Judgment:
M.F. Saldanha, J
1. This is an appeal directed by the State against the order of acquittal dated 20.9.1993 in C.C.No.993 of 1991 on the file of the learned JMFC, Harapanahalli. An omnibus charge under Sections 143, 147, 148, 324 and 326 read with 149 I.P.C. were framed against the accused and the learned trial Magistrate acquitted the accused. The State has appealed against the order of acquittal and the principal contention was that there were injuries that have occurred of some seriousness and having regard to the fact that Sections 143 and 149 were invoked, that it was unnecessary for the Trial Court to have gone into the individual overt acts or culpability insofaras if the evidence indicated that the incident had taken place and the accused had participated in it, that a conviction ought to have followed as a matter of course since the injuries were established. The appeal came to be admitted and since the respondents were unrepresented this Court appointed learned advocate Mr. Chandrasekharaiah as Amicus Curiae on behalf of the respondents-accused.
2. Today when the appeal was called out for hearing, Mr. Chandrasekharaiah raised two preliminary objections, the first of them being that the charge in this case is defective. He pointed out that the injuries caused to the 3 persons were individual and distinct and that the injuries were on different parts of the body and of different gravities and under these circumstances that they constituted separate offences for which the Code of Criminal Procedure specifically requires separate heads of charge to be framed. His submission is that a defective charge prejudices the accused particularly since it is not specifically brought to their notice as to what exactly the individual offences alleged against them are and that it could result in a miscarriage of justice. The second objection which he has really concentrated on and which was impressed by him, is that it is well settled law that the accused statement under Section 313 Cr.P.C. is an important stage of the trial because the evidence is required to be put to each accused and the accused afforded an opportunity of indicating as to what that accused desires to say with regard to the evidence in question. Learned advocate has demonstrated to us that the learned Magistrate has followed a completely defective and improper procedure of framing the questions and thereafter taking the answers of all the accused collectively one below the other. If the heads of evidence have been properly culled out, we asked the learned advocate as to what precisely is the prejudice that would result if the Trial Court instead of completely recording the statement of each accused and thereafter going on to the next one, put the questions to all the accused and recorded the replies together. As far as this is concerned, Mr. Chandrashekharaiah submitted that the law envisages that the accused be confronted with each head of evidence and the Court have over a period of time disapproved of any general or mass accused statement being recorded, because it invariably results in an unfair situation to the accused. Learned advocate submitted that this prejudice is sufficientto vitiate the trial. We need to record here that the learned Additional SPP himself drew our attention to a Division Bench decision of this Court reported in the case of VAIJINATH v. STATE : ILR1993KAR543 wherein the Division Bench of this Court in similar circumstances set aside the judgment and remanded the matter to the Sessions Court for a retrial. His submission was that in this background, the correct procedure would be to remand the matter to the Trial Court for a de novo trial. Though we do accept the position that the provisions of Section 313 Cr.P.C. must be strictly complied with and that if the Trial Court breaches those provisions and there is even the possibility of prejudice or injustice occurring to the accused that it would vitiate the verdict, we do not agree that in each and every case a de novo trial is the only solution. In our considered view if the error has taken place at the end of the trial it is unnecessary for the Trial Court to go through the entire exercise of re-recording the evidence and the appeal Court could as well direct the correct recording of the Section 313 statement and a re-consideration of the case from that stage onwards.
3. Mr. Chandrasekharaiah at this stage submitted that there is one predominant consideration which this Court must take into account viz., the question as to whether any useful purpose would be served through a remand either total or partial at this late stage. He has demonstrated to us that if there is a total remand, that the Court will have to consider whether at all on the facts of the present case which do not represent a very serious state of affairs, it is desirable to burden the Trial Court with the exercise of re-hearing the entire matter. We are conscious of the fact that the incident is six years old and that this being a criminal trial if there is any divergence in the evidence between the last occasion and the present one and more importantly if due to the lapse of time as is most likely, the witnesses are unable to fully and correctly recall the incident, that the entire operation would be an exercise in futility.
4. Having regard to the principles that govern the aspect of remand particularly in criminal cases, we are inclined to uphold the submission canvassed by Mr. Chandrasekhariah though the learned Additional SPP has submitted that they should be left to the Trial Court insofar as if the evidence is either forthcoming or isin satisfactory that the Trial Court will take an appropriate decision, but this Court should not anticipate such a possibility. Where the offences are extremely serious and where it is necessary that a miscarriage of justice should not result due to some default, it is most essential that merely because of technical or procedural defects, the accused should not get the benefit and that justice should correctly be done. Where, if the incidents are not of much seriousness and where a long period of time has elapsed and it is also on record that the accused have one faced the trial and have obtained a verdict in their favour, in our considered view it would not be appropriate particularly after the lapse of 6 to 7 years to burden the Trial Court with a re-trial. It does not require very much of speculation to anticipate as to what the result of the entire operation would be, insofar as it would be almost impossible to expect that sufficiently clear and cogent evidence could come forward at this late stage. Even if we were to direct that the statement under Section 313 were to be correctly recorded and the matter were to be re-decided, on the stage of the present record we do not visualise any other verdict.
5. Having regard to the totality of these considerations, we are of the view that the remand is contra-indicated in this case and that it would be futile. Under these circumstances even though we have upheld the objections canvassed virtually on both sides, we hold that no useful purpose would be served by prolonging this litigation. In this view of the matter, we are not inclined to disturb the order of acquittal recorded in favour of the respondents accused. The appeal fails and stands disposed of.
The fees payable to the learned advocate who has represented the respondents as Amicus Curiae is quantified at Rs. 1,000/-.