ORDER
Rajendra Saxena, J.
1. This jail appeal has been directed against the judgment dated 9-1-95 passed by the learned Sessions Judge Hanumangarh whereby he convicted the appellant for the offences Under Sections 457 and 324 IPC and sentenced him to R. I. for one year and a fine of Rs. 100/- and in default to further undergo R. I. for fifteen days on each count and further directed that both the substantive sentences shall run concurrently.
2. Briefly the relevant facts for disposal of this appeal are that on the night intervening 29th Feb. and 1st March, 1992, PW 1 Smt. Guddi aged about 28 years was sleeping in her parents' house. Her niece PW 2 Kumari India aged about 13 years was also sleeping in the same room. It is alleged that at about 10-11 PM, Smt. Guddi was awakened and found that her cousin, appellant Rajendra, who had a knife in his hand, entered into her room, switched off the light and with an intention to commit rape with her, fell over her. She raised alarm and Indra was also awakened. It is alleged that thereupon the appellant inflicted a knife blow causing injuries on the right cheek of the prosecutrix and fled away. Immediately thereafter, her neighbours also came there. On the report of Guddi, FIR Ex. P. 1 was drawn at Police Station, Hanumangarh town. PW 6 Ramphal, S. I., inspected the site, prepared the site plan and memo thereof and recovered blood soaked cotton from the quilt lying on the cot. On 1 -3-92, the doctor examined the injuries of Smt. Guddi and found an incised wonld 1/2' x 1/4'' x muscle deep on her right cheek vide injury report Ex. P. 2. The x-ray examination did not reveal any bone injury and, as such, the said injury was simple in nature. After usual investigation, a challan was filed in the court of learned A.C.J.M., Hanumangarh, who in turn committed the case to the learned Sessions Judge.
3. The appellant was charged for the offences Under Sections 458, 324 and 376/511 IPC. He pleaded not guilty. The advocate for the appellant Under Section 294(3) did not dispute the genuineness of the arrest memo Ex. P. 1, injury report of Smt. Guddi Ex. P. 2 and the X-ray report Ex. P. 3 and admitted those documents. The prosecution, therefore, did not examine the doctor. The prosecution examined as many as six witnesses. The appellant in his plea under Section 313 Cr.P.C denied the prosecution case. However, he did not adduce any evidence in his defence. After trial, the learned Sessions Judge acquitted the appellant for the offences Under Sections 458 and 376/511 IPC, but convicted him for the offences Under Sections 457 and 324 IPC and sentenced him in the manner detailed above. Hence this appeal.
4. I have heard Mr. Suresh Kumbhat, learned Amicus Curiae and Mr. D. S. Rathore, learned Public Prosecutor at length and carefully perused the record of the lower court.
5. Mr. Kumbhat has strenuously contended that the learned Sessions Judge has not put the various circumstances appearing in the prosecution evidence to the appellant while recording his plea Under Section 313 CrPC and, as such, the prosecution evidence as also the injury report cannot be read in evidence against him. He has further contended that the appellant was under detention from 16-3-92 to 22-4-92 and thereafter undergoing sentence from 15-4-94. Thus, he has already served out the sentence and that it will be of no use in remitting the case to the trial court for recording the plea of the appellant Under Section 313 CrPC in accordance with law. He has, therefore, contended that the appellant be acquitted.
6. The learned P. P. concedes that the learned trial Judge has not framed the questions properly for recording the plea of the appellant, but he has asserted that in this case, unless irregularity is shown the trial cannot be vitiated because no prejudice has been caused to the appellant keeping in view the fact that not a single question has been put in cross-examination to any of the prosecution witnesses and that the genuineness of the injury report of Smt. Guddi was also admitted on behalf of the appellant.
7. I have given my thoughtful consideration to the rival submissions. Before I embark upon deciding the controversy raised in this appeal first I proceed to scrutinise the prosecution evidence adduced in this case. PW 1 Smt. Guddi deposed that on the ill fated night, she was sleeping inside the room of her parents house; that she is a widow; that her niece Indra was also sleeping in the same room; that in the night, the appellant entered inside the room and inflicted a knife blow causing injuries below her eye; that when he tried to outrage her modesty, she raised an alarm and that thereupon, Indra was awakened and the appellant fled away. No question was put to this witness in the cross examination. As mentioned earlier, her injury report Ex. P. 2 was admitted Under Section 294(3) CrPC by the advocate for the appellant. PW 2 Indra aged 13 years corroborated the sworn testimony of Smt. Guddi. She further stated that appellant had caught hold of the prosecutrix and then he took out a knife and inflicted an injury on her right cheek; that on the alarm raised by them, the appellant made good his escape and that thereafter, Bhinya, Kashi, Pappu and other neighbours came there to whom Smt. Guddi narrated the incident. PW 3 Bhinya Ram and PW 5 Surja Ram stated that on the alarm raised by Smt. Guddi, they came to her room, where Guddi had narrated them about the incident. PW 4 Smt. Rajo deposed that she had seen the injury of Smt. Guddi, PW 6 Ramphal is the I. O., who has proved various documents. Not a single question has been put in the cross-examination to any of these prosecution witnesses.
8. A bare perusal of the plea recorded Under Section 313 Cr PC by the learned trial Judge reveals that questions have been framed in a very criptic, slipshod and perfunctory manner. It will be worthwhile to reproduce those questions in extenso :
iz'u 1& vkids fo:) vkj{kh dsUnz guqekux<+Vkmu us 376&324&458&511 Hkk- n- l- ds vijk/k esa vkjksi i= izLrqrfd;k gS A vkidks bl ckjs esa D;k dguk gS
mRrj& irk ugha A
iz'u 2& D;k vki lk{; lQkbZ is'k djsaxs
mRrj & th ugha A
iz'u 3& vkidks vkSj dqN dguk gS
mRrj& eqdnek >wBk cuk;k x;k gS A
9. Section 313 CrPC inter alia mandates that in every enquiry or trial, for the purpose of enabling the accused person to explain any circumstances appearing in the evidence against him, the Court 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. Thus, the examination of the accused is very important duty, which should be performed with utmost care and in a proper way. It is not a mere empty or ritual formality. The Sessions Judge/Magistrate is bound to put all the circumstances appearing against the accused specifically so as to enable him personally to explain each and every circumstance appearing against him. The correct method of recording the plea Under Section 313 CrPC is not to ask generally if the accused has anything to say about the charges or the prosecution evidence against him but to place before him separately one by one in short sentences, all the vital and salient circumstances appearing against him in the simplest possible language so that he can realise what things he is required to explain.
10. The Apex Court in Parichhat v. State of M.P., : 1972CriLJ322 , has observed that the real importance of Section 342 CrPC, 1898 (which is equivalent and analogous to Section 313 CrPC, 1973) is that there is a duty cast upon the courts to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet and thereby an opportunity is given to him to explain any such point.
11. In the case on hand, the learned Sessions: Judge has not put even a single question regarding the circumstances appearing against him in the statements of these prosecution witnesses. On the other hand, only a vague, incomplete and irrelevant question has been put to the appellant to the effect that the Police Station, Hanumangarh town has filed a challan against him for the offences Under Sections 376, 424, 458 and 511 IPC, against which what he had to say. Thus not a single circumstance has been incorporated in the plea. Another question put to the appellant is that whether he would like to adduce evidence in his defence and the last question is as to whether he wants to say something more. Apparently, the learned Sessions Judge has clearly overlooked, contravened and patently offended the provisions of Section 313 CrPC. which has caused great prejudice to the appellant.
12. In Sharad Birdhi Chand Sarda v. State of Maharashtra, : 1984CriLJ1738 , material circumstances appearing in the prosecution evidence against the accused were not put to him. It was held by the Apex Court that the circumstances which were not put to the appellant in his statement Under Section 313 CrPC, must be completely excluded from consideration and those could not be used against him because the appellant did not have any chance to explain them.
13. In Gokha Singh v. The State of Rajasthan, 1986 Cr LR (Raj) 43, the report of Ballistic Expert was not put to the accused in his statement Under Section 313 CrPC nor any explanation was obtained from him as to how he was found in possession of crime pistol from which cartridge was alleged to have been fired. ' It was held that in absence of any such question put to the accused Under Section 313 CrPC, that circumstance could not be pressed into service for connecting him with the crime.
14. It is now no more res Integra that omission to examine or want of adequate examination Under Section 313 CrPC does not by itself necessarily vitiate the trial, unless it has caused prejudice or a failure of justice to the accused.
15. In S. Harnam Singh v. State, : 1976CriLJ913 it has been held that a duty is cast on the court to put questions to the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him and, therefore, each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so, amounts to a serious irregularity vitiating the trial, if it is shown to have prejudiced the accused. If the irregularity does not in fact occasion a failure of justice, it is curable.
16. In the case on hand, the learned trial Judge has not cared even to put a single circumstance appearing against the appellant in the prosecution evidence. Thus, the appellant did not get any opportunity to explain any such circumstance appearing in the prosecution evidence. Therefore, to my mind, a gross irregularity has been committed by the trial Judge, which has caused material and substantial prejudice to the appellant. The appellant has also practically served out the entire sentence and released and if the case is remitted to the trial court for again recording the plea of the appellant then further prejudice will be caused to him. In such circumstances, I am of the considered opinion that the evidence led in this case by the prosecution has to be excluded and cannot be read against the appellant and, therefore, the appellant deserves to be acquitted for the offences Under Sections 457 and 324, IPC.
17. In the result, this appeal is allowed and the conviction and sentence of the appellant Rajendra are hereby quashed and he is acquitted of the offences Under Sections 457 and 324 IPC. The jail authorities be informed accordingly.
18. A copy of this judgment be sent to all the subordinate criminal courts for information so that such grave error and patent illegality are not committed.