JUDGMENT
J.N. Bhatt, J.
1. The petitioner who is the original accused No. 1 has assailed the legality and validity of the conviction and sentence order passed by the learned Judicial Magistrate, First Class, Dhrangadhra in Criminal Case No. 884 of 1982 which was confirmed in the Criminal Appeal No. 128 of 1983 by the learned Additional Sessions Judge, Surendranagar on 30-5-1984 by invoking the aids of the provisions of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (‘Code’ for short).
2. The conspectus of material facts giving birth to the present revision, may be narrated, at the outset, so as to appreciate the merits of this revision and challenge against it.
3. The petitioner who is the original accused No. 1 and one Nitin Shantilal Soni, original accused No. 2, were prosecuted for the offences punishable under Sections 380, 465, 468, 471 of the Indian Penal Code (‘I.P.C.’ for short). In that the prosecution cases were that one Hemubha Nathuji, original complainant, who was serving as the Manager of ‘Dhrangadhra Kharid Vechan Sangh (‘Sangh’ for short) came to know about the commission of the offences and he lodged a complaint. The Office of Sangh is situated in Dhrangadhra City.
4. The prosecution witnesses Harunbhai Huseinbhai, Pravin Liladhar and Jayanand Shantilal were serving as clerks in the office of the said Sangh. The Sangh was dealing in the sale of cement, fertilizers and other essential commodities at the relevant time. For the purpose of preparing bills for the sale of those articles, bill books, as usual, were got prepared by the Sangh. The obsolete and utilised bill books were kept in the office in one shelf. The bill books Article No. 1 pertaining to the year 1979 were, also, kept on one shelf in the office as dead article. Out of the bill books of 1979, a bill book at Article No. 1 bearing No. 1501 was stolen. The complainant was informed about the theft of the said bill book by a clerk, the prosecution witness Harunbhai Huseinbhai, on 18-1-1982. The bill bearing No. 1590 out of the said Article No. 1 bill book was shown to the prosecution witness Harunbhai Huseinbhai by one Shantilal Lavjibhai Soni. This bill is the basis of the prosecution case which is, at Exh. 34, dated 28-12-1981. There were erasures and corrections in the said bill. It was shown by Shantilal Soni to the prosecution witness Harunbhai Huseinbhai in order to verify as to whether the said bill was genuine or not. The prosecution witness Harunbhai Huseinbhai found that the said bill at Exh. 34, was forged one. He, therefore, produced the said Exh. 34, bill before the complainant Hemubha Nathuji.
5. The complainant Hemubha Nathuji who was working as the Manager of the Sangh at the relevant time, made enquiry. He found that the forged bill, at Exh. 34, was given to Shantilal by the original accused No. 1 Zala Vijaysingh who is the petitioner in this petition. The complainant, on enquiry, also found that the book containing bills and commencing from No. 1501 was in respect of the sale of fertilizer and not cement and it was stolen. The prosecution, also, alleged that the original accused No. 1, Zala on account of good relations with one clerk, Pravinbhai Liladhar had committed the theft in respect of bill No. 1501. On getting the said bill book Article No. 1, the accused No. 1, Mr. Zala prepared false bill by making use of bills of the said book Article No. 1. The accused No. 1 gave the said bill to Shantilal Soni on 18-1-1982. Thus, on enquiry, the Manager of the Sangh, Mr. Hemubha found that serious offences were committed by the accused No. 1 and one clerk of the Saneh, Pravinbhai Liladhar. Therefore, he lodged FIR which is produced at Exh. 35, on 18-1-1982. The police, on investigation, found that the original accused No. 1, Mr. Zala and one Nitin Shantilal Soni had committed serious offences of cheating, forging and misappropriation. They were charge-sheeted in the Court of learned J. M. F. C. at Dhrangadhra on 14-9-1982. Charge was framed against them, at Exh. 6. The accused No. 1 was charged for the offences punishable under Sections 380, 465, 468 read with Section 114 of the I.P.C. The original accused No. 2 was charged for the offences punishable under Sections 468, 471 read with Section 114 of the I.P.C. The accused persons denied the charges against them and claimed to be tried.
6. The prosecution relied on as many as 13 prosecution witnesses. The prosecution, also, relied on the documentary evidence to which the reference will be made as and when required at the appropriate stage. The oral evidence of the prosecution is consisted of the following witnesses:
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S. No. Name of witness Exh. --------------------------------------------------- 1. Velubha Pragji 11 2. Mafabhai Khushalbhai 13 3. Dilip Shantilal 18 4. Vinodrai Ravsangji Kapur 21 5. Rasulbhai Ibrahim 22 6. Harunbhai Huseinbhai 31 7. Hemubhai Nathubhai 33 8. Jayanand Shantilal 39 9. Mustafa Davoodbhai 40 10. Madhubhai Malubhai Rathod 46 11. Prabhashankar Bhatt 43 12. Gajendrabhai Shantilal 48 13. Yusufbhai Ibrahimbhai 54 ---------------------------------------------------
7. On appreciation of evidence, the learned trial Magistrate convicted the original accused No. 1, petitioner, in this petition for the offences punishable under Sections 380, 465 and 468 of I.P.C. and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-and in default simple imprisonment for 3 months for the offences punishable under Section 380 of I.P.C. and to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/ – and in default to suffer simple imprisonment for 3 months for the offence punishable under Section 465 of the I.P.C. and, also, to suffer rigorous imprisonment for 9 months and to pay a fine of Rs. 1,000/- and in default to suffer simple imprisonment for six months for the offence punishable under Section 468 of the I.P.C. on 15-9-1983 in Criminal Case No. 884 of 1982. The original accused No. 2 Nitin Shantilal Soni was given benefit of doubt and was acquitted from all the charges against him.
8. Being aggrieved by the conviction and sentence order passed by the learned J. M. F. C., Dhrangadhra, the original accused No. 1 Mr. Zala preferred the Criminal Appeal No. 128 of 1983 in the Court of the Additional Sessions Judge, at Surendranagar. On appreciation of evidence and after hearing the parties the learned Additional Sessions Judge (Mr. B. P. Shah) at Surendranagar was pleased to confirm the conviction and sentence order while dismissing the appeal on 30-5-1984. Being dissatisfied by the said order of the Sessions Court at Surendranagar the original accused No. 1 has challenged the legality and validity of the conviction and sentence order passed against him by filing this revision.
9. The learned Counsel for the petitioner-original accused No. 1, has, seriously, criticised the impugned judgment order of conviction and sentence. It is contended that the Courts below have committed serious error of law which has resulted into grave miscarriage of justice. The learned Additional Public Prosecutor for the respondent-State has challenged such contentions.
10. There is no dispute about the fact that there is no direct evidence against the original accused No. 1, the petitioner in this revision. Both the Courts below have found the original accused No. 1 guilty for the aforesaid offences on circumstantial evidence. Before discussing the merits of the present revision in greater details, it may be mentioned that the jurisdictional sweep of this Court in a revision like on hand is very much circumscribed and this Court is conscious of this proposition of law. Unless and until misreading of evidence or perversity or miscarriage of justice is successfully pointed out, this Court will be at loathe to interfere with the concurrent findings of facts. Having examined the evidence on record and the facts and circumstances, in the opinion of this Court, there are serious infirmities which have resulted into grave miscarriage of justice. The impugned orders of conviction and sentence passed by the learned trial Magistrate and confirmed by the learned Additional Sessions Judge are tainted with serious lapses and discrepancies which are going to the root of the matter and which has resulted into not only serious prejudice to the accused but also, has resulted into serious illegality.
11. The prosecution, in absence of any direct evidence to prove the guilt of the accused persons has, relied on circumstantial evidence, having accepted by the Trial Court and the Appellate Court the disputed bill No. 1590 which is forged by the accused after committing theft in respect of said bill. It is produced at Exh. 34. It is the prosecution case that it is in the handwriting of the original accused No. 1, Mr. Zala.
12. The learned Counsel for the petitioner-original accused No. 1, Mr. Zala, has, seriously, contended that the accused is, seriously, prejudiced in his defence as the material incriminating circumstances were not put to him in his further statement under Section 313 of the Code. On examination of facts and circumstances and the record of the present case, this submission appears to be justified.
13. It will be expedient to refer the provisions of Section 313 of the Code which prescribes the power of the Court to examine the accused which reads as under:
313 (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).
(2) No oath shall be administered to the accused when he is examined under Sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into or trial for, any other offence which such answers may tend to show he has committed.
14. Section 313 provides for the examination by the Court of accused persons, and except under the circumstances and restrictions set forth in this section, an accused person is incapable of being examined by the Court. The object of examination of the accused under this section is to apply the accused an opportunity to explain the case made against him and the statement can be taken into consideration by the Court in deciding the merits of the prosecution case. This section is, thus, based on the principle involved in the maxim “audi alteram partem” namely that no one should be condemned unheard and the accused should be heard, not merely on what is prima facie is proved against him, but on every circumstance appearing in evidence against him. This provision does not purport to be only in the interest of the accused, its object is to enable the accused to explain any circumstances appearing against him in the evidence; the intention of the provision is for the furtherance of justice and to enable the Court to decide the question of the guilt of the accused. The result of the examination may be beneficial to the accused but it may equally be injurious to him. Therefore, the Courts dealing with such criminal case must realise the importance of the examination under the provisions of Section 313. It is, therefore, their duty to question the accused properly and fairly, bringing home to his mind in simple and clear language the exact case he has to meet and each material point that is sought to be used against him, so that accused could be given a chance to explain if he so desires. Needless to reiterate that the examination of the accused under Section 313 of the Act is not an empty formality. Although the statement of the accused can be taken into consideration in an enquiry or trial, it is not strictly evidence in the case of the accused. The accused can give his evidence on behalf of the defence under Section 315 of the Code.
15. It is very clear from the aforesaid provisions of Section 313 of the Code that it is mandatory and the examination of the accused should be for the aforesaid purpose. It is incumbent upon the Court to put question to the accused on the circumstances appearing against him in evidence so as to enable him to explain the same. It should be remembered that the question to the accused must relate to the circumstances in the evidence which go against him and not the inference which flows from the circumstances and the Court is not entitled to put question on facts which have not been proved in the evidence of the prosecution.
16. The examination of the accused under Section 313 of the Code is a very important duty which the Court should perform with particular care and in the proper way. The underlying principle on which Section 313 is based is that before damaging points or incriminating circumstances or material in the prosecution evidence, materials are used against the accused for establishing his guilt, it is essential that his pointed attention should be drawn to them one by one avoiding the form of cross-examination with an end in a view to afford an opportunity of giving an explanation consistent with his case or notion.
17. The correct method of performing the duty in Section 313 is not to ask generally if the accused has anything to say about the charges against him but to place before him separately one by one in short sentence all the vital and salient parts of the evidence appearing against him in simple language so that he can realise what things he has got to explain. Obviously, the question should not savour of cross-examination, nor should be inquisitorial. The real design and purport of Section 313 is that the duty is cast upon the trial Court concerned to question the accused properly and fairly F.O that it is brought home to the accused in clear words, the version of the prosecution that the accused will have to meet and, thereby, an opportunity is given to explain any such point. No doubt, it is equally true that the provision does not require each and every piece of evidence should be put to the accused. However, all material evidence direct or circumstantial incriminating the accused must be put to him so as to give an opportunity to explain such evidence or circumstance. No question can be put regarding the matter when there is no evidence about it. Likewise, it is not necessary to ask to explain each and every piece of the evidence on record.
18. The examination under Section 313 of the Code is not an idle formality but has to be complied with in the interest of justice and fairplay. It is not proper and regular to distinguish the matters of evidence in a single question. This section is not complied with by asking him generally if he has anything to say regarding the evidence if he has anything against him. It is contended that putting general question is sufficient compliance. Such contention cannot be accepted as it is not legal. It is not sufficient compliance to generally ask that having heard the evidence what the accused has to say about it. If a few questions are put to the accused he may not get an opportunity of explaining all the relevant circumstances against him. On the other hand, it would not be fair and right to put to the accused detailed and complicated questions which may amount to cross-examination. The Court must take care this aspect and is bound to put all relevant circumstances appearing in the evidence to the accused. In the present facts and circumstances of the present case, both the Courts below have failed to appreciate the proposition of law on this score and have committed serious illegality in overlooking it. The prosecution relied on the following important circumstantial evidence which is not put to the accused in his examination under Section 313 of the Code:
(i) Exh. 34 is the bill bearing serial No. 1590 dtd. 28-12-1981. It is the prosecution case that this bill was stolen and forged by the accused who is the petitioner.
(ii) Documentary evidence produced at Exh. 24 to 29 is in respect of sample hand-writing and signature of the original accused No. 1, Mr. Zala by preparing a panchnama at Exh. 23.
(iii) The letter alleged to be in the hand-writing of the accused Mr. Zala produced at Exh. 19 for supply of cement. It is the prosecution case that he applied to the Sangh as Chairman of Society. It was collected by preparing panchnama at Ex. 20.
(iv) Exh. 44 is the application given by the accused to Prabashankar Bhatt of Dhrangadhra Chemicals Works at Dhrangadhra, to prove that Exh. 34 is in the hand-writing of the accused Mr. Zaia.
(v) The evidence of hand-writing expert Mr, Gajendraprasad Shantilal Acharya at Exh. 48.
There is no dispute about the fact that the circumstantial evidence at serial Nos. (i), (ii) and (iii) had not been at all put to the accused in his examination under Section 313 of the Code. The circumstantial evidence at serial No. (iv) and (v) as aforesaid are not separately and properly shown or put to the accused Mr. Zala. They are generally and vaguely put in examination under Section 313 of the Code. It cannot be said that the accused was accorded with an opportunity to explain such circumstances when put to him in a very broad and vague manner. Question No. (ii) put to the accused Mr. Zala is inferential and without any evidence on record. The question No. (iv) is the effect as to whether the accused has to say anything about the evidence of Mr. Gajendraprasad Shantilal Acharya, at Exh. 48. The question No. (v) is couched in a fashion showing as to whether the accused has anything to say as regards Exh. 44. Such two questions did not famish an opportunity to the accused to explain the incriminating important circumstances emerging against him from the said evidence. The important circumstances at Nos. (i), (ii) and (iii) as aforesaid are not explained and shown to the accused. What is required to be put to the accused is not put to him and what was not required to be put to him had been put to him. It was obligatory on the trial Magistrate to ask the accused about the aforesaid 3 circumstances, namely, (i), (ii), and (iii) and to put specific and separate questions arising from the evidence of hand-writing expert Mr. Acharya, at Ex. 48. It cannot be said even for a moment that there was sufficient compliance of the provisions of Section 313 of the Code. When a question is put to the accused person it must be such as clear and precise so as to attract the concentration and his attention on a single question to which his answer is required and not vague and broad question. The entire basis of the prosecution case is that stolen and forged bill No. 1590, at Exh. 34, is admittedly not shown and this circumstance is not put to the accused and this goes to the root of the prosecution version. The evidence of the hand-writing expert, at Exh. 48, is relied on by the prosecution. The evidence of the hand-writing expert is nothing but an opinion like any other opinion to be considered by the Court. An expert in any science who by practice and observation is qualified to express an opinion. However, such evidence cannot be taken substantive piece of evidence. It is to be used to corroborate other evidence. The opinion of the writing expert is relevant under Section 45 of the Indian Evidence Act. The Court can form an opinion in respect of hand-writing on the opinion of the expert or on the opinion of the person acquainted with the handwriting or by comparison by the Court itself. The Court is evidently not bound by the expert opinion which is merely an evidence in the case and that should be considered along with other evidence and circumstance appearing in the particular case. The report of the expert like hand-writing expert thus admitted an evidence is merely a piece of evidence which is not conclusive and liable to scrutiny by the Court before any reliance is placed on the same. Therefore, it is not in the provision that the expert is to act as a judge. The hand-writing expert’s evidence is to give opinion of the disputed writing with the proof or a hand-writing with regard to the point of similarity and dissimilarity in the two sets of writings. The Court, should then compare writings with its own eye, the proper assessment of the value of the detail evidence. It is held by the Supreme Court in case of “Magan Bihari Lal v. State of Punjab” , that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a hand-writing expert. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence, being opinion evidence, is by its very nature weak and infirm and cannot of itself form the basis for a conviction.
19. First of all prosecution has failed to prove in the present case that comparison by the hand-writing expert Mr. Acharya in his evidence that Was with a sample hand-writing of the accused which proved to be of the accused Mr. Zala. Apart from the nature of the evidence of handwriting expert, which is, incumbent upon the prosecution to prove that the comparison of handwriting of the accused was that the hand-writing of the accused. The prosecution has failed to prove, beyond reasonable doubt, that Exh. 19 an application made by the accused was in the hands of the accused. There is no evidence to prove, beyond doubt, that Exh. 44, an application in the hands of the accused. Thus, the prosecution has failed to prove that the sample handwriting of the accused person are produced, at Exh. 24 to 29, by preparing panchnama, at Exh. 23. The panch witness Rasulbhai Ibrahimbhai, at Exh. 22 has not supported the prosecution case. The evidence of panch creates doubt about the fact that the sample handwriting produced, at Exh. 22 to 29 were of accused persons.
20. The hand-writing expert has compared the hand-writings at Exh. 34, forged bill No. 1590 on the basis of Exh. 24 to 29 and at Exh. 19 and Exh. 44. The prosecution has not been proved beyond doubt, that the specimen or sample hand-writing at Exh. 24 to 29 were in the handwritings of accused Mr. Zala. Exh. 19 is application alleged to have been made by the accused for cement bags as Chairman of the Housing Society made to the said Sangh. This is not an admitted hand-writing. Therefore, the proof was required to prove that Exh. 19 was that of accused. An application alleged to have been made by the accused was collected by recording a panch now at Exh. 20 from the Sangh. The panch witness at Exh. 18, turned hostile. The panchnama is not proved beyond doubt. Consequently, Exh. 19 is not proved to be in the hands of the accused. Similarly, in case of Exh. 44 the prosecution has failed to prove that it was an application made by the accused to Dhrangadhra Chemicals Works, at Dhrangadhra. To prove the application at Exh. 44, prosecution relied on the evidence of one at time keeper of Chemical Works at Exh. 43, Mr. Bhatt. He has admitted in his evidence that he did not know as to whose hands contents at Exh. 44 were written. He has only stated that signature in Exh. 44 is not proved to be in the hands of accused Mr. Zala. Moreover at Exh. 43, Mr. Bhatt has also not been able to identify hand-writings of the accused at Exh. 34 and Exh. 19.
21. As can be seen from the evidence on record the basis of comparison of the hand-writing of accused is not established. Therefore, the evidence of the hand-writing expert at Exh. 48 cannot be relied on to prove that Exh. 34 disputed forged bill is in the hand-writings of accused Mr, Zala. The report of the hand-writing expert at Exh. 52 and his reasons at Exh. 53 coupled with evidence of hand-writing expert at Exh. 48 would not even constitute incriminating circumstances to prove the guilt of the accused, beyond doubt. Apart from that, the evidence of hand-writing expert taken as a whole, does not prove the guilt of the accused beyond doubt. No specific question is put to the accused in his examination under Section 313 of the Code prejudicing the evidence of handwriting expert at Exh. 48. Therefore, on all counts the evidence of handwriting expert, at Exh. 48, read with his report at Exh. 52, and his reasons at Exh. 53 would not indicate the guilt of the accused beyond doubt. As observed hereinbefore, the evidence of hand-writing expert is not a substantive piece of evidence. It can be used to corroborate the other evidence or circumstances. There is no any other evidence or circumstance which would even, remotely, indicate that the documents like Exh. 19 and Exh. 24 to 29 were in the hands of the accused No. 1, Mr. Zala.
22. It is, therefore, rightly, contended that the material incriminating circumstances appearing in the evidence of the prosecution against the accused Mr. Zala are not, clearly, properly, and specifically, shown or put to the accused in his examination under Section 313 of the Code which has resulted into serious prejudice to the accused and in the miscarriage of justice.
23. It is, also, seriously contended on behalf of the accused Mr. Zala, petitioner, original accused No. 1, Mr. Zala that there is a serious infirmity in the prosecution case in not examining the prosecution witness Shantilal Soni and Mohit Soni. This contention assumes greater significance in view of the fact that the circumstantial evidence carried on by the prosecution is not specifically and clearly put to the accused in his examination under Section 313 of the Code. No reasonable explanation is given by the prosecution as to why these two witnesses are not examined. Exh. 34, the bill alleged to have been forged by the accused is in favour of Shantilal Soni. The prosecution witness Mustafa, at Exh. 40, has, also turned hostile, to the prosecution version. He was working as Clerk at the relevant time with Shantilal Soni. Thus, the evidence of Mustafa does not help the prosecution any more. The panch witness Rasulbhai Ibrahim at Exh. 22, has also turned hostile. In this background, it has rightly been contended that serious prejudice is caused to the accused. The evidence of Jayendra Shantilal, at Ex. 39, also, does not prove the guilt of the accused beyond doubt. He was working as a clerk at the relevant time. He does not throw the material light on the allegation of the prosecution that the accused Mr. Zala had stolen and forged bill at Exh. 34. In fact, the prosecution witness Harunbhai Husseinbhai and the complainant Hemubha Natuji also did not prove the guilt of the accused beyond doubt. The learned trial Magistrate has seriously, criticised the evidence of both these witnesses. It is observed by the learned trial Magistrate that their evidence radiates an imprint of truth even then the learned trial Magistrate has placed reliance on the evidence of the two witnesses to convict the accused for the charges against him. The approach of the learned trial Magistrate is misconceived. The learned Additional Sessions Judge has also failed to appreciate the aforesaid discrepancies and infirmities in the evidence of the prosecution. In fact, it appears, with due respect, that the learned Additional Sessions Judge has not made any analytical appreciation of the evidence of the prosecution witnesses. The learned Additional Sessions Judge has also taken a wrong approach in confirming the conviction order by the learned trial Magistrate. The approach of the learned Additional Sessions Judge is not only perverse but is also, illegal in straightway placing reliance on the aforesaid evidence of the prosecution which has resulted into grave miscarriage of justice and serious prejudice to the accused. The evidence of investigation issued at Exh. 54 is also insufficient to prove the guilt of the accused. The prosecution witness Madhubhai Rathod who was the President of the Sangh at the relevant time has also not supported the prosecution version.
24. The Courts below have committed serious illegality in placing reliance on incriminating circumstances which were not put to the accused under Section 313 of the Code. When the accused is not given a chance to explain such incriminating circumstances or adverse points, the same cannot be used against the accused to prove his guilt. This proposition of law is very well settled. However, with due respect, the learned trial Magistrate and the learned Additional Sessions Judge have failed to appreciate the settled proposition of law which is manifestly culminating into the failure of justice and serious prejudice to the accused. The Courts have seriously failed to appreciate the importance of the rule putting to the accused each material fact intended to be used against him.
25. In the facts and circumstances of the present case this Court has no hesitation in holding that there is a total failure of justice and serious prejudice to the accused and therefore, the aforesaid errors and irregularities committed in the Court of proceedings in the Courts below are beyond the cure contemplated under Section 465 of the Code. It may not be contended even for a moment in the peculiar facts of the present case that the aforesaid discrepancy and lapses are curable under Section 465 of the Code. There is a manifest failure of justice and gross prejudice and injustice to the accused. Therefore, the prosecution is unable to take aids from the provision of Section 465 of the Code.
26. In the facts and circumstances of the present case in essence, the substance of charge appearing at Exh. 6 against the accused is put in a different language in his examination under Section 313 of the Code which is not permissible. There is no sufficient compliance of the provision of the Code. The Supreme Court in Ajmer Singh v. State of Punjab held that it is not sufficient compliance with the section to generally ask the accused that having heard the prosecution evidence what he has to say about it. The accused must be questioned separately about each material which is intended to be used against him. It is further held that the question must be fair and must be couched in a form which an ignorant and illiterate person will be able to appreciate and understand.
27. The Supreme Court in Machander v. State of Hyderabad has raised voice as early as, in 1955 in by holding that the Judges and Magistrates must realise the importance of the examination under Section 342 (313 of the new Code). It is the duty of the Court to question the accused properly and fairly, bringing home to his mind in clear and simple language the exact case he has to meet with and each material point that is sought to be pointed out against him and of affording him a chance to explain the circumstances against him, if he can and so desires. In view of the serious error and discrepancy the accused came to be acquitted from the serious charges under Section 300 of the I.P.C. in the said case. The said decision is also fully applicable to the facts of the present case.
28. Later on, in Harnam Singh v. State (Delhi Admn.) the Supreme Court has, also, held that if the material circumstances appearing against the accused are not put to him, there will be non-compliance of the provisions of Section 342 of the old Act (313 of the new Code). Whether the error committed by the Court was curable under old Section 537 (new 465 of the Code) was also examined by the Court and in the facts of the said case, it was held that it was curable. If the irregularity does not, in fact, occasion the failure of justice, it is curable under Section 465 of the Code. In the present case, there is a failure of justice and serious prejudice caused to the accused. Therefore, the prosecution is not in a position to make any slice of profit out of the provisions of Section 465 of the Code.
29. It, was. also, observed by the Supreme Court in the said case that three material witnesses were not examined. Therefore, non-compliance with the provisions of old Section 342 (Section 313 of the new Code) coupled with non-examination of three material witnesses had caused miscarriage of justice. These irregularities were found to have vitiated the trial. The conviction of the accused under Section 477A was quashed and in the circumstances the retrial was also not ordered. The grounds on which retrial was not ordered were the acquittal of co-accused and long delay between the commission of the offence and the decision. It may be, therefore, necessary to refer to para 26 of said decision which reads as under:
Further question to be considered is : Should the case be sent back for retrial? Again, answer to this question in the circumstances of the case, must be in the negative. Firstly, the appellant on account of his acquittal on the graver charge under Section 5(1) of the Prevention of Corruption Act stands exonerated of the allegation that he made these entries with any motive or intention to gain a pecuniary advantage. Secondly, his co-accused stands acquitted of all the charges. Thirdly, these proceedings against the accused commenced as far back as May 13, 1959 and the appellant has suffered enough privation, harassment and expense which is a necessary concomitant of protracted criminal proceedings.
30. In Harijan Megha Jesha v. State of Gujarat, this principle was also very well examined and explained. It is held that the circumstances against accused not put to him in his statement under Section 313 of the Code, prosecution cannot be permitted to rely on that circumstances in order to convict him particularly after his acquittal by the trial Court. In that case, the learned Additional Sessions Judge had acquitted the accused. On appeal to this Court by the State the accused was convicted for the offence punishable under Section 302. The accused was tried by the learned Sessions Judge, thus came to be convicted by this Court. The accused carried the matter to the Supreme Court and accused succeeded. The conviction order passed by this Court was reversed by the Supreme Court. In that case it was held that the circumstances against the accused relied on by the prosecution were not put to him in his statement under Section 313 of the Code and prosecution cannot be permitted to place reliance on such circumstances so as to hold the accused guilty.
31. The aforesaid decision of the Supreme Court was relied on by the Supreme Court in Sharad v. State of Maharashtra . The circumstances which are not put to the accused in his statement under Section 313 of the Code cannot be relied on by the prosecution to prove his guilt. The underlying principles under Section 313 of the Code are explained and settled. The decision of the Supreme Court and , also, relied on.
32. It is not necessary for this Court to multiply the authorities on this point as this question is settled long before and there is a catena of judicial pronouncements. It is very clear from the aforesaid decisions that all important material incriminating circumstances ought to be put to the accused in his examination under Section 313 of the Code in a proper and simple language so that the accused could be afforded with an opportunity to meet with the case of the prosecution. In case of non-compliance of the provisions of Section 313 of the Code, the circumstances and the incriminating material not put to the accused in his statement or examination under Section 313 of the Code will have to be totally excluded from the consideration.
33. The aforesaid circumstances at serial Nos. (1), (ii) and (hi) which are not at all put to the accused are required to be excluded. Similarly, the evidence of the hand-writing expert Mr. Acharya, at Exh. 48 is also required to be excluded. No question is put to the accused admittedly, in view of the aforesaid three circumstances at serial Nos. (i), (ii), (iii) and the manner and the mode in which the questions are put in respect of material circumstances at serial Nos. (iv) and (v) is too broad and vague. Therefore, the prosecution cannot place reliance on these circumstances and the material.
34. In view of the non-compliance of the provisions of Section 313 of the Code in respect of the aforesaid circumstances which are relied on by the prosecution coupled with the fact that two important witnesses who are not examined, the impugned conviction and sentence order cannot be maintained and the same is required to be quashed.
35. In view of the peculiar facts and circumstances and the fact that the incidence is of 1979, together with the fact that the accused No. 2 came to be acquitted from the charges, this Court does not find expedient in ordering retrial. Therefore, the accused No. 1 original accused No. 1-petitioner herein is required to be exonerated from the said charges against him. In view of the facts and circumstances of the case and the settled proposition of law, the impugned conviction and sentence order passed by the trial Court in Criminal Case No. 884 of 1982 and confirmed by the Additional Sessions Judge, Surendranagar in Criminal Appeal No. 128 of 1983 is set aside. The petitioner herein who is the original accused No. 1 is acquitted from the charges under Sections 380, 465 and 468 of the Indian Penal Code. The amount of fine, if any, shall be refunded to the original accused No. 1-petitioner herein Mr. Zala.
In the result, the revision is allowed accordingly. Rule made absolute.