placed reliance on the cases of Asraf Ali Vs. State of Assam, Jitendra and Another Vs. State of M.P., and Lallu Manjhi and Anr. v. State of Jharkhand reported in 2002 Cri.L.J. 4330.

Learned Counsel for the revisionist further contended that in the light of evidence on record, the revisionist be acquitted and the criminal revision petition be disposed of accordingly.

Learned Public Prosecutor appearing for the State stated the impugned order to be just and proper and it does not call for any intervention.

In the case of Lallu Manjhi (supra), the Hon''ble Apex Court, in para 14 categorically observed as under:

Incidentally, it may also be stated that the manner in which the Trial Court has recorded the statements of the accused persons u/s 313, Code of Criminal Procedure is far from satisfactory. The entire prosecution case running into very many details has been summed up into just 5 questions asked to each of the accused persons. It is obligatory on the part of the trial Court to examine the accused for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording conviction of the accused persons.

In the case of Asraf Ali (supra), the Hon''ble Apex Court has held thus:"13. 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 there from 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. 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."

In this case of Asraf Ali (supra) albeit, the High Court found that the circumstances relied upon by the prosecution were not specifically brought to the notice of the accused, it is observed that the object of questioning an accused person u/s 313 of Code is to provide an opportunity to the accused of explaining the circumstances that appear against him in evidence. It was further noted that the evidence against the accused consisted of circumstantial evidence only and the circumstances should have been brought to his notice and his explanation called for. It was noted that the trial Court faltered in its duty in the examination. But the High Court felt that no material prejudice was caused to the accused and the accused was found to be absconding for long time and rancorous relationship between the deceased and the accused was established and the High Court convicted the accused u/s 304 Part II IPC. The Hon''ble Apex Court relying upon the judgment given in Sharad Birdhichand Sarda Vs. State of Maharashtra, held that any circumstance in respect of which an accused was not examined u/s 313 of Code of Criminal Procedure cannot be used against him. Ever since this decision, there are catena of authorities of the Hon''ble Apex Court uniformly taking the view that unless the circumstance appearing against the accused is put to him in his examination u/s 313 of the Code, the same cannot be used against him. Thus, it is a settled proposition of law that if the court intends to base conviction of the accused on the evidence emerging in the statements of the witnesses and no question is put to the accused and explanation is not sought for, undeniably and undisputably, it will cause serious or material prejudice to the accused.

In the case on hand too, two witnesses PW.10 Kishore Singh and PW. 11 Babu lal were examined, who had given evidence against the accused revisionist Nemi Chand. Since, the accused was not afforded an opportunity to explain the circumstances appearing against him in the statements of the witnesses, learned Additional Sessions Judge, Jodhpur, rightly allowed the appeal and set aside the conviction of the accused Nemi Chand and remitted the case to the learned trial Court for re-examining the accused u/s 313 of Code of Criminal Procedure The impugned order of the learned Additional Sessions Judge is found to be perfectly just and proper and the same suffers from no infirmity. In view of above, the impugned order does not warrant any intervention and the revision Petitioner deserves to be dismissed at the threshold.

For the reasons stated above, the criminal revision petition filed u/s 397/401 of Code of Criminal Procedure on behalf of the revisionist Nemichand stands dismissed accordingly.