Appellate Division
(Criminal)
SK Sinha J
MA Wahhab Miah J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Habibur Rahman @
Habu and others…. Appellants
Vs
State ……..
………..Respondent
Judgment January 9th, 2013.
January 9th, 2013.
Code of Criminal Procedure (V of 1898) Section 342
Trial court has not at all followed the provision of law and convicted the appellants without application of its judicial mind. 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. Failure on the part of the learned Sessions Judge is not a mere irregularity; is a grave irregularity which has occasioned failure of justice. .. …. (16)
Shivagi vs State of Maharashtra, AIR 1973 SC 2622; S Harman Singh vs State, AIR 1976 SC 2140; A Gafur vs Gugesh Chandra Ray, 43 DLR (AD) 62 ref.
Abdur Razaque Khan, Senior Advocate (with SM Shahjahan, Advocate), instructed by Md Aftab Hossain, Advocate-on-Record-For the Appellants.
Momtazuddin Fakir, Additional Attorney-General, instructed by B Hossain, Advocate-on-Record-For the Respondent.
Judgment
SK Sinha J : This appeal at the instance of the convicts is against a judgment and order of the High Court Division maintaining their convictim and sentence passed by the learned Sessions Judge, Kishoregonj. Appellants were convicted under different counts including sections 302/34 of the Penal Code for causing the death of Sukkur Ali on 6th February, 1984 at about 8-00 AM at Suti Nakla under police station Kotwali, while he along with others was returning home after working from their field at Bara Haor towards the northern side of their house. Some of the witnesses had also sustained injuries. The learned Sessions Judgge convicted all the appellants except the appellant No.5 Shamim Shah under sections 302/34 of the Penal Code and sentenced them to imprisonment for life with fine and the appellants Habibur Rahman Shah, Fazlu Shah @ Fazlu and Shamim Shah @ Shamsu under section 326 of the Penal Code and sentenced them to ten years rigorous imprisonment and also found all the appellants including four others guilty under Section 148 of the Penal Code and sentenced them to rigorous imprisonment for 3 years with a direction that the sentences run concurrently.
2. Leave was granted to consider the question as to whether the High Court Division is justified in maintaining the conviction in not giving them the benefit of doubt despite the fact that there is shifting of the place of occurrence and that the witnesses being not reliable as they were accused in a criminal case filed by the informant who had entered into an unholy alliance with the informant in order to be relieved from the criminal case.
3. There is no dispute that Sukkur Ali was done to death on the day of occurrence and the medical evidence supported the cause of death which was due to shock and hemorrhage as a result of the injuries. The defence also did not challenge the cause of death. The High Court Division and the trail court on proper sifting of the evidence believed the lime, the place and the manner of occurrence. Learned counsel appearing for the appellants has stressed upon the shifting of the place of occurrence and argued that since the prosecution has failed to prove the place of occurrence beyond shadow of doubt, the appellants are entitled to get the benefit of doubt. In this connection learned counsel has drawn our attention to the evidence of the informant Shah Sabdor Ali (PW 3) and Nawab Ali (PW 6).
4. The consistent case of the prosecution is that when the victim along with his brothers was returning home after working in their field, which is situated towards the southern side of Mirzapur C & B road, the appellants trespassed into their land with deadly weapons, assaulted the informant. (PW 3), Muslem Mia (PW 11) and the victim Sukkur Ali indiscriminately and as a result the victim succumbed to the injuries on the spot. PW 3 stated that the appellants chased them towards the northern side and inflicted injuries on the wheat field of Sayed Hossain. In course of cross-examination he clarified the point in controversy stating that towards the southern side of C & B road intervened by two plots is the wheat field; that they were working in their land towards 100 Kani north of this wheat field and that they were approaching from north to south. lsrail. (PW 4) also stated that the occurrence took place in the wheat field of Sayed Hossain which is situated towards southern side of C & B road. Mukhter (PW 5), Nawab Ali (PW 6), Imam Uddin (PW 7), Md Rahmat Ali (PW 8) Asam Ali (PW 9) and Abu Bakar (PW 10) made similar statements. In course of cross-examination these witnesses made similar statements and the defence failed to shake their testimonies as regards the alleged shifting of the place of occurrence. Their consistent statement is that the occurrence took place in the wheat field of Sayed Hossain.
5. Md Shamsuddin (PW 12) is the investigating officer who stated that he seized alamats from the place of occurrence. In course of crossexamination, he stated that in the sketch map mark ‘H’ has been shown as the place of occurrence, which is situated towards the southern side of the road and in the index, this mark ‘H’ has been described as the second place of occurrence. He further stated that the alamats seized include wheat plants. Therefore, we find that the place where the victim sustained injury is the wheat field of Sayed Hossain which is situated towards the southern side of C & B road. Learned counsel has drawn our attention to the FIR version wherein it is alleged that as soon as the victim along with his brothers reached his plot towards the southern side of C & B road, the appellants attacked all of them. There is no doubt that there is a slight deviation of the evidence on record from the FIR version as regards the place of occurrence but the defence has not taken any contradiction by drawing PW 3’s attention to the allegations made in the FIR. In view of the explanation given by the investigating officer, it is apparent that the occurrence was originated from the victim’s land which was culminated at Sayed Hossain’s wheat field. In view of the above, the High Court Division is perfectly justified in believing the place of occurrence.
6. The second line of the argument of the learned counsel is that apart from the shifting of the place of occurrence, as there is defect in the charges framed and the examination of the appellants under section 342 of the Code of Criminal Procedure the appellants are entitled to get the benefit of doubt. Learned counsel has taken us to the charges and the examination of the appellants. We have made a cursory glance to the charges and noticed that the charge of murder was framed stating that “on 6th February, 1984, 22nd Magh, 1390 BS at Suti Nakla, PS Katwali, Dist. Kishoregonj in furtherance of common intention of you (appellants) will (sic) did murder by intentionally killing causing the death of Sukkur Ali …. “. In this charge the trial court has mentioned the place of occurrence is at “Suti Nakla”, not the wheat field of Sayed Hossain towards the southern side of the C & B road and it did not also mention the time of occurrence. The consistent statements PWs 3-10 as regards the place of occurrence is the wheat field of Sayed Hossain which is situated towards the southern side of C & B road. The sketch map proved by the investigation officer corroborates the prosecution version although, as observed above, there is some deviation from that of the FIR version, which is not a substantive piece of evidence . and the defence has not brought on record this deviation by cross-examining the maker of the FIR. Non-mentioning of the time of occurrence is certainly an error which has occurred due to non-application of judicial mind by the learned Sessions Judge while framing the charges but despite such error, the appellants have not taken any exception against this error at any stage either in the trial Court or at the appellate stage. It is new settled that no defect or irregularity in the form of the charge will affect a decision unless failure of justice has been caused thereby.
7. The object of framing charge in a criminal trial is to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet or in the alternative, to warn the accused of the case he is to answer. It shall contain the nature and the particulars of the offence by name, the date, time and place. The accused is entitled to know with accuracy and certainty the exact, nature of the charge brought against him so that he can take proper defence. Unless he has this knowledge, he will be prejudiced in his defence. So, framing of a proper charge is vital to a criminal trial and this is a matter on which the court should give careful attention. Therefore, if the charge remains vague, the necessary ingredients of the offence to which the accused is convicted are not brought out or if the place and time of occurrence have not been brought with provision, obviously the charge will be defective. Failure to state those fact would render the trial of the accused in some cases defective. Though Section 537 provides that by reason of error or omission in the charge the conviction shall not be reversed and altered, this being a general provision, this section does not supersede the provisions relating to the contents of a charge contained in Sections 221, 222, and 223 of the Code of Criminal Procedure, inasmuch as, section 537 states “subject to the provisions hereinbefore contained” (sic) that is to say, the aforesaid section will prevail over section 537.
8. Secondly, the appellants have faced amongst others one charge which is punishable with death. Therefore, the trial court should guard while framing charge to apply its judicial mind so that no prejudice is caused to the accused. In this case, the witnesses in course of their depositions specifically mentioned the place and the time of occurrence and since the appellants have thoroughly cross-examined them, it cannot be said that this irregularity has occasioned a failure of justice which is evident from the fact that they have not raised this point in the appellate court. Even then, we record, our dissatisfaction with the manner in which an officer at the level of a Sessions Judge had dealt with the matter in a reckless fashion. The wording of the charges was neither accurate nor clear as regards the place of occurrence apart from the fact of omission of the time. However, we are of the view that it is not of such serious nature of irregularity which has occasioned any failure of justice.
9. As regards the last point, about the defect in the examinations of the appellants under section 342 of the Code of Criminal Procedure, we noticed that, there is inherent defect in the examinalions. Nothing was mentioned in the examinations, not to speak of drawing attention of the appellants regarding the incriminating evidence as stated by the witnesses to enable them to give a plausible explanation. It was short, cryptic and without satisfying the requirement of law which will be evident if I quote the manner of examination of appellant Habibur Rahman @ Habu as thus:
miKvi cÿ Avcbvi wei‡× †h mKj Awf‡hvM Avwbqv‡Q Zvnv‡Z Avcbvi weiæ‡× evt`twe| 148/302/34 avivq PvR© Avbv nBqv‡Q| miKvi cÿ Avcbvi weiæ‡× Awf‡hvM cÖgvY Kivi Rb¨ †h mKj mvÿxMY w`qv‡Q Avcwb Zvnv‡`i Revbew›` I †Riv ïwbqv‡Qb| Avcbvi Reve wK . . . . . . .? This is not at all a correct and legal compliance of formality. The learned Sessions Judge has not at all drawn the attention of the appellants about the incriminating portion of the evidence which were adduced by the witnesses against them. The learned Judge in a slipshod manner without stating anything examined the appellants which is not at all the purpose for which this provision was introduced.
10. Section 342 requires the trial Court to examine the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him. The substance of this examination is that the principles of natural justice should not be violated before convicting an accused of a charge. Therefore, it is incumbent upon the court to draw to the attention of the accused the incriminating evidence which is on record and to ask him to explain his position against this indiscriminating evidence. If the accused is not afforded that . opportunity though he has the liberty to ask the appellate court to place him in the same position as he would have been in had he been 1 asked, normally an accused does not make such I claim. He is also entitled to ask the appellate court to take the explanation that he would have given in the first court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along.
11. This section enjoins upon the trial Court the duty of placing before the accused the circumstances appearing against him in order that he may be given opportunity of explaining them. The examination of an accused under this provision is not intended to be an idle formality; it has to be carried out in the interest of justice and fair play to the accused. In the case in hand the trial court treated the examination as one of mere routine work. This examination in a slipshod manner without drawing the attention of the appellants to incriminating materials on record certainly prejudiced them. True, every error or omission in complying with the requirements of section 342 does not necessarily vitiate the trial, some errors are curable. The question whether the trial of the accused has been vitiated depends in each case upon the degree of error and whether prejudice has been or is likely to have been caused to the accused. The Court is required to see, that no prejudice or injustice is caused to the accused. If there is complete lack of any reference to the adverse circumstances which form the basis of the conclusions of the trial Court, it undoubtedly is a serious irregularity and cannot be lightly ignored. If the prejudice was hereby caused, such an irregularity would entail retrial in the circumstances of the case like this.
12. As observed above, the object of section 342 is to afford to the accused an opportunity of showing that the circumstances relied upon by the prosecution which may be prima-facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate. The accused must be given clear notice of the circumstances and must be given the opportunity to render such explanation as he can of those circumstances. It follows as a necessary corollary there from that each material circumstance appearing in evidence against him is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if that is shown to have prejudiced the accused.
