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Judgment
N. Ananda, J.—The State has preferred this appeal against the judgment of acquittal of Respondents 1 to 3 (accused 1 to 3). Accused No. 1 was tried for offences punishable under Sections 498-A and 302 Indian Penal Code and also for an offence punishable u/s 3 of the Dowry Prohibition Act. Accused Nos. 2 and 3 were tried for offence punishable under Sections 498-A Indian Penal Code and 3 of Dowry Prohibition Act.
We have heard Sri P.M. Nawaz, learned Additional State Public Prosecutor for the State and Sri S.G.Rajendra Reddy, learned Counsel appearing for accused. We have been taken through the evidence and the impugned judgment.
On behalf of prosecution, PWs.1 to 31 were examined and documents as per Exs.P-1 to P-23 and material objects as per M.Os.1 to 4 were marked. The contradictory portions in the statements of PWs.1 and 5 recorded under 161 Code of Criminal Procedure were marked as Exs.D-1 and D-2.
The learned trial Judge, on appreciation of evidence has acquitted accused 1 to 3 of an offence punishable u/s 498-A and also u/s 3 of the Dowry Prohibition Act. The learned trail Judge has acquitted accused No. 1 of an offence punishable u/s 302 Indian Penal Code.
After going through the impugned judgment, we find that the learned trial Judge has acquitted accused No. 1 of an offence punishable u/s 302 Indian Penal Code, which was dealt by him under point No. 3. The learned trial Judge, while answering point No. 2 has field that the death of the wife of first accused namely, Anjanamma at about 8.00 p.m., on 20.8.2004 in the house of first accused was homicidal in nature. The learned trial Judge had formulated point No. 3 reading as hereunder:
On 20.08.2004 at about 8.00 p.m., A-1 in his rented house situated at Nallagutlapalli village Bagepalli Taluk, intentionally caused the death of his wife Anjanamma?
The learned trial Judge answered point No. 3 in negative and acquitted accused No. 1 of an offence punishable u/s 302 Indian Penal Code.
We reproduce the cryptic and laconic part of the impugned judgment under which the learned trail Judge answered point No. 3 in negative. The same reads as hereunder:
Therefore, the evidence of PWs.1 to 3 regarding giving of dowry to the accused is not believable. In the cross-examination, this witness admits that No. witnesses have deposed about they hearing galata sound from the house of the accused before the death of Anjanamma; there are several residential houses near the house of the first accused where the death of Anjanamma took place; from the statement of witnesses he came to know that first accused got down from the bus, which came from Chelur side along with his son and went to his house at about 8.15 p.m. Whereas, it is the case of prosecution that first accused killed his wife Anjanamma at about 8.00 p.m., on 20.8.2004. When he got down from the bus at about 8.15 p.m., it was impossible from him to kill his wife in his house at 8.00 p.m. Others having access to the house of the first accused in his absence cannot be over-ruled. Absolutely there are No. compelling circumstances to come to the conclusion that first accused committed murder of his wife Anjanamma, Regarding taking of dowry and cruelty to Anjanamma by the accused, it is a fit case to give benefit of doubt to accused Nos. 1 to 3. The prosecution miserably failed to prove that first accused committed the murder of his wife Anjanamma.
In a decision reported in Mukhtiar Singh and another Vs. State of Punjab, , the Supreme Court has held:
The trial Court was dealing with a serious case of murder. It was expected of it to notice and scrutinize the evidence and after considering the submissions raised at the bar arrive at appropriate findings, In vain have we searched through the cryptic judgment of the trial Court the reasons which prevailed with it to acquit the Respondents in Criminal Appeal No. 489 of 1985 or convict the Appellants in Criminal Appeal No. 434 of 1985, On the plainest requirement of justice and fair trial the feast that was expected of the trial Court was to notice, consider and discuss, howsoever briefly, the evidence of various witnesses as well as the arguments addressed at the bar. The trial Court has not done so. The trial Court apparently failed in the discharge of its essential duties. There is No. mention in the judgment as to what various witnesses deposed at the trial, accept for the evidence of the medical witness, ''The judgment does not disclose as to what was argued before it on behalf of the prosecution and the defence. The judgment is so infirm that we are unable to appreciate as to how the findings were arrived at. The judgment of the trial Court is truly speaking not a judgment in the eye of law. The trial Court appears to have been blissfully ignorant of the requirements of Section 354(1)(b) Code of Criminal Procedure. Since, the first appeal lay to this Court, the trial Court should have reproduced and discussed at least the essential parts of the evidence of the witnesses besides recording the submissions made at the bar to enable the appellate court to know the basis on which the ''decision'' its based. A ''decision'' does not merely mean the "conclusion" - it embraces within its fold the reasons which form the basis for arriving at the "conclusions". The judgment of the trial Court contains only the "conclusions" and nothing more. The judgment of the trial Court cannot, therefore, be sustained. The case needs to be remanded to the trial Court for its fresh disposal by writing a fresh judgment in accordance with law.
We also notice another serious illegality committed by the learned trial Judge. The learned trial Judge, while examining the accused u/s 313 Code of Criminal Procedure has not questioned them with reference to the evidence of witnesses who have supported the case of the prosecution and have given incriminating evidence against accused.
In. the decision reported in Parsuram Pandey and Others Vs. The State of Bihar, the Supreme Court has held:
We have perused the statement u/s 318 Code of Criminal Procedure and the question formulated by the trial Court is the present case and we may say that it is far from satisfactory. This Court time and again has laid down that 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 circumstance appearing in evidence against him. If such opportunity is not afforded, the incriminating piece of evidence available in the prosecution evidence against the accused cannot be relied upon for the purpose of recording the conviction of the accused person. It is imperative on the Court to record the statement u/s 313 Code of Criminal Procedure of the accused persons so as to give opportunity to the accused persons to explain any incriminating circumstance proved by the prosecution The duty cast on the Court cannot be taken lightly
In a decision reported in Sanatan Naskar and Another Vs. State of West Bengal, , the Supreme Court has held:
The answers by an accused u/s 313 of Code of Criminal Procedure are of relevance for finding out the truth and examining the veracity of the case of the prosecution the scope of Section 313 Code of Criminal Procedure is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors of proper application and consequences which shall flow from the provisions of Section 313 Code of Criminal Procedure. As already noticed, the object of recording the statement of the accused u/s 313 of Code of Criminal Procedure is to put all incriminating evidence to the accused so as to provide him as opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution At the same time also permit him to put forward his own version or reasons. if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement, which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false,. the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extant and consequences such statement can be during the enquiry and the trial. Over the. period of time, the Court have explained this concept and now it has attained, more or less, certainly in the field of criminal jurisprudence.
The law is fairly well settled if the incriminating evidence given by the witnesses is not put to the accused when examined under 313 Code of Criminal Procedure, the same cannot be used to record a judgment of conviction. We also notice from the impugned judgment that the learned trial Judge has taken into consideration certain omissions which are brought on record in contravention of provisions of Section 162 Code of Criminal Procedure.
In a judgment reported in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, , the Supreme Court has held:
The learned Counsel''s first argument is based upon the words in the manner provided by Section 145 of the Indian Evidence Act, 1872" found in Section 162 of the Code of Criminal Procedure, Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the judgment of this Court in Bhagwan Singh v. State of Punjab 1952 (1) SCR 812 : (AIR 1952 SC 214). Bose J. describes the procedure to be followed to contradict a witness u/s 145 of the Evidence Act thus at p. 819 (of SCR): (at p.217 of AIR):
Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the formers statement. In such a case all that is necessary is to look to the former statement of which No. further proof is necessary because of the admission that it was made.
It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions u/s 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used far contradiction u/s 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parte: the first part enables the accused to cross-examination a witness as to previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross examination assumes the shape of contradiction in other words, both parts deal with cross examination; the first part with cross examination other than by way of contradiction, and the second with cross examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed, To illustrate: A says in the witness box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicte his statement in the witness-box. If he admits his previous statement, No. further proof is necessary; if be does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned Counsel may be illustrated thus: If the witness is asked "did you say before the police Officer that you saw a gas light?" and he answers "yes", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police-officer. If a police-officer did not make a record of a witness''s statement, his entire statement could not be used far any purpose, whereas if a police-officer recorded a few sentences, by this process of cross-examination, the witness''s oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustrations given by the learned Counsel for the Appellants there is No. self-contradiction of the primary statement made in the witness-box for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case the question could not be put at all only questions to contradict can be put and the question here posed does oat contradict; it leads to an answer which, is contradicted by the police statement. This argument of the learned Counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal procedure.
Therefore,, we are of the considered opinion that the impugned judgment cannot be sustained and the matter requires re-consideration.
In the result, we pass the following order:
The appeal filed fey the State is accepted. The impugned judgment is set aside. The matter is remanded to the trial Court for examination of accused under 313 Code of Criminal Procedure in accordance with law. The learned trial Judge shall answer points for determination, in the light of the observations made is this order and in accordance with law. The learned trial Judge shall decide the case on merits within, a period of six months from the date of receipt of a copy of this order. The accused were acquitted by the impugned judgment. The matter is under remand due to aforestated illegalities committed by the learned trial Judge. Therefore, the learned trial Judge shall extend the benefit of bail to accused, till the disposal of case, The accused shall execute bonds and offer sureties is the satisfaction of the trial Court.
The office is directed to send back the records along with a copy of the judgment, forthwith and a copy of the judgment shall also be sent to the. learned trial Judge, wherever he is working.