Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 1639

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
VIBHA KANKANWADI, ABHAY S. WAGHWASE, JJ.
Nasib Osman Pathan – Appellant
Versus
The State of Maharashtra, Through The Police Station Officer, Police Station, Bidkin, Tq. Paithan, Dist. Aurangabad – Respondent
Criminal Appeal No.805 Of 2018
Decided On : 19-12-2023

Advocates Appeared:
For the Appellant : Ms. Anuradha S. Mantri.
For the Respondent: Mrs. Uma S. Bhosale.

Non-compliance with the mandatory provisions under Section 313 of the Code of Criminal Procedure and the resulting prejudice to the accused.

Headnote:
Indian Penal Code - Conviction under Section 302 - 302 - The court found that the trial judge failed to comply with the mandatory provisions under Section 313 of the Code of Criminal Procedure, causing prejudice to the accused. The conviction was set aside, and the matter was remanded to the trial court for a fresh proceeding from the stage of recording the accused's statement under Section 313 of the Code of Criminal Procedure.
Fact of the Case:

The appellant challenged his conviction under Section 302 of the Indian Penal Code. The prosecution's case was based on two dying declarations and other circumstantial evidence. The trial judge sentenced the accused to life imprisonment based on the dying declarations and other evidence.
Finding of the Court:

The court found that the trial judge failed to comply with the mandatory provisions under Section 313 of the Code of Criminal Procedure, causing prejudice to the accused. The conviction was set aside, and the matter was remanded to the trial court for a fresh proceeding from the stage of recording the accused's statement under Section 313 of the Code of Criminal Procedure.
Issues: Non-compliance with the mandatory provisions under Section 313 of the Code of Criminal Procedure and the resulting prejudice to the accused.
Ratio Decidendi: The stage of putting incriminating circumstances to the accused and recording his statement under Section 313 of the Code of Criminal Procedure is not an empty formality. Failure to put material circumstances to the accused and record his statement in accordance with the law can cause prejudice to the accused and may necessitate a retrial.
Final Decision: The conviction was set aside, and the matter was remanded to the trial court for a fresh proceeding from the stage of recording the accused's statement under Section 313 of the Code of Criminal Procedure.

JUDGMENT :

(Vibha Kankanwadi, J.)

1. Present appeal has been filed by the original accused challenging his conviction by learned Additional Sessions Judge, Aurangabad in Sessions Case No.148/2014, thereby convicting him for the offence punishable under Section 302 of the Indian Penal Code, 1860 on 12.12.2017.

2. What is emerging to be the admitted fact from the record is that deceased Seema got married to accused and they were the only two persons residing at Paithan Ves, Bidkin. Seema was doing the work of preparing food and washing utensils in the canteen of a private company.

3. The prosecution has come with a case that Seema was admitted to GHATI, Aurangabad on 13.01.2014. After the Medico Legal Certificate was given, her statement was recorded at 5.30 p.m. by Police Head Constable Khajekar of Bidkin Police Station. In her statement Seema disclosed that her husband is not doing any work to earn money, however, he used to demand money to her for drinking liquor. When she used to refuse to give money to him, he used to abuse her and ask her to go to her parents house. She has further stated that she came home in the evening from the work on 12.01.2014. She washed the clothes and utensils and prepared food. She was waiting for accused to arrive by lying down on bed. Accused came around 8.00 p.m. and started demanding money to her. When she refused, he started saying that he is not in need of such betrayer wife and then he poured kerosene from bottle on her person. She thought that it is water, but immediately he lighted the matchstick and threw it on her. When her clothes caught fire, she got up and poured water on her person and doused the fire. She has stated that if she would not have done that, husband would have killed her by ablazing. Her husband fled away from the spot. Her maternal aunt and maternal uncle took her to Bidkin Government Hospital first and then shifted her to GHATI, Aurangabad. She has sustained burn injuries, but she gave the statement when she was in conscious state.

4. The said statement of deceased Seema was treated as First Information Report and offence vide Crime No.8/2014 was registered under Section 307, 498-A of the Indian Penal Code.

5. In the meantime, it appears that the Executive Magistrate was also informed to take dying declaration of Seema and, therefore, her statement was recorded by Executive Magistrate between 2.40 to 3.05 p.m. on 14.01.2014.

6. After the investigation was taken up, panchnama of the spot was got executed, statements of certain witnesses were recorded, however, it appears that Seema succumbed to the injuries on 17.01.2014 and thereafter after executing inquest panchnama her dead body was sent for postmortem. After the provisional certificate was issued, offence under Section 302 of the Indian Penal Code came to be added. The clothes of the deceased as well as accused came to be seized and prior to that accused came to be arrested. The accused had shown the spot under Section 27 of the Indian Evidence Act and the memorandum and panchnama has been executed. The seized clothes and other articles were sent to chemical analysis. Further statements of witnesses were recorded, documents have been collected and after the completion of investigation charge sheet was filed.

7. The accused was never released on bail and after the committal of the case charge was framed. After denial to plead guilty by the accused, trial has been conducted. The prosecution has examined in all 14 witnesses to bring home the guilt of the accused. After considering the evidence on record and hearing both sides the learned trial Judge has held that the prosecution has proved offence under Section 302 of the Indian Penal Code against the accused beyond reasonable doubt. The accused came to be sentenced to suffer imprisonment of life and to pay fine of Rs.2,000/-(Rupees Two Thousand only), in default to suffer simple imprisonment for two months for the offence punishable under Section 302 of the Indian Penal C