VAIJINATH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The appellant and two others stood charged before the Court of sessions at Bidar under Sections 302,307,324 and 323 read with Section 34, IPC. The charge was that on 26-9-1989 at about 8 a.m. at village Warwatti in Bidar district all the three accused inflicted fatal injuries on Goraknalh wilh axe and sticks with the common intention of causing his death and he succumbed to the injuries on the same day afternoon in the district hospital, Bidar. In the same incident, with the common intention of committing the murder of another person Ram, son of Goraknath, they did assault him with axe and sticks and attempted to commit his murder. In furtherance of the common intention they caused hurt with these deadly weapons to Jana Bai, wife of Goraknath, they also caused hurt to Laxman, son of Goraknath and Manik, son of Sangappa and committed an offence under Section 324 read with Section 34, IPC. Similarly, CW 14 Kishen was assaulted by them with sticks and hence charged under Section 323 read with Section 34, TPC. Thus, in this incident P.Ws 1 to 5 were injured in addition to Goraknalh suffering fatal injuries to which he succumded later. On close of evidence, the trial court heard the accused under Section 235(2), Cr. P.C. found that they were not entitled to acquittal and as the accused had no defence evidence to lead, proceeded to hear arguments. Earlier to it, statement under Section 313, Cr. P.C. was recorded. It found A-l guilty under Section 302, IPC, convicted him for the said offence and sentenced to imprisonment for life. It has further convicted him under Section 324, IPC for having caused hurt to P.W. 2 with axe. A-1 and A-3 were also found guilty under Section 323, IPC for having caused hurt to P.Ws. 1, 3, 4 and 5 and sentenced to two years R.I. each. Giving set off under Section 428, Cr. P.C. A-2 and A-3 were ordered to be released as they were deemed to have suffered the sentence imposed by the trial court in view of their detention during trial for more than two years. In this appeal the accused No. 1 is the appellant The other two accused persons have not chosen to prefer any appeal.

(2.) Our attention was drawn by the appellant's counsel when we took up the casefor bearing, to the illegality committed by the learned sessions Judge in recording a joint statement of all the accused persons under Section 313, Cr. P.C. on close of evidence. Though some of the circumstances in evidence were against one or the other accused individually and such circumstance was put to such accused in the joint statement the fact that the accused were not individually, distinctly and separately questioned on the circumstances appearing against them in evidence is borne out on record. Whether such a course was open to be adopted by the learned Judge or whether the trial itself was vitiated on account of infringement of the provisions of Section 313, Cr. P.C. is the initial question that we have to address ourselves. Even the learned State Public Prosecutor endorses the contention of the appellant's counsel inasmuch as even according to him it was mandatory to the learned Judge to examine each of the accused individually on the circumstances appearing against him in evidence. He also brought to our notice that such a course is followed by the learned Judge even in some other cases which came up before this Court and hence infringement of the provisions of Section 313, Cr. P.C. has almost become a habit with the learned Judge. We have recalled to our mind two other cases in which such course was adopted were disposed of by us in appeals. At this stage, it will be necessary to refer to the provisions of Section 313, Cr. P.C. to understand the importance and significance attached to the questioning of the accused to enable him to explain any circumstances appearing in the evidence of the witnesses. The provision reads as follows:

(3.) The Lahore High Court as far back as in the year 1926 in the case ofMusammat Ghasiti and Another v Emperor, 27 Criminal Law Journal 408 relying on a decision in the case of Allu v Emperor, 75 Indian Cases 980 observed that because the Magistrate in that case did not examine each accused separately but recorded their statements collectively which was forbidden by Section 364 of Criminal Procedure Code, 1898 trial itself was vitiated. The learned Chief Justice Sri Shadi Lal concluded the Judgment with the following observations: