Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 1199

IN THE HIGH COURT OF ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Ishaque – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.5977 of 2019
Decided on : 29-11-2021

Advocates:
Advocate Appeared:
For the Appellant : S.K. Agrawal, Pushpendra Singh

Point of Law: Whenever a plea of non-compliance with Section 313 Cr.P.C. is raised, it is within powers of appellate court to examine and further examine the convict or counsel appearing for accused and the said answers shall be taken into consideration for deciding matter. If the accused is unable to offer appellate court any reasonable explanation of such circumstance, court may assume that accused has no acceptable explanation to offer.

Headnote:
Indian Penal Code, 1860 - Sections 302 - Criminal Procedure Code, 1973 - Section 164, 281 and 313 - Arms Act - Section 4/25 - Power to examine accused - Interpretation of evidence to accused or his pleader – Offence of Murder – Appeal against conviction - Whether it caused serious prejudice to appellant thereby vitiating the order of conviction - Whether examination of accused-appellant under Section 313 Cr.P.C. was in the manner mandated by law - Alleging that two days before, in evening, deceased, a rickshaw puller, on his rickshaw, came with a lady, a man and a child - Claiming that the lady is his sister, man is his brother-in-law- appellant asked for a room from informant (PW2) to stay for two days on pretext that their own abode (hutment) would be ready in two days - It is alleged that on that request, PW2 gave them a room to stay - It is alleged in FIR that in morning, PW2 and his wife (not examined) heard noise - When they came out of their room, they saw rickshaw puller lying dead in a pool of blood, with his throat/neck slit, and his brother-in-law (appellant) having a big blood-stained knife in his hand. Soon thereafter, appellant ran away with the knife, leaving his wife behind.
Finding of the court:
There is nothing in Code which may indicate that provisions of sub-sections (3) and (4) of section 281 of Code would not apply when there is an examination of accused under section 313 of the Code - Language and manner in which those circumstances are put to accused assumes importance as that enables a person to have a clear picture of circumstances which he has to explain. An incriminating circumstance appearing in evidence not put to the accused to have his explanation is ordinarily to be eschewed from consideration - An analysis of evidence to find out whether it would lead to conviction of appellant or not would be an exercise in futility. Further, at this stage, an exercise to record fresh statement of accused-appellant, or his counsel, under Section 313 Cr.P.C., or remit the matter back to trial court, to cure the defect, would not be justified as, according to certificate of the Senior Superintendent, Central Jail, appellant has already served 30 years, 04 months and 03 days in prison. Any fresh exercise to cure defect, after such a long gap, would be travesty of justice - Once we eschew circumstances not put to accused in manner required by law, nothing much remains to sustain order of conviction rendered by trial court - It is clear that examination of appellant under Section 313 Cr.P.C. was not in respect of circumstances that appear against him in prosecution evidence. Rather, appellant was merely apprised as to who have testified against him and what documents were produced by the prosecution. As to what their testimony had been and what documents contained and related to, were not put to appellant. We are therefore of the considered view that the circumstances appearing in the prosecution evidence against the accused-appellant were not put to the accused in the manner required by law.
Result: Appeal allowed

JUDGMENT :

Manoj Misra, J.

1. This appeal is against a composite judgment and order dated 12.06.1996 passed by Ninth Additional District & Sessions Judge, Ghaziabad in two connected Sessions Trial Nos. 147 of 1991 and 149 of 1991 whereby, the appellant-Ishaque has been convicted under Sections 302 I.P.C. and section 4/25 Arms Act, respectively; and has been punished as follows: (i) under Section 302 I.P.C., life imprisonment with fine of Rs. 2,000/-and a default sentence of six months R.I. and (ii) under Section 25/4 Arms Act, two years R.I. with fine of Rs. 500/-and a default sentence of one month R.I. Both sentences to run concurrently.

INTRODUCTORY FACTS

2. (i) At 6.10 hours on 29.01.1991, Rajendra Kumar (PW-2) gave a written report (Ex. Ka-1), which was lodged as first information report (FIR) (Ex. Ka-4) at P.S. Shahibabad, District Ghaziabad, alleging therein that two days before, in the evening, at about 7.00 pm, Arun Jeev @ Bhaloo Sham (the deceased), a rickshaw puller, on his rickshaw, came with a lady, a man and a child. Claiming that the lady is his sister (Ayesha), the man is his brother-in-law (Ishaque Matwar -the appellant), Arun Jeev asked for a room from the informant (PW2) to stay for two days on the pretext that their own abode (hutment) at Nai Seemapuri would be ready in two days. It is alleged that on that request, PW2 gave them a room to stay. It is alleged in the FIR that in the morning of 29.01.1991, at about 5 am, PW2 and his wife Ruparani (not examined) heard noise. When they came out of their room, they saw the rickshaw puller (Arun Jeev) lying dead in a pool of blood, with his throat/neck slit, and his brother-in-law (Ishaque-appellant) having a big blood-stained knife in his hand. Soon thereafter, the appellant ran away with the knife, leaving his wife Ayesha behind.

(ii) Inquest was conducted at about 8 am at the place of the incident. Inquest report (Ex. Ka-8) was witnessed by Sameeruddin (PW-3); Ali Hasan; Afsar Ali (PW-5); Jameel Ahmad; and Raj Kumar.

(iii) S.I. Govind Krishna Dwivedi (PW-8) reached the spot, prepared site plan (Ex. Ka-7), collected blood in a small tobacco box and blood-stained piece of carpet. Recovery memo (Ex. Ka-2) was witnessed by Sameerudin (PW-3) and Afsar Ali (PW-5). Autopsy was conducted on the same day at about 5 pm. The autopsy report (Ex. Ka-3) prepared by PW-6 noticed: an incised wound 12 cm x 5.0 cm x bone deep on the front of neck 4.0 cm below to chin; 6.0 cm above Supra Sternal notch; 5.0 cm below to right ear; and 6.0 cm below to left ear, margin clear cut; larynx, trachea and oesophagus cut, through and through; and heart empty. Semi-digested food was found in the stomach. Small intestine and large intestine were half filled. Opinion was that death was due to shock and haemorrhage as a result of ante-mortem injury. Estimated time of death was three-fourth of a day before.

(iv) On 30.01.1991, at about 1.20 pm, in the presence of witness Raj Kumar and Ibrahim (PW-4), on the pointing out of the accused, allegedly, a blood-stained knife, wrapped in a cloth, was recovered from a stack of bricks near the wall of premises No. 161 A, Shalimar Park, Pradeep Trading Comp. A memo (Ex. Ka-3) of that recovery and site plan (Ex. Ka-15) of that recovery was prepared by PW-8.

(v) Investigation was completed by Jitendra Pal Singh (not examined as a witness because he had died in an encounter) and a charge-sheet (Ex. Ka-6) was submitted, which was proved by H.C. Brijlal Singh (PW-7).

(vi) S.S. Guha (PW-9) recorded the statement of Ayesha under Section 164 of the Code of Criminal Procedure, 1973 (for short Cr.P.C. or the Code). P.W.9 stated that Ayesha could only speak in Bangla language therefore, her statement was recorded with the help of a translator/ interpreter. On PW-9’s statement, statement of Ayesha was marked Ex Ka-7.

(vii) On recovery of the knife, a separate case under Section 25 Arms Act was registered. Investigation of which was assigned to S.I. Mahendra Singh Tyagi (not exam