CRIMINAL APPEAL 61 of 1994 on 27 August 1991

1. Ramashish Singh, son of late Lakhan Singh

2. Chhote Lal Singh, son of late Ram Janam Singh.

3. Bilash Singh, son of late Ram Lakhan Singh

4. Amrendra Singh, son of Sri Bilash Singh

5. Vinoy Singh, son of Sri Ramjee Singh

6. Jatan Singh, son of late Sahdeo Singh

7. Anil Singh

8. Santosh Singh both sons of Sri Bigan Singh.

9. Nepali Singh alias Mithilesh Kumar Singh, son of Jai Singh @ ArunKumar Singh,All residents of Village-Kharhari, P.S. Mufassil, District-Gaya.

Versus

The State of Bihar

... ... Respondent/s

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withCriminal Appeal (DB) No. 138 of 1994

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Udai Singh @ Udai Kumar Singh, son of Sri Ramashish Singh, resident ofVillage-Kharahari, P.S. Mofassil, District-Gaya.

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s======================================================Appearance :For the Appellant/s:Mr. Ajay Kumar Thakur, Advocate Mr. Rakesh Kumar Singh, Advocate Mr. Rituraj Raman, Advocate Mr. Tej Nr. Singh, AdvocateFor the Respondent/s: Mr. Abhimanyu Sharma, A.P.P.

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CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAYORAL JUDGMENT(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 07-11-2017

Challenging their convictions for various offences underSections 302/149, 307, 452 of the Indian Penal Code and 27 of theArms Act and sentencing them to undergo rigorous imprisonmentfor life, these appeals have been filed under Section 374 (2) of theCode of Criminal Procedure.

In Criminal Appeal No.61 1994, the sole appellant ManojSingh has been convicted to undergo rigorous imprisonment forlife under Section 302/149 of the Code, seven years rigorousimprisonment for offence under Section 307 of the Code and threeyears rigorous imprisonment for offence under Section 452 andfive years rigorous imprisonment for offence under Section 27 ofthe Arms Act. The sole appellant Udai Singh @ Udai Kumar Singhin Criminal Appeal No.138 of 1994 has been convicted to lifeimprisonment for offence under Section 302/149 of the Code andlife imprisonment for offence under Section 302 of the Code andthree years rigorous imprisonment for offence under Section 452of the Code and five years rigorous imprisonment for offenceunder Section 27 of the Arms Act, whereas appellants nine in number in Criminal Appeal No.63 of 1994 have been convicted torigorous imprisonment for life for offence under Section 302/149of the Code, two years rigorous imprisonment for offence underSection 148 of the Code and one year for offence under Section147 of the Code. However, in this appeal, appellant no.1Ramashish Singh, appellant no.3 Bilash Singh and appellant no.6Jatan Singh have expired and their appeals stand abated. All ofthem have been convicted by a judgment rendered on 31[st] January,1994 by the Additional District and Sessions Judge I, Gaya inSessions Trial No.458/120 of 1992.

Arguments

It is the case of the prosecution that informant Subodh KumarP.W.14 lodged the FIR to the effect on 27.08.1991 at 8 P.M. inVillage Kharhari to the Assistant Sub-Inspector of Police, P.W.18that a calf belonging to accused Vijoy Singh was grazing in thepaddy field when the informant’s brother Binod Kumar, P.W.15,chased it away. Annoyed by this act of Binod Kumar, accusedUdai Singh and Vijoy Singh, both sons of Ramashish Singh of thesame village, assaulted Binod Kumar by slapping him. After thisincident took place when P.W.12 Narain Sao, father of theinformant, came back to the village from town and when he wentto enquire about the incident to the house of the accused persons,he met Udai Singh on the way and when he enquired about the incident, it is alleged that Udai Singh called the other accusedpersons who came armed with deadly weapons. Udai Singh armedwith a gun ordered to surround Narain Sao, Narain Sao ran,entered into his house, shut the door and started raising alarm fromhis courtyard. It is said initially the accused persons tried to breakopen the door, but when they failed, Udai Singh and Manoj Singhclimbed on the roof, Udai Singh shot at Shivpujan Sao, deceased,and Manoj Singh shot at Shiv Sagar Sah, injured P.W.17 and theyran away. Based on the aforesaid information, FIR was lodged andthe prosecution was initiated.

Ext.1 is the FIR and the prosecution examined 19 witnessesin support of the case. The witnesses included P.W.2, an eyewitness to the incident and P.W.8, another eye witness to theincident, namely Rameshwar Sao and Parmeshwar Sao, apart fromP.W.5 Kishori Sao, who saw the incident. P.W.5 and P.W.8 are saidto have seen the incident from the roof top of their house andP.W.2 Rameshwar Sao also saw the incident from the roof top ofhis house and according to them Udai Singh and Manoj Singh hadfired the shot. Udai Singh is said to have caused the injuryresulting into death of Shiv Pujan Sao after two days treatment inthe hospital and Manoj Singh is said to have caused injury to Shiv Sagar Sao, P.W.17, for which he is convicted under Section 302 ofthe Indian Penal Code.

Even though, learned counsel for the appellants took usthrough the statements of the informant and the investigatingofficer and tried to demonstrate that there are two sets of stories,two different FIRs have been lodged and the lodging of the FIR invillage Kharhari at the place of the incident is not proved, heemphasized that in this case, statutory and mandatory requirementof the provision of Section 313 of the Code of Criminal Procedurehas not been complied with. He placed reliance on a judgment ofHon’ble the Supreme Court in the case of Sukhjit Singh v Stateof Punjab [(2014) 10 SCC 270] and the judgments relied upon inthe said case, namely Ranvir Yadav v. State of Bihar [(2009) 6SCC 595]; Tara Singh v State [AIR 1951 SC 441]; and HateSingh Bhagat Singh v. State of Madhya Bharat [ AIR 1953 SC468] and Ajay Singh v. State of Maharashtra [ (2007) 12 SCC341], to say that that as the statutory and mandatory requirement ascontemplated under Section 313 of the Code of CriminalProcedure has not been fulfilled in this case, the entire case of theprosecution fails as the trial stands vitiated.

Learned counsel for the State took us through the statementof P.Ws 2, 5 and 8 to show that the case of the prosecution isproved.

We have considered all the aspects in detail and we find thatas far as the appellants in Criminal Appeal No.63 of 1994 areconcerned, three of the appellants therein, namely RamashishSingh, Bilash Singh and Jatan Singh, have expired and against theremaining six appellants, namely Chhote Lal Singh, AmrendraSingh, Vinoy Singh, Anil Singh and Santosh Singh and NepaliSingh alias Mithilesh Kumar Singh, except for indicating theirpresence by omnibus statement, no specific overtact is attributed tothem. The main allegation is against the appellant Udai Singh inCriminal Appeal No.138 of 1994 and Manoj Singh in CriminalAppeal No.61 of 1994 and if we analyse the statement of these twoappellants recorded under Section 313 of the Code of CriminalProcedure, we find that to both these appellants only two questionshave been put with regard to complying with the statutoryrequirement of Section 313 of the Code of Criminal Procedure, i.e.recording the statement of the accused persons. The first questionput to them is to the effect that it is alleged against you that on27.08.1991 at village Kharhari, police station Mufassil, District-Gaya, you along with your associates with common intention formed an unlawful assembly, armed with gun and otherinstruments entered the house of the complainant-informantSubodh Kumar and by climbing on the roof top fired shot therebycausing injury to Shiv Sagar Sah and Shiv Pujan Sah. The secondquestion asked is that you have heard the witnesses what is yourexplanation. These are only two questions asked not only to theseappellants, but also to all the appellants. In fact, cyclostyle formquestion, as indicated hereinabove is put to each of the appellant.That in sum and substance is the compliance made with regard tofulfilling the statutory requirement under Section 313 of the Codeof Criminal Procedure.

Now, if we analyze the law laid down by the Hon’bleSupreme Court with regard to complying the statutory requirementof Section 313 of the Code of Criminal Procedure, we find that inthe case of Tara Singh (supra) in para 30, Hon’ble Supreme Courtemphasizes strongly the importance of observing faithfully andfairly the provisions of Section 342 of the Criminal ProcedureCode as was then existing and holds that it is not a propercompliance to read out a long string of questions and answersmade in the committal court and thereafter ask as to whether thesame is correct. The Supreme Court further says that it is also notsufficient compliance to string together a long series of facts and ask the accused what he has to say about them. The Supreme Courtholds that the accused must be questioned separately about eachmaterial circumstances which is intended to be used against him. Itis held by the Supreme Court that the whole object of Section 342is to afford the accused a fair and proper opportunity of explainingthe circumstances which appear against him. It is held that thequestion must be fair and must be couched in such a form that anignorant or illiterate person will be able to appreciate, understandand gave his explanation. It is held that if the requirement of thesection is not followed, grave prejudice is caused to the accusedand the trial stands vitiated on this count.

Conclusion

Thereafter, again in the case of Hate Singh Bhagat Singh(supra), the same principle has been reiterated and, finally, in thecase of Ajay Singh (supra), it is held that the questions put to theaccused must be framed in such a way so as to enable the accusedto know what he has to explain, what are the circumstances againsthim for which explanation is needed. It is held by the Hon’bleSupreme Court in the aforesaid case that the whole object of thisSection is to afford to the accused a fair and proper opportunity ofexplaining the circumstances which appear against him and thesame principle as laid down by the Hon’ble Supreme Court in thecase of Tara Singh (supra) is reiterated. After considering all the three judgments as indicated hereinabove in the case of SukhjitSingh (supra), the Hon’ble Supreme Court holds that afteranalysing the enunciation of law, there is no scintilla of doubt thatwhen the requisite questions have not been put to the accused ithas caused immense prejudice to him and the trial stands vitiated.

If that is the legal principle laid down by the Hon’bleSupreme mandating the requirement of compliance with Section313 of the Code of Criminal Procedure and when we analyze theaforesaid compliance in the present case, we have no hesitation inholding that the mandatory requirement of law in this case has notbeen complied with and if it has caused prejudice to the accused,on this count alone, the entire conviction stands vitiated.

Accordingly, we allow this appeal, quash the order of thetrial Court convicting the appellants, acquit them of all the chargeslevelled against them. Their bail bonds be discharged and they beset free.

(Rajendra Menon, CJ)

(Anil Kumar Upadhyay, J)

Sunil/-

AFR/NAFRNAFRCAV DATENAUploading Date11.11.2017Transmission Date11.11.2017