Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 2042

IN THE HIGH COURT OF ALLAHABAD
Ashwani Kumar Mishra, Nand Prabha Shukla, JJ.
Sonu @ Paua @ Beedi and another - Appellants
Versus
State of U.P. - Respondent
Capital Cases No. 9 of 2020, Reference No. 6 of 2020 and Capital Cases No. 2 of 2021 and Government Appeal No. 23 of 2021
Decided On : 09-11-2023

Advocates:
Advocate Appeared:
For the Appellant : From Jail, Mohd. Raghib Ali, Raj Kumar Kesari, Saghir Ahmad
For the Respondent: A.G.A., Chandrajeet and Mohd Afzal

IMPORTANT POINT
The judgment underscores the importance of adhering to procedural requirements in recording witness statements and ensuring the accused's right to explain incriminating evidence.

Headnote:
Criminal - Confirmation of Death Sentence - Cr.P.C. Sections 276, 313; Evidence Act Sections 119, 165 - The court emphasized the necessity of proper recording of witness statements and the accused's right to explain incriminating circumstances, leading to the decision to remand for fresh recording.
Fact of the Case:
The case involved a young lady who was sexually assaulted and murdered, with her brother injured. The conviction relied heavily on the testimony of the injured brother, whose statement was inadequately recorded, prompting the court's review.
Finding of the Court:
The court found that the statement of the injured brother (PW-5) was not recorded in accordance with legal requirements, making it difficult to rely on his testimony. The court decided to remand the case for proper recording of evidence.
Issues: Whether the recording of the witness's statement and the accused's statement complied with the legal standards set forth in the Cr.P.C. and the Evidence Act.
Ratio Decidendi: The court held that the failure to properly record witness statements and the accused's right to explain incriminating evidence constituted a significant procedural error that could not be overlooked, especially in capital cases.
Result: The court remanded the case for the proper recording of witness statements and the accused's statement under the Cr.P.C.

JUDGMENT :

Ashwani Kumar Mishra, J.

This Court is ceased of proceedings under Section 366 of the Cr.P.C. for confirmation of death sentence awarded to the accused appellants, as well as the appeals filed by the accused against their conviction and sentence. The confirmation proceedings were placed earlier before the Court on 28.4.2023. It transpired that a young lady was subjected to sexual assault and then done to death in an incident occurred on 6.9.2018. The younger brother of the deceased was assaulted with a knife and his throat was cut. The injured brother temporarily lost his voice. This brother was produced during the trial as PW-5. Heavy reliance is placed upon the statement of PW-5 for conviction and sentence of the accused appellants.

2. When the statement of PW-5 was placed before this Court, it was seen that his statement was noted in such a manner that the substance of his statement could not be deciphered.

3. We deem it appropriate to reproduce pages 74 and 78 of the paper book, as it reveals the manner in which the statement was recorded. Pages 74 and 78 are reproduced hereinafter :

4. Though the Trial Judge had connected the answers to various questions posed to PW-5, but since the questions and answers scripted were not relatable, as such this Court found it difficult to rely upon the statement of PW-5 in respect of the incident. A detailed order was accordingly passed on 28.4.2023 for the statement of PW-5 to be recorded again, which is reproduced hereafter :

''1. Heard Sri Saghir Ahmad, learned Senior Counsel, as Amicus Curiae, assisted by Sri Mohd. Raghib Ali, learned counsel for the appellants in Capital Appeal No. 9 of 2020; Sri Raj Kumar Kesari, learned counsel for the appellant in Capital Appeal No. 2 of 2021; Sri Mohd. Afzal, learned counsel for the respondent in Government Appeal No. 23 of 2021 and Km. Meena, learned AGA for the State.

2. These two capital appeals alongwith Government appeal arise out of an incident dated 6.9.2018 in which a young lady was subjected to sexual assault and then done to death and her brother was assaulted with a knife and his throat was cut. The injured brother apparently lost his ability to speak. The trial Court recorded statement of the injured brother who has appeared as PW-5 and relying upon his testimony awarded capital sentence to the two accused.

3. On behalf of accused appellants, it is urged that the statement of PW-5 has not been recorded in the manner stipulated in law, inasmuch as, the principles laid down in Section 276 (2) Cr.P.C. have not been followed. Sri Saghir Ahmad, learned Senior Counsel appearing as Amicus Curiae has also referred to and relied upon Section 119 of the Evidence Act, which provides as under :

''119. Dumb witnesses.--A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.''

Reliance is also placed upon Section 137 of the Evidence Act, in that regard.

4. We have perused the statement of PW-5, which is in question-answer form. The original record also contains two pages, on which, handwritten answers of PW-5 exists alongwith his signatures at the bottom of the page. On this handwritten answers, there is no reference to the question pursuant to which such answer is given. It is thus difficult to read the testimony of PW-5. We are thus of the considered view that the testimony of PW-5 has not been recorded in consonance with law.

5. In our opinion, interest of justice would require that the matter be remitted to the Court below for the limited purposes of recording the statement of PW-5, afresh, in accordance with law. We are persuaded to take such view as it is the settled principle of law that any error on part of the Court below in recording of evidence should not occasion in failure of justice, specially in view of the fact that both the parti