HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Cr. Appeal no. 26/2007 with Confirmation Ref. no.09/2007 Date of Decision: 02.04.2009 Dhoop singh vs. State of J&K State vs. Dhoop Singh CORAM: MR. JUSTICE J. P. SINGH, JUDGE. MR. JUSTICE SUNIL HALI, JUDGE. Appearing counsel: For Appellant(s) : Mr. O.P.Thakur, Advocate. For Respondent(s) : Mr. S.C.Gupta, AAG. i) Whether approved for reporting in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No ________________________________________________________ This Criminal Appeal is directed against Additional Sessions Judge, Ramban’s Judgment of November 20, 2007 and Order of November 28, 2007 whereby, convicting the appellant for committing murder of Shankari Devi, he has been sentenced to Rigorous imprisonment for life and a fine of Rs.10,000/- under Section 302 RPC and to Rigorous imprisonment for one year under Section 342 RPC and in default of fine to further imprisonment for three months. Learned Additional Sessions Judge, Ramban too has made reference for Confirmation of the sentence awarded to the appellant. Projecting appellant’s innocence, it is urged by appellant’s learned counsel that the trial Court has failed to appreciate the evidence in accordance with law and had 2 contravened the provisions of Section 342 of the Code of Criminal Procedure, in omitting to put incriminating circumstances allegedly appearing in the prosecution evidence against the appellant for his explanation, before using these circumstances for sustaining appellant’s conviction, thereby causing serious prejudice. The omission, according to the learned counsel, was fatal to the prosecution case and the impugned judgment and order was thus liable to be set aside and quashed. Conceding trial Court’s omission to comply with the requirements of Section 342 Cr.P.C, learned State Counsel had nothing more to urge during the consideration of the appeal because according to the learned counsel, appellant’s conviction may not be sustainable because of the defective examination of the appellant under Section 342 Cr.P.C. We have considered the submissions and perused the trial Court’s judgment and the order impugned in the appeal. The prosecution story, as unfolded in the Final Police Report, filed by the Officer Incharge of Police Station Ramban, in the Court of Judicial Magistrate, Ist Class, Ramban is, that Shankari Devi, the deceased, though married to Bhag Singh, about twenty years ago, did not have cordial marital relationship with him which got strained, a little after their marriage whereafter she started putting up separately. They had no issue. It was about 7/8 years ago that Bhag Singh adopted appellant-Dhoop Singh, his brother Manohar Lal’s son, who started putting up with him and cultivating his land. The strained relationship between 3 Shankari Devi, on the one hand, and the appellant and his adoptive father Bhag Singh, on the other hand, led to litigation in the Civil Courts and on the day of occurrence too, the parties had attended the Court of Sub-Judge, Ramban in connection with a suit for permanent prohibition injunction. Shankari Devi is stated by the prosecution to be an eyesore for the appellant and Bhag Singh who wanted to take possession of the land which was in possession of Shankari Devi. Accordingly appellant-Dhoop Singh, in conspiracy with Bhag Singh, had, taking benefit of the darkness, beaten Shankri Devi with the handle of his Pickaxe, and thereafter tied her with a rope with the pillar of his house where she had later succumbed to the injuries at about 3 a.m of October 30, 2001. Pursuant to the committal of the Final Police Report, the appellant, was charged by learned Additional Sessions Judge, Ramban, for commission of offences punishable under Sections 302/342/34 RPC. Denying the charge, the appellant claimed trial. Proceeding under Section 512 Cr.P.C, the trial Court recorded evidence in the case, in the absence of Bhag Singh, who had absconded. In order to prove its case, the prosecution had relied upon the testimony of PW-2 Vijay Singh, PW-3 Bhag Singh, PW-Sudarshana Devi, PW-5 Kan Chand, PW-6 Kesab, PW-7 Bir Singh, PW-8 Paras Ram, PW-9 Mohan Lal, PW-10 Charan Dass, PW-11 Kartar Singh, PW-12 Hoshiar Singh, PW-13 Ram Nath, PW-14 Bharat Singh Patwari, PW-15 Sansar Singh, Patwari, PW-16 Davinder Singh, PW-17 Raj 4 Kumar, PW-18 Dr. Harish Parihar, PW-20 Dr. Naresh Khajuria and PW-12 ASI Parlad Bhagat. Although the trial Court has given the resume of the statements of all the prosecution witnesses in its judgment, yet requisite discussion on their testimony to appraise the evidence with a view to arrive at the conclusion as to whether or not the testimony of the witnesses was believable, is absent in the judgment, rendering it perfunctory. Without any discussion on the evidence of PWs-3, 5, 6, 7, 8, 9 & 10, the trial Court has arrived at a finding that the appellant had confessed to have had a quarrel with the deceased who was tied by him. The trial Court has not indicated in its judgment about the circumstances which it had found proved in the case and which according to it were found incompatible with the innocence of the appellant or the guilt of any other person. As the trial Court has given No reasons in support of its conclusion to believe the prosecution witnesses, so it is difficult for us to comprehend as to what had entered the mind of the learned Judge to believe the witnesses. Learned Judges dealing with the trial of offences carrying higher punishments are required to be solicitous, careful and cautious before taking a decision in believing or disbelieving the witnesses produced during the trial, and in taking final decision about the proof or otherwise of the prosecution story or the defence version. Perusal of the trial Court records further indicate that rather than putting the incriminating circumstances 5 appearing in the prosecution evidence against the appellant to him, the trial Court has adopted a strange method while examining the appellant under Section 342 Cr.P.C. After asking as to whether he had heard and understood the statements of the prosecution witnesses, the trial Court had put almost all what had been stated by all the prosecution witnesses in their examination-in-chief, barring some parts thereof, to the appellant; but without asking his explanation therefor. The manner in which the trial Court has proceeded to examine the appellant demonstrates complete obliviousness of the learned Judge to the true spirit and intendment underlying the provisions of Section 342 Cr.P.C. Examination of the accused under Section 342 Cr.P.C, is part of the fair trial, which may be achieved by first making him aware of the circumstances found appearing against him in the prosecution evidence and thereafter providing him opportunity to explain such circumstances. The examination under Section 342 Cr.P.C thus requires questioning the accused separately about each material circumstance appearing in the prosecution evidence, which is intended to be used against him. To achieve fairness in trial and for providing proper opportunity of explaining circumstances to the accused, the questions should be in such form that even an ignorant or illiterate person may be able to appreciate and understand so that he is able to project the defence which may be available to him under law against such circumstances which are found to exist against him in the prosecution evidence. 6 Section 342 Cr.P.C prescribes a procedural safeguard for an accused facing trial to be allowed opportunity to explain the facts and circumstances appearing against him in the prosecution evidence. Providing of an opportunity to the accused is his valuable right which cannot be ignored. Although We find that all the circumstances appearing in the evidence against the appellant have not been put to him for his explanation, yet we do not subscribe to the submissions of learned counsel for the parties that this omission would vitiate the trial, for, the trial gets vitiated only if there is total absence of the examination of the accused in terms of Section 342 Cr.P.C. The defective examination of the appellant in the present case, would not, in our opinion, thus render the trial invalid, and the defect appearing in appellant’s examination needs to be remedied by directing appellant’s re-trial commencing from the stage of recording appellant’s statement under Section 342 Cr.P.C and proceeding thereafter according to the prescribed procedure, thereby ensuring fairness of the trial. Appellant’s re-trial becomes necessary for yet another reason that the trial Court has failed to appraise the evidence of the prosecution witnesses in coming to the conclusion as to whether or not their statements were believable and in recording positive findings about the proof or otherwise of circumstances leading to appellant’s guilt or innocence. We further find that the trial Court has omitted to consider as to whether or not the case projected against the 7 appellant, in the event of finding him guilty, would amount to Murder or Culpulable Homicide or any other offence punishable under the Ranbir Penal Code. In view of the above discussion, the impugned judgment and order cannot be sustained and are, accordingly, set aside, remanding the case to the trial Court for fresh examination of the appellant under Section 342 Cr.P.C and thereafter proceeding with the trial in accordance with law expeditiously so as to conclude it preferably by the end of September, 2009. The trial Court may, for that purpose, accordingly, take up the case every week to ensure its early disposal. Keeping in view the facts and circumstances of the case, the weapon of offence stated to have been used by the appellant, and appellant’s incarceration for more than seven years, We consider it appropriate to admit him to bail during his further trial, on his furnishing personal recognizance and recognizance of a surety in the amount of Rs.5000/- each to the satisfaction of the trial Court. Appellant is directed to appear before the trial Court on April 24, 2009. Declining trial Court’s Reference, this appeal is, accordingly, allowed as indicated above. (Sunil Hali) (J. P. Singh) Judge Judge JAMMU 02.04.2009 Pawan Chopra