Allowing benefit of doubt to serve the ends of justice

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(From previous issue)

13. In Shivagi vs State of Maharashtra, A,IR 1973 SC 2622, K Iyer, J speaking for the Supreme Court observed:
“It is trite law, nevertheless fundamental that the prisoner’s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic’ fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself; if consequential miscarriage of Justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction”.
14. In that case the High Court had relied upon the presence of blood found all. the pants matching the blood group of the deceased. In course of the hearing no explanation had been given from the side of the accused to this chemical finding. When the accused was confronted with this fact, he replied I do not know. The trial court did not rely on such circumstance, despite that it was observed by K Iyer, J that great care is expected of trial courts who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judges may be a little fagged out. In S Harman Singh vs State, AIR 1976 5C 2140, the Supreme Court noticed irregularity in the examination of accused under section 342 and gave him the benefit of doubt and acquitted him of the charge. In A Gafur vs Gugesh Chandra Ray, 43 DLR (AD) 62, this Division found irregularity in the examination of accused to the effect that after the close of the prosecution case the trial court did not ask the accused whether they would adduce any evidence in defence. This omission, it was observed, vitiated the trial and directed the trial Court to examine the accused afresh under section 342 and set-aside the judgments.
15. In this case we noticed that though the trial Court examined the appellants, it was not at all an examination in the eye of law. No incriminating materials which had been revealed from the lips of the witnesses against the appellants were brought to their attention. We have also noticed some discrepancies in the evidence of the witnesses regarding the actual place where the occurrence took place. If the material evidence were brought to their notice, the appellants could have given, a plausible explanation as regards the place and the manner·of occurrence. This was in our view a grave error on the part of the learned Sessions Judge and it cannot be said that the appellants have no plausible explanations as regards their participation in the murder of the victim. The object and purpose of section 342 as set up in its opening words. For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the attention of the accused must be drawn to every incriminating material to enable him to explain the same and the failure of which would amount to an incurable irregularity. If an important piece of evidence is not put to the accused and he is not given an opportunity to explain that evidence, it cannot be used against him. Therefore, the examination under the section is to give the accused an opportunity to, explain the case made against him.”
16. This examination and reply to the examination can be taken into consideration in judging his innocence or guilt to the charge. Therefore, there is no gainsaying that law enjoins upon the court the duty of placing before the appellants the circumstances, appearing against, them. in order that they may be given an opportunity of explaining them. Where the court does not draw the attention of the appellants about the incriminating materials how them will they give explanation to the court unless the specific point or points which weigh against them are mentioned. If this is not done, they cannot be reasonably expected to be able to explain these points Therefore, there can be no doubt that the trial court has not at all followed the provision of law and convicted the appellants without application of its judicial mind. Though we are of the view that it is an irregularity on the part of the trial court, at the same time it cannot be ignored that this irregularity has prejudiced the appellants. This point was agitated in the High Court Division but it did not meet the point and maintained the conviction. From the above discussion, we find that the learned Sessions Judge was totally unmindful in following the requirements of law. This failure on the part of the learned Sessions Judge is not a mere irregularity; it is a grave irregularity which has occasioned failure of justice. Now the question is whether on this ground the appellants are entitled to be acquitted of the charges.
17. We noticed from the record, that the appellants had been facing prosecution of the charges since 15th July, 1984 and in the meantime 28 years had elapsed. It is also on record that the appellants were acquitted of charges by the learned Sessions Judge on 13th April, 1985 and thereafter, pursuant to a revision petition moved on behalf of the informant, a Division Bench of the High Court Division remanded the matter by judgment and order dated 17th June, 1998 in Criminal Revision No.77 of 1987. Thereafter, the learned Sessions Judge convicted them on 28th June, 2000. They have suffered about 13 years in gaol in the meantime and if this case is again remanded to the trial court for examination of the appellants under section 342, and if the case ends in conviction, certainly they will be prejudiced thereby and in that case, the ends of justice will be defeated. They have suffered a lot for no fault of theirs but for the laches of the learned Sessions Judge. On consideration of their sufferings, we are of the view that ends of justice will be best served if the appellants are given the benefit of doubt instead of sending the case back on remand for fresh examination.
18. Accordingly, the appeal is allowed. The appellants are acquitted of the charges and they be set at liberty if not wanted in connection with any other case.

(Concluded)
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