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2015 Supreme(Pat) 569
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Shyam Kumar @ Shyama Yadav & Anr. – Appellants
Versus
The State of Bihar (in both) – Respondents
CA (DB) No.1083, 1134 of 2007
Decided on : 07.07.2015
Advocate Appeared:
For the Appellants : Mr. Prem Chand Yadav, Mr. Arbind Kumar Singh (in 1083), Mr. Sanjiv Kumar (in 1134)
For the Respondents Amicus Curiae: Mrs. Shashi Bala Verma, Mr. Ashhar Mustafa (in 1134)
The mandatory requirement of a de novo trial for newly added accused under Section 319(4) of the CrPC.
Headnote:
The court discussed the scope and ambit of Section 319(4) of the Code of Criminal Procedure (CrPC) and provided a concise summary of the relevant facts of the case. The court held that the trial of the appellants in Sessions Trial No. 230 of 1999 was vitiated due to non-compliance with the mandatory provisions of Section 319(4) of the CrPC, which requires a de novo trial for newly added accused. The court also held that the trial of the appellants in Sessions Case No. 230A of 1999 was not vitiated, as the separation of their trial from the original Sessions Trial No. 230 of 1999 was not illegal. The court further held that the prosecution failed to prove its case beyond reasonable doubt, and therefore, the appellants were entitled to acquittal. The court also discussed the principles governing the grant of retrial and concluded that, in the circumstances of the case, a retrial would not be in the interests of justice.
Fact of the Case:
The case involved two separate trials arising from the same incident: Sessions Trial No. 230 of 1999 and Sessions Case No. 230A of 1999. In Sessions Trial No. 230 of 1999, the appellants, Shyam Kumar @ Shyama Yadav and Ram Kumar @ Rama Yadav, were initially not charged but were later summoned under Section 319 of the CrPC. In Sessions Case No. 230A of 1999, the other appellants, Hirday Yadav and Dasrath Yadav, were tried separately. The prosecution's case was based on the testimony of eyewitnesses who claimed to have seen the appellants commit the murder. The appellants challenged the validity of the trial proceedings and the sufficiency of the evidence against them.
Finding of the Court:
The court held that the trial of the appellants in Sessions Trial No. 230 of 1999 was vitiated due to non-compliance with the mandatory provisions of Section 319(4) of the CrPC, which requires a de novo trial for newly added accused. The court also held that the trial of the appellants in Sessions Case No. 230A of 1999 was not vitiated, as the separation of their trial from the original Sessions Trial No. 230 of 1999 was not illegal. The court further held that the prosecution failed to prove its case beyond reasonable doubt, and therefore, the appellants were entitled to acquittal.
Issues: 1. Whether the trial of the appellants in Sessions Trial No. 230 of 1999 was vitiated due to non-compliance with the mandatory provisions of Section 319(4) of the CrPC? 2. Whether the trial of the appellants in Sessions Case No. 230A of 1999 was vitiated? 3. Whether the prosecution proved its case beyond reasonable doubt?
Ratio Decidendi: 1. The court held that the trial of the appellants in Sessions Trial No. 230 of 1999 was vitiated due to non-compliance with the mandatory provisions of Section 319(4) of the CrPC, which requires a de novo trial for newly added accused. The court relied on the Supreme Court's decision in Shashikant Singh v. Tarkeshwar Singh & Anr. [(2002) 5 SCC 738], which held that the proceedings against a newly added accused under Section 319 of the CrPC must commence afresh, and witnesses must be re-examined. 2. The court held that the trial of the appellants in Sessions Case No. 230A of 1999 was not vitiated, as the separation of their trial from the original Sessions Trial No. 230 of 1999 was not illegal. The court noted that the appellants were absconding at the time of the initial trial and that the trial court had the discretion to split up the trial. 3. The court held that the prosecution failed to prove its case beyond reasonable doubt. The court found that the testimony of the eyewitnesses was unreliable and that the medical evidence did not support the prosecution's case. The court also noted that the investigation of the case was tainted.
Final Decision: The court set aside the convictions and sentences of the appellants in both Sessions Trial No. 230 of 1999 and Sessions Case No. 230A of 1999. The court also directed the release of the appellants who were in custody.
These two appeals arise out of two separate judgments of conviction and orders of sentence all dated 18.08.2007 passed by the learned Additional Sessions Judge FTC - II, Munger in Sessions Trial No.230 of 1999 and Sessions Case No. 230A of 1999, both arising out of Muffasil P.S.Case No. 244 of 1997, by which the two appellants in each of the two appeals were held guilty of committing offence under Section 302 read with 34 of the Indian Penal Code (for short IPC) as also Section 27 of the Arms Act. Each of the four convicts was sentenced to undergo R.I. for life under Section 302 read with 34 IPC and R.I. for three years under Section 27 of the Arms Act. The sentences were ordered to run concurrently.
2. At the very outset, let it be mentioned that these appeals had been heard analogous by a Division Bench of this Court but the learned Judges were divided in their opinion expressed in the order dated 12.03.2015 on the scope and ambit of Section 319(4) of the Code of Criminal Procedure (for short the Code‘), and the result of the appeal (Cr.Appeal (DB) No. 1134 of 2007). The matters have thus been referred to this Bench by Hon‘ble the Chief Justice in terms of Section 392 of the Code, and that is how this Bench has been called upon to decide, determine and adjudicate the appeals as mandated by section 392 of the Code.
3. At this stage, I think it appropriate to record that both the learned Judges of the Division Bench have set aside the judgment of conviction by the court below so far as it relates to the appellants of Cr.Appeal (DB) No. 1083 of 2007, namely, Shyam Kumar @ Shyama Yadav and Ram Kumar @ Rama Yadav and directed for their retrial by taking evidence of all the witnesses afresh. To that extent, there is no conflict in the opinion of the two learned Judges. However, the conflicting views as regards the retrial of the appellants of Cr.Appeal (DB) No. 1134 of 2007, namely, Hirday Yadav and Dasrath Yadav, expressed by the two learned Judges of this Court, as also their conflicting views on the scope and ambit of section 319(4) of the Code, has occasioned reference of the matter before this Single Bench under section 392 of the Code.
4. Both the learned Judges were of the view in Cr.Appeal (DB) No. 1083 of 2007 that in the light of the provisions prescribed under section 319(4) of the Code the proceedings in respect of the newly added accused has to commence afresh and the evidence (examination-in-chief), which was recorded in absence of the appellants Shyam Kumar @ Shyama Yadav and Ram Kumar @ Rama Yadav ought not have been used against them for recording their conviction.
5. However, in respect of the appellants of Cr.Appeal (DB) No. 1134 of 2007 Hirday Yadav and Dasrath Yadav, in the opinion of learned Brother Dharnidhar Jha,J., the trial ought to have been held afresh together with the newly added accused summoned under section 319 of the Code. He has set aside the judgment of conviction passed by the trial court and directed the retrial of all the four appellants together in one trial by taking evidence of all the witnesses afresh. The operative part of the order recorded by him in paragraphs 10 to 12 are as under :-
“10. In that view of the matter I hereby set aside the judgment of conviction passed by the learned court below and direct the re-trial of all the four appellants together on one trial by taking evidence of all the witnesses afresh.
11. The judgment of conviction and order of sentence are accordingly set aside by allowing the appeal and by ordering re-trial of the accused persons.
12. While perusing the records, what I found was that the original accused, namely, Hirday Yadav and Dasrath Yadav had been tried in Sessions Trials No.230 of 1999, but the other two accused, namely, Shyam Kumar @ Shyama Yadav and Ram Kumar @ Rama Yadav were charged together in a separate case bearing Sessions Trial No.230A of 1999. I could not appreciate as to how the trial of the newly added accused, summoned under Se
