GIRDHARI SINGH Vs. STATE

JUDGEMENT

(1.) THIS is a second appeal directed against an order of the learned Addl. Sessions Judge, Jammu dated 9th March 2011 whereby the conviction of the accused persons Under Sections 326 and 323 R. P. C. recorded by the City Magistrate Jammu has been upheld. The learned Addl. Sessions Judge has, however, made some slight modification in the sentence as will be presently seen.

(2.) GIRDHARA Singh was convicted" Under Section 326, R, P. C. and was sentenced to undergo one year's rigorous imprisonment and a fine of Rs. 10/ -. Harnam Singh No. 1 and Harnam Singh No. 2 (accused 2 and 3) were convicted Under Section 323, R. P. C. and sentenced to six months' rigorous imprisonment and a fine of Rs. 5/- each by the trial Court. On appeal, the learned Addl. Sessions Judge reduced the one year's sentence of imprisonment passed on Girdhara Singh to six months, but maintained the fine with imprisonment in default thereof. The sentences of imprisonment passed on accused 2 and 3 (Harnam Singh No. 1 and Harnam Singh No. 2) were remitted and in their stead a fine of Rs. 100/-with one month's rigorous imprisonment in default of payment of fine was passed on each accused. The accused persons have now come up in second appeal to this Court.

(3.) ON facts the appellant's learned Counsel has conceded that there is evidence to support the finding arrived at concurrently by the Courts below. He has, however, raised a law point to the effect that the examination of the accused persons -after the recording of the evidence in de novo trial Under Section 350, Criminal P. C. was not strictly in accordance with the provisions of Section 342, Criminal P. C, and as such in the submissions of the learned Counsel the trial was vitiated. In support of this submission of his, he has referred me to 'akhtar Mohammad v. Emperor' AIR 1927 Lah 720 (A) and 'ajmer Singh v. State of Punjab', Before going into the question as to how far this ruling lends support to the submissions of the learned Counsel, it may be stated here in a -categorical manner that there is considerable force in the argument that in case the examination of the Accused does not conform to the requirements of S, 342, Criminal P. C. and thereby causes prejudice of an incurable character to the accused, the trial will be vitiated. But now let us see if such a result will follow in the present case, even according to the authorities quoted by the accused's learned Counsel. In AIR 1927 Lah 720 (A), the Magistrate after he had recorded the statements of the witnesses in a de novo trial, did not examine the accused afresh Under Section 342, Criminal P. C. This omission was held to be sufficient to vitiate the trial. It is a binding principle of law that an accused person must be afforded an opportunity to explain any circumstances which might appear against him after recording the prosecution evidence. But in the present case the accused were examined and opportunity as aforesaid was given to them after the prosecution evidence was recorded, and as such the Lahore ruling is not going to render any help to the accused. At second thought the accused's learned Counsel vehemently stressed the point that the questions put to the accused were defective in form and did not cover the points unfolded by the prosecution evidence against the accused and for which an opportunity should have been afforded to them to offer an explanation. I find force in this submission, but not to the extent of holding that the trial itself is vitiated thereby. The following are the questions and answers: Q: Have you heard the prosecution evidence ithat has been led against you? Do you want to give I any further statement? A: I have heard the prosecution evidence. I (have given a detailed statement on 12-3-2009. I do Inot want to give any further statement. It is obvious that it would have been much preferable if the questions were in a more detailed form. The appellant's learned Counsel has submitted that the manner in which the examination of the accused has been made Under Section 342, Criminal P. C, vitiates the trial itself. In support of his argument he has drawn my attention to 'air 1953 SC 76 (B)', in which it has teen held that: It is not sufficient compliance with the section to generally ask the accused that having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him. The questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. In the case before the Supreme Court the following questions and answers were recorded: Q: Did you make before the committing Magistrate the statement that has just now been read out to you? A: Yes. Q: Now that you have heard the entire evidence against yourself and the charge has been explained to you, do you wish to say anything else? A: I am innocent. Q: Do you wish to produce any evidence in defence? A: No. After having recorded their disapproval of the manner in which the examination of the accused was made, their Lordships of the Supreme Court arrived at the conclusion that the defective procedure followed by the Sessions Judge in examining the accused had not occasioned any prejudice to the accused. Their Lordships further found that the facts of the case before them were free from any complication and that the point in issue was a simple one, and that it could not be said that the perfunctory examination of the appellant did any damage. In the opinion of their Lordships it was well settled that every error or omission not in compliance with the provisions of Section 342, Criminal P. C. , does not vitiate a trial and that errors of this type fall within the category of curable irregularities, and that the question whether the trial is vitiated in each case depends upon the degree of the error and the prejudice it may have caused to the accused.