State vs Vijaykumar @ Shadakshari, Channabasappa and Parvathamma

N. Ananda, J.—The learned trial judge has acquitted the respondents (accused) of offences punishable under Sections 498-A, 306 r/w 34 IPC and also for offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act. Therefore, the State has filed this appeal. I have heard learned Government Advocate for the State and Sri. A.H. Bhagavan, learned counsel for accused.

On hearing learned counsel for parties and after going through evidence, I find that the prosecution has adduced evidence that, after the deceased (wife of accused No. 1) gave birth to a child and came back to the house of accused after the period of confinement, accused were not providing milk to the child aged about 7 months. They were also not providing food to the deceased. In that way, the deceased and her child were starving. In order to tied over the situation, the deceased had brought a Sewing machine from her parental house.

As per the case of prosecution, this is a part of incriminating evidence which would attract an offence punishable u/s 498-A IPC. The learned trial judge has not put this incriminating evidence to the accused when he was examined u/s 313 Cr.P.C.

The law is fairly well settled, if the incriminating evidence is not put to the accused when he is examined u/s 313 Cr.P.C., the same cannot be used by the trial court to convict the accused.

In a decision reported in 1999 Cri.L.J. 2632 (in the case of Deputy Superintendent of Police, Railway, Hubli v. Dasharath, S/o. Marthandappa Malge and Others) a Division Bench of this court has held:

if the trial court fails to examine the accused u/s 313 Cr.P.C., with reference to incriminating evidence appearing against him and the manner of examination chosen to afford just and fair opportunity to the accused the matter has to be remanded to the trial court to examine the accused afresh.

In a decision reported in Keshavamurthy Vs. State, this court following the aforestated judgment has remanded the matter to the trial court for providing an opportunity to the accused to explain the incriminating evidence adduced against him.

In the case on hand, aforestated incriminating evidence was not put to accused when he was examined u/s 313 Cr.P.C. The question whether the aforesaid incriminating evidence would attract an offence u/s 498-A IPC or not, would arise for consideration only after such incriminating evidence is put to accused and an opportunity is offered to the accused to explain the incriminating evidence appearing against him. Therefore, the impugned judgment cannot be sustained. In the result, I pass the following:

ORDER

The appeal is accepted. The impugned judgment is set aside. The matter is remanded to the trial court for examination of accused u/s 313 Cr.P.C., in the light of observations made herein and in accordance with law.

After examination of accused u/s 313 Cr.P.C., and calling upon the accused to adduce defence evidence, if he so desires, the learned trial judge shall hear the learned counsel for parties and decide the case on merits within a period of six months from the date of receipt of copy of this judgment.