H.N. Narayan, J.
1. This appeal is directed against the judgment of conviction and sentence recorded against the appellant by the learned I Additional District and Sessions Judge, Kolar, dated 7th November, 1998. The learned Sessions Judge, by the said Judgment, convicted the accused-appellant for the offence punishable under Section 302 of the Indian Penal Code, and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 250/-, with default clause and he was acquitted of offences punishable under Sections 498A and 304B of the Indian Penal Code, and Section 4 of the Dowry Prohibition Act. This judgment is challenged on many counts as could he seen from the grounds pleaded in the appeal memo filed by the appellant.
2. The Police Inspector of Dowry Prohibition Cell, C.O.D., Bangalore, laid the charge-sheet against the appellant and two others, alleging the offences punishable under Sections 498A, 304B and 302 of the Indian Penal Code, and also for the offence under Section 4 of the Dowry Prohibition Act, 1961. The appellant and two others were charged for offences punishable under Sections 498A and 304B of the Indian Penal Code, and Section 4 of the Dowry Prohibition Act, and A1-appellant was specifically charged for the offence under Section 302 of the Indian Penal Code along with other offences. The particulars of witnesses examined, the documents and the material objects marked on behalf of the prosecution are furnished in the annexure list to the judgment.
3. In this appeal, we have heard the arguments of Sri K. Shankarappa, learned Counsel for the appellant - first accused, and Sri B.C. Muddappa, learned Additional State Public Prosecutor for the State. Though this specific ground is not pleaded in the appeal memo by the appellant, it is contended by the learned Counsel for the appellant that the Trial Court has adopted a mode forbidden in law for recording the joint statement of the accused persons under Section 313 of the Criminal Procedure Code, and therefore, the trial is vitiated and the appellant is entitled for an order of acquittal. Learned Counsel has relied upon the pronouncement of this Court in the case of State of Karnataka v Sharanahalli Revanna and Others. One of us (Justice H.N. Narayan) was the member of the said Division Bench. Sri B.C. Muddappa, learned Additional State Public Prosecutor, however, contended that the judgment rendered by the Division Bench of this Court in Vaijinath v State of Karnataka , is applicable to the facts of this case, and this Court has to allow the appeal and remit the matter for examination of the accused persons separately as required under Section 313 of the Criminal Procedure Code, with a direction to the Trial Court to proceed from that stage.
4. Therefore, the short question which arises in this appeal for ourconsideration is:
Whether non-compliance of the provisions of Section 313 of the Criminal Procedure Code, by the Trial Court vitiates the trial and whether accused is entitled for an order of acquittal?
5. Since we are called upon to consider only this question and not the appeal on merits, we do not propose to refer to the facts of this case or to the evidence adduced by the Prosecution in support of the charges. We may hasten to add at this stage, that the order of acquittal of A. 2 and A. 3 by the impugned judgment is not challenged by the State. It is only the first accused, who is convicted for the offence of murder, who is before this Court in this appeal filed by him.
6. Section 313 of the Code of Criminal Procedure, reads as follows:
'813. Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may, at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b)'.
There are two kinds of examination of the accused under Section 313 of the Code of Criminal Procedure. The first relates to any stage of inquiry or trial, while the second takes place after the prosecution witnesses are examined and before the accused is called upon to enter his defence. The former is particular and optional, while the latter is general and mandatory. It is also imperative, The Supreme Court in Usha K. Pillai v Raj K. Srinivas, stated the law that the Court is empowered by clause (a) to question the accused at any stage of the inquiry or trial; while clause (b) obligates the Court to question the accused before he enters his defence on any circumstances appearing in prosecution evidence against him. The Apex Court also stressed the importance of Section 313 of the Code of Criminal Procedure, in recording the statement of the accused and the duty imposed on the Court to question the accused properly and fairly so as to bring home the exact case he will have to meet and thereby an opportunity is given to him to explain any such point. This is highlighted by the Apex Court in Parichhat v State of Madhya Pradesh.
7. We now advert our attention to the mode of examination of the accused under Section 313 of the Code of Criminal Procedure. The Bombay High Court in Emperor v Balakrishna, held that if there are several accused, the Magistrate must examine each accused separately; if he records the statements of all the accused collectively, the trial is vitiated and the conviction must be set aside.
8. A similar view is also expressed by the Division Bench of this Court in Sharanahalli Revanna's case, supra. That was an appeal preferred by the State against the judgment of acquittal of the accused. The accused persons were charged for offences punishable under Sections 143, 147, 148, 324 and 326 read with 149 of the Indian Penal Code. In the said case, the Division Bench held as follows:
'It is well-settled law that the accused statement under Section 313 of the Criminal Procedure Code 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. 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'.
It is also held in that case as under:
'(B) 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 once faced the trial and have obtained a verdict in their favour, it would not be appropriate particularly after the lapse of 6 to 7 years to burden the Trial Court with a retrial'.
Therefore, having regard to the totality of these considerations, and in view of the remand is contra-indicated in that case, that it would be futile, therefore, under those circumstances it was held that no useful purpose would be served by prolonging the litigation. Therefore, the Division Bench refused to disturb the order of acquittal recorded in favour of the respondent-accused. Hence, the State's appeal was dismissed.
9. In Vaijinath's case, supra, the appellant and two others were charged for offences punishable under Sections 302, 307, 324 and 323 read with 34 of the Indian Penal Code. Though other accused persons were sentenced for minor offences, they were given the benefit of Section 428 of the Criminal Procedure Code, in view of the pre-trial imprisonment. But, the appellant was convicted for the offence of murder. In the said case, the Sessions Judge recorded the joint statement of the accused while examining them under Section 313 of the Criminal Procedure Code.
10. The Bench considered whether the joint statement recorded by the learned Sessions Judge while examining the accused in 313 of the Code of Criminal Procedure was vitiated on account of infringement of Section 313 of the Code of Criminal Procedure. It was not disputed before the Bench that recording of the statement of the accused under Section 313 of the Code of Criminal Procedure was mandatory and that the learned Trial Judge was required to examine each of the accused individually on the circumstances appearing against him in the evidence. Having considered the law laid down by the Apex Court in S. Hernam Singh v State (Delhi Admn.) and also the judgment of the Lahore High Court rendered in Musammat Ghasiti and Another v Emperor, the Division Bench at para 3 held as follows:
'We are constrained to observe that the learned Sessions Judge who disposed of the present case found an easy course of recording a joint statement of accused persons in this case in flagrant violation of the provisions of Section 313 of the CriminalProcedure Code, and this itself is an illegality as infringing the provision of the statute'.
The Division Bench observed that as the entire judgment is vitiated by this illegality, the fact that the other accused persons have not chosen to prefer any appeal is not of any consequence as the entire judgment has to be set aside, and therefore, the matter was remitted to the Trial Court with a direction to register it in its original number, to examine each of the accused separately as required under Section 313 of the Criminal Procedure Code, in the light of the observations made above and then to dispose of the case on merits.
11. On careful perusal of these two judgments rendered by the two Division Benches of this Court, we do not find contradictory views expressed in them. But, in Vaijinath's case, supra, the Bench refused to acquit the accused on the ground that they were convicted by the Trial Court by committing illegality in recording the joint statement of the accused, while in Sharanahalli Revanna's case, supra, the lapse of 6 to 7 years after the judgment of acquittal rendered by the Trial Judge was taken into consideration for retrial of the case and having regard to the nature of evidence available on record in that case, the Court refused to disturb the order of acquittal recorded against the accused persons. Therefore, the appellant does not get any benefit from the judgments of this Court in Sharanahalli Revanna's case cited supra.
12. Wherefore, we are of the view that the Trial Judge has failed to follow the mandatory provisions of law, in not examining the accused separately and individually and it vitiates the trial and such a judgment is clearly not sustainable in law. This is not a case where a particular incriminating evidence is not put to the accused, in which case, the said circumstance may be eschewed by the Court, or the appellant's Counsel could be asked to explain the circumstances existed against the accused and where non-examination of the accused on a particular circumstance prejudices the defence. Though the provisions of Section 313 of the Code of Criminal Procedure specify the mode of recording the statement of the accused under Section 313 of the Criminal Procedure Code, the second part of it specifically mandates recording the statement of the accused to explain each and every incriminating circumstance occurring against him. He must have ample opportunity of explaining the said circumstances occurring against him. We have already recorded the observations of the Apex Court regarding the importance of recording the statement of the accused in the latter part of Section 313 of the Criminal procedure Code. Therefore, where the mandatory provision of law is violated, the trial vitiates. Therefore, it is liable to be set aside.
13. The learned Counsel for the appellant, at this stage, pleaded for releasing the accused on bail. We do not propose to consider this request since the appellant is convicted for the offence of murder by the Trial Court on available evidence on record. Therefore, the order of conviction is set aside in this appeal only on the ground of not following the mandatory provisions of law. It is open to the appellant to make any such application before the Trial Court; when made, the same be considered by the Trial Court on its merit.
14. Therefore, this appeal is allowed. The judgment of conviction and sentence recorded against the appellant in S.C. No. 249 of 1997 by the First Additional District and Sessions Judge, Kolar, is set aside. The matter is remitted to the Trial Court with a direction to re-register the case in its original number and proceed against the appellant-accused only from the stage of recording the statement of the accused under Section 313 of the Criminal Procedure Code, and record the statement of the first accused separately and pass appropriate judgment in accordance with law.