Case: Makan Jivan &amp; Others Vs. State of Gujarat

made available to the accused. This contention proceeds on the basis that P.Ws. 3 and 4, must have given more statements than one before the police. It may be noted that neither P.W. 4 was asked as to whether she had put any thumb mark on the statement given by her to the police nor was the investigating officer asked whether any witness had signed or put his thumb mark on his statement. Further, the statements made by witnesses during investigations should not be got signed by them if they are reduced into writing and in this case the investigating officer could not have thought that the witnesses so closely related to one another could ever have been gained over. Evidently the accused were trying to exploit the statement made by P.W. 3 under some misapprehension. But the learned Trial Judge would have done well to clear this point by questioning the investigating officer and by looking into the relevant records. 14. It was next urged that there was conflict between the medical evidence and the evidence of P.Ws. 2 to 4. This argument was based on the evidence give by P.W. 10. We have already mentioned that we would prefer to act on the testimony of P.W. 11 rather than on the testimony of P.W. 10. P.W. 11s evidence accords with the prosecution version. 15. The only other contention taken was that as the accused were not properly questioned under Section 342, Cr. P.C., the prosecution should fail. Section 342, Cr. P.C., provides that for the purposes of enabling the accused to explain any circumstances appearing in the evidence against him, the court may, at any stage of any inquire or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. In the instant case what the Trial Court has done is that after reading out the statements made by the accused in the Committal Court, it merely asked them as to what they had to say about the prosecution evidence recorded in their presence. This is a wholly unsatisfactory way of questioning the accused. The Trial Court had a duly to put to each of the accused the various circumstances appearing against them and further put the prosecution case generally for the purpose of affording the accused an opportunity to explain the circumstances appearing against them. There is no doubt that the examination of the accused under Section 342, Cr. P.C. in this case is highly defective. But that does not by itself vitiate the trial. It is for the defence to satisfy the court that because of the defect in the procedure adopted accused have been prejudiced. 16. In Ajmer Singh v. The State of Punjab, (1953 SCR 418 : AIR 1953 SCJ 76 : 1953 SCJ 85.) this Court ruled that the duty of the Sessions Judge under Section 342, Cr. P.C. to examine the accused is not discharged by merely reading over the questions put to the accused in the Magistrates Court and his answers, and by asking him whether he has to say anything about them. It is also not a sufficient compliance with the section to generally ask the accused that, having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining the circumstances which appear against him and the questions must be fair and must be couched in a form which an ignorant or illiterate person may be able to appreciate and understand. It is, however, well settled that every error or omission in complying with Section 342 does not necessarily vitiate the trail. Errors of that type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused. Despite the defective questioning of the accused in that case the court came to the conclusion that on the facts of that case, the accused were not prejudiced as the material evidence in that case was direct evidence and that evidence was taken in the presence of the accused who was represented by a counsel. 17. The facts before this Court in Bimbadhar Pradhan v. State of Orissa, (1956 SCR 206 : AIR 1956 SC 469 : 1956 SCJ 441.) are somewhat similar to those before us in case. Therein also the prosecution case rested on the testimony of the eye-witnesses. The only relevant question put to the accused in that case was "Have you got anything to say on the evidence of the witnesses". Therein it was contended that in view of the defective questioning of the accused under Section 342, Cr. P.C. the conviction of the accused must be set aside but this Court overruling that contention observed :"That (questioning of the accused) in our opinion, is sufficient in the circumstances of this case to show that the attention of the accused was called to the prosecution evidence. As to what is or is not a full compliance with the provisions of that section of the Code must depend upon the facts and circumstances of each case. In our opinion, cannot be said that the accused has been in any way prejudiced by the way he has been questioned under that section." 18. In this context it may be remembered that the plea of the accused persons in this case was that they were not present at the scene at the time of the occurrence. In view of that plea any further question to them would have been purposeless.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]They were simple injuries. P.W. 4 was not produced before the doctor for examination. Her evidence is to the effect that as her husbands condition was critical, she chose to be by his side and therefore she did not appear before the doctor for examination. There is no reason toe her evidence on this point7. The prosecution case is fully supported by the testimony of P.Ws. 2, 3 and 4. Their presence at the scene at the time of the occurrence is probabilised by the injuries sustained by them. As mentioned earlier, the first information report in this case was laid within about an hour after the occurrence. Therein all the details of the occurrence had been given. Further the injured persons were produced for medical examination very soon after the occurrenceTheir examination was unnecessary for unfolding the prosecution case18. In this context it may be remembered that the plea of the accused persons in this case was that they were not present at the scene at the time of the occurrence. In view of that plea any further question to them would have been purposeless.