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Judgment
Crl.A. 1199/2006 is filed by the State for enhancement of sentence in C.C.No. 315/2004.
Crl.RP 2269/2006 is filed by accused No. 6 against judgment of conviction in C.C.No. 315/2004 confirmed by the I-appellate court in Crl.A 68/2006.
We have heard Sri.S.Balan, learned counsel for petitioner in Crl.RP 2269/2006 and Sri. N.S.Sampangiramaiah learned Government Pleader for State in Crl.A 1199/2006.
Harihar Rural Police had filed final report against accused No. 1 to 5 for offences punishable under Sections 143, 147, 443, 504, 323, 324 and 326 r/w 149 IPC.
The first witness for the prosecution namely PW. 1-Junjappa was partly examined on 13.09.2004. The learned Assistant Public Prosecutor made an application under Section. 319 Cr.P.C. to array one Rudresh as accused No. 6. The learned trial judge on hearing the learned Addl. Public Prosecutor and learned counsel for said Rudresh made an order reading as hereunder:
Alter accused No. 6 was summoned, the learned trial judge framed separate charge against accused No. 6. Thereafter, the trial judge proceeded with the trial from the stage where it had been stopped before the application u/s 319 Cr.P.C. was ordered. Thereafter, evidence of PW. 1 was recorded in full. Further, PW''s. 2 to 11 were examined, documents as per Ex. P1 to P8 and material objects as per MO''s. 1 to 4 were marked. The contradictory portions in the first information and statements of certain witnesses recorded u/s 161 Cr.P.C., were marked as per Ex. Dl to D10.
The learned trail judge on appreciation of evidence and on hearing the learned counsel for accused convicted accused No. 1 to 6 for offences punishable under Sections 143, 147, 448, 504, 323, 324 and 326 r/w 149 IPC.
The learned trial judge after hearing the learned counsel for parties passed the sentence reading as hereunder:
Heard regarding sentence.
The learned counsel for the accused has submitted hat the accused persons are the cousin brothers of the complainant, and the 6th accused is a KSRTC bus conductor and so, lenient view is to be taken. Taking into consideration the relationship between the complainant and the accused persons and also of the fact that the 6th accused is KSRTC Bus conductor, if maximum sentence is imposed, the life of the 6th accused will be spoiled. The 4th accused is aged about 60 years. So, the accused persons are not punished for ail the offences and instead of releasing the accused persons under P.O. Act, the accused persons are sentenced to pay a fine of Rs. 2,000/- each, in default of payment of fine, the accused persons are sentence to undergo simple imprisonment for 3 months. Out of the fine amount so collected, 50% of the amount is to be paid to the complainant by way of compensation. MO. 1 is ordered to be confiscated to the State and MO. 2 to 4 are ordered to be destroyed after the appeal period. The bail, bonds of the accused persons stands cancelled.
We have extracted the sentence passed by the trial court to indicate that, sentence is manifestly erroneous and it is no way nearer to the provisions of Section 354 Cr.P.C. The learned trial judge has ignored settled principles of law that, sentence is an integral part of judgment and judgment would be incomplete if the sentence is not passed in accordance with law. In the matter of sentence the court is bound by mandatory provisions of law and sentence provided for a given offence.
The learned trial judge appears to have passed the sentence under the impression that the discretion vests with the court to sentence the accused in the manner it deems fit. Therefore, we are of the considered opinion that judgment made by the trial court is contrary to mandatory provisions of Section 354 Cr.P.C.
In a decision reported in 1998 Crl. LJ 3574 it is held that :
Separate order of sentence is required to be passed against accused for each of the offence held proved and convicted.
Accused No. I to 5 were happy with fleabite sentence of fine of Rs. 2,000/- passed by the trial court. Therefore,
accused No. 1 to 5 did not prefer any appeal against judgment of the trial court.
The learned trial judge having convicted accused No. 1 to 6 for offences punishable under Sections 143, 147, 448, 504, 323, 324 and 326 r/w 143 IPC, passed the following sentence :
So, the accused persons are not punished for all the offences and instead of releasing the accused person under P.O. Act the accused persons are sentenced to pay a fine of Rs. 2,000/- each, in default of payment of fine, the accused persons are sentenced to undergo simple imprisonment for 3 months
Underlining supported by us
In our considered opinion, the sentence passed by the learned trial judge is illegal, innocuous and inane. The judgment, of the trial, court is incomplete. Therefore, we are of the opinion that the matter needs a remand to the trial court to pass sentence in accordance with law and to bring the judgment in conformity with the provisions of Section 354 Cr.P.C.
Now we will advert to the concurrent findings recorded against accused No. 6-Rudresh. As already stated accused No. 6 was summoned before the trial court pursuant to order made by the trial court u/s 319 Cr.P.C. The order made by learned trial judge indicates that there is no prima-facie evidence against accused No. 6. Yet, the learned trial judge has ordered that said Rudresh shall be arrayed as an accused. The order does not indicate the offences alleged to have been committed by accused No. 6 and accused No. 6 could be tried together with accused No. l to 5.
After the array of accused No. 6, the learned trial judge did not alter the charges framed against accused No. 1 to 5 to include accused No. 6 as one of the members of unlawful assembly which committed the alleged offences.
The learned trial judge has violated the mandatory provisions of Section 319 (4) (a) Cr.P.C. After the array of accused No. 6, PW. 1 who had been partly examined should have been examined afresh. In a decision reported in Shashikant Singh Vs. Tarkeshwar Singh and Another, the Supreme Court has held:
The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the: court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such, a person. They have to be examined afresh. Fresh examination in chief and not: only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319 (4).
Underlining supported by us
The learned Government Advocate appearing for the State would submit that the matter may be remanded to the trial court for proceeding against accused No. 6 for following the mandatory provisions of law u/s 319 (4) (a) Cr.P.C.
In the discussion made supra, we have held that the order made by the learned trial judge u/s 319 Cr.P.C., is self-contradictory. In the first part, of the order, the learned trial judge has stated that there is no prima-facie evidence against accused No. 6. In the operative portion, the learned trial judge has accepted the application filed u/s 319 Cr.P.C., to summon accused No. 6 even without indicating offences committed by accused No. 6.
In a decision reported in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, the Supreme Court has held:
This provision gives ample powers to any court to take cognizance and add any person not being an accused before it and try him alongwith the other accused. This provision was also the subject matter of a decision by this Court in Joginder Singh v. State of Punjab (1979) 2 SCR 306; Joginder Singh and Another Vs. State of Punjab and Another, where Tulzapurkar, J., speaking for the Court observed thus:-
A plain reading of section 319 (1), which occurs in chapter XXIV dealing with genera] provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before It, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused."
In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against, whom proceedings have been quashed have also committed, the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law.
Underlining supported by us
Therefore, we are of the considered opinion that order made by the trial court to array revision petitioner as accused No. 6 is not in accordance with Section 319 Cr.P.C. Even after accused No. 6 was arrayed, the learned trial judge had not shown awareness that he should be tried along with accused No. 1 to 5 by framing comprehensive charge against accused No. 1 to 6. The separate charges framed against accused No. 1 to 5 and accused No. 6 would indicate that the learned trial judge was not aware of the mandatory provisions to be followed after the array of accused No. 6. The learned trial judge has not followed the mandatory provisions of Section 319 (4) (a) Cr.P.C. Therefore, we are of the opinion that order made by the trial court u/s 319 Cr.P.C. cannot be sustained.
The learned judge of I-appellate court without considering the illegalities committed by "he trial court dismissed the appeal filed by accused No. 6. It appears, the learned judge of the I-appellate court Having noticed the fleabite sentence passed against accused No. 6 had thought, that accused No. 6 should be rest contended with fleabite sentence imposed by the trial court. Therefore, we are of the opinion that the judgments passed by the I-appellate court cannot be sustained
In the result, we pass the following:
ORDER
i) Crl.RP 2269/2006 is accepted.
ii) The judgment of I-appellate court is set aside. Accused No. 6 is acquitted of offences punishable under Sections 143, 147, 448, 504, 323, 324 and 326 r/w 149 IPC, fine amount, if any deposited by accused No. 6 shall be refunded to him,
iii) Crl. A 1199/2006 filed by the State is accepted. The judgment of trial court, as it relates to sentence imposed on accused No. 1 to 5 is set aside.
iv) The matter is remanded to the trial court to pass sentence after hearing accused No. 1 to 5 in the light of observations made herein and in accordance with law, within a period of six months from the date of receipt of copy of this judgment.
v) Liberty is reserved to accused no. 1 to 5 to challenge the judgment to be made by the trial court, if they so desire.
vi) The office is directed to send back the records along with a copy of this judgment to the trial court forthwith.