Rangegowda vs State of Karnataka

A.N. Venugopala Gowda, J. - Assailing the judgment of conviction for the offences punishable under Sections 498A and 304B of IPC and the order of sentence to undergo imprisonment and pay fine, the accused filed this appeal.

The accused is the husband of deceased Lakshmidevi. The alleged offence occurred on 10.12.2007. After investigation, charge-sheet was filed and the case being triable exclusively by the Court of Sessions was committed to the Sessions Court at Bengaluru City and was registered as S.C. No. 567/2008. The accusation made by the prosecution, when read over, having been denied by the accused by pleading not guilty'' and he having claimed trial, the prosecution, to prove its case examined 18 witnesses as PW1 to PW18, through whom Exs.P1 to P28 were marked apart from marking of M.Os. 1 to 5. The accused-appellant was found guilty and the impugned judgment was passed.

Parents of the deceased/PWs 1 and 2, elder brother of the deceased and his wife i.e., sister-in-law of the deceased/PWs 3 and 4 have turned hostile. Even PW5, deceased''s brother''s wife has turned hostile. So also the owner of the house/PW-7, in whose house the accused and the deceased with their children last resided. PW-18 - Dr. B.G. Thilak, has certified the ability of deceased to give statement. Ex.P22 is the first dying declaration dated 10.12.2007. There is a second dying declaration on 12.02.2007, marked as Ex.PI 2. PW-11 is the brother of the deceased and PW-12 is the cousin of the deceased and they have supported the prosecution.

Learned advocate for the appellant contended that none of the circumstances relied upon by the Trial Judge has been established beyond reasonable doubt and the material brought on record is insufficient to establish the guilt of the accused. He mainly contended that the incriminating circumstances appearing in the prosecution case put through its witnesses and documents was not put to the accused-appellant, while he was being questioned under Section 313, Cr.P.C. He submitted that Section 313, Cr.P.C. is mandatory and it is incumbent upon the Trial Judge to put all the incriminating evidence and circumstances to the accused to make it the basis for conviction and as the same has not been put and the non questioning of the accused on the prosecution materials has vitiated the impugned judgment of conviction. In support of the submissions, reliance was placed on certain decisions of this Court and that of the Apex Court, particularly with reference to the illegality in the matter of recording the two dying declarations marked as Exs.P22 and P12 respectively.

Learned HCGP, on the other hand, made submissions in support of the finding of guilt recorded by the learned Trial Judge and submitted that infirmity in the matter of recording the statement of the accused under Section 313, Cr.P.C. having not caused any prejudice, interference with the impugned judgment is not called for.

Charge was framed by the learned Trial Judge on 18.08.2008. Trial has commenced on 23.01.2009. Accused was examined under Section 313, Cr.P.C. and his statement was recorded on 19.09.2009. A statement was made on 05.10.2009, that the accused has no defence evidence. I.A.2 was filed by the learned Public Prosecutor, under Section 311, Cr.P.C. to recall PWs 1 and 2 and also to permit examination of CW28 - Dr.B.G. Thilak. Said application was allowed in part, on 18.11.2009. Dr. B. G. Thilak was summoned and was examined on 04.01.2010, as PW-18. Thereafter, the accused was examined under Section 313, Cr.P.C. on 08.01.2010 i.e., with reference to the evidence of PW-18. The judgment of conviction was passed on 02.02.2010 and Order on sentence was passed on 08.02.2010.

As the main thrust of the argument of the learned advocate for the appellant is non compliance with Section 313, Cr.P.C., I do not propose to consider the appeal on merit. The power to examine the accused is provided in Section 313, Cr.P.C. Section 313 (l)(b) of Cr.P.C. is mandatory. The object of the provision is to bring the substance of the accusation to the accused to enable him to explain each and every circumstance appearing in the evidence against him. Hence, the examination under Section 313 (l)(b) is not a formality and it imposes a duty on the Court to question the accused properly, so as to bring home to him the exact case, he will have to meet and thus an opportunity is given to him to explain.

Perused the statements recorded under Section 313, Cr.P.C. i.e., on 19.09.2009 and 08.01.2010. All the incriminating circumstances appearing in the statements made by the prosecution witnesses has not been correctly put to the accused and his view elicited. As a result, prejudice has occasioned to the accused. The trial held from the stage of recording statement under Section 313, Cr.P.C. i.e., on 19.09.2009 is vitiated. Based on such trial, the finding of guilt having been recorded on 02.02.2010, the impugned judgment and Order cannot be sustained.

In the said view of the matter, it is unnecessary to record finding on the rival contentions, with regard to the merit or otherwise of the case, urged by the learned advocate for the appellant and the learned HCGP. Taking into consideration the said aspect, there is a need for trial of the case from the stage the statement under Section 313, Cr.P.C. was recorded i.e., on 19.09.2009.

In the result, the appeal is allowed and the impugned judgment of conviction and order of sentence, noted supra, is set aside. The case is remanded to the Trial Court, to proceed from the stage it was pending, as on 19.09.2009. It is open to the accused to seek recalling of the prosecution witnesses including PW-18. In order to expedite trial, both parties shall appear before the Court below on 27.02.2016 and receive further orders. The case be decided with expedition and before 30.06.2016. If a bail application is filed, the same shall be considered and order passed without any delay.