1. This is an appeal on behalf of the accused against the sentence and conviction passed by the Court below. From a perusal of the judgment it appears that the accused was charge-sheeted under Section 376, I.P.C. The Prosecution story is that the accused saw Siddavva with her brother in the field known as Malganhola, where her cattle were grazing. He induced her to take the cattle to another field known as Ganganhola stating that there was sufficient grass.
Siddavva, taking him at his word, accompanied the accused along with her brother to that field; taut after sometime the accused told her that the owner of the field was coming and they should leave the field.
Hearing this Siddavva's brother started running and Siddavva too followed him. The accused caught hold of her from Behind, pushed her and when she fell down he sat on her chest and raped her by thrusting a cloth in her mouth and putting her hands behind her back. With these allegations a challan was filed against the accused. The accused denied the charges.
On behalf of the prosecution nine witnesses were examined. The accused produced one defence witness. The learned Magistrate on the evidence found the accused guilty and sentenced him to five years' rigorous imprisonment. Aggrieved by the judgment, the accused has come before us in appeal.
2. The learned Advocate for the accused has advanced various arguments. But the main objection which deserves consideration is that the Court below has not complied with the provisions of Section 342, Cr.P.C, and that is sufficient to vitiate the trial.
We may point out that It is not every error and omission in compliance with the provision, of Section 342, Cr.P.C, that vitiates the trial. Such errors are curable irregularities and unless they are of such magnitude as to occasion serious prejudice to the accused, no question of vitiating the trial can arise.
We are supported in this view by the decision of their Lordships of the Supreme Court in the case of--'Ajmer Singh v. State of Punjab' : 1953CriLJ521 . But the question first to be determined is whether the provisions of Section 342, Cr.P.C, have been fully complied with. It has been observed by their Lordships of the Supreme Court in the case of--'Tara Singh v. The State' : 2SCR729 :
The Whole object of the examination under Section 342, Cr.P.C, is to afford the accused a fair and proper Opportunity of explaining the circumstances which appear against him in the evidence.
It has been further observed that:
the accused must be questioned separately about each material circumstance which is intended to be used against him.... The questioning must be fair and must be couched in a form which ignorant or illiterate person will be able to appreciate and understand.
This principle has been followed in later decisions also (vide--'Kedar Nath v. State of West Bengal : AIR1954SC660 and--'Bihari Singh Madho Singh v. State of Bihar' : AIR1954SC692 ). As this provision confers a valuable right on the accused its due and faithful observance cannot be over-emphasised.
But we find that in spite of such clear directions, the Courts below are not strictly complying with the provisions of the said Section. In this connection we may further point out that in a large number of cases which have come before us, we have also found that the questions put by the Judges and Magistrates are not in proper form.
There are questions put in the nature of cross-examination, and also questions which are complex and incriminating sufficient to embarrass the accused. This sort of practice has not been approved of by their Lordships of the Supreme Court in the cases mentioned above.
3. In the present case, the learned Judge has put the following questions:
1) Q: Have you got any field in Ganganhola or Malganhola?
A: Yes Sir, I have got a field in Ganganhola.
2) Q: Do you go to your field every day?
A: I do go.
3) Q: About 7 or 8 months back on 6-9-1954 was Siddavva grazing her cattle in her field. Malganhola?
A: I have not seen.
4) Q: Did you induce her to graze her cattle in Ganganhola?
5) Q; Did she have any injuries; do you know?
A: I don't know.
6) Q: Did the Police recover axe from you? A: No.
7) Q: Siddavva, Ramchandra and Mulkappa, state that you consorted with Siddavva, what do you say?
A: I have not raped her.
8) Q; Why were you prosecuted?
A: There is a dispute between Gorayya and myself in respect of an open place; due to the enmity this case is Prepared.
9) Q: Do you want to say anything?
All the questions apart from their objectionable form in which they are put, do not relate to any circumstance appearing in the evidence against the accused. Some of them relate to the matter which the Court itself had to decide.
The object of examination under Section 342, Cr. P.C, is to acquaint the accused with all the circumstances appearing in the evidence against; him and to give him an opportunity to explain these circumstances. Not a single question indicates any of the circumstances which the Court Intended to use as proof of the question it had to determine.
The Court could not in law use such proof or circumstances against the accused unless he was given a fair and proper opportunity to explain. The questions put to the accused, in the present case, besides are in the nature of cross-examination and not as contemplated by Section 342, Cr.P.C, Certainly conviction under these circumstances cannot be upheld.
But the question is whether the accused is entitled to acquittal on that account or a retrial should be ordered and if so from what stage. We have given our anxious thought to this question. As non-compliance with the provisions of Section 342, Cr.P.C, is a mere irregularity curable Under Section 537, Cr.P.C, the question of acquittal does not arise.
Having regard to the nature of the offence and circumstances of the case, we are of the opinion that there should be retrial and that from the stage at which the irregularity occurred, i.e., the stage of examining the accused under Section 342, Cr. P.C. We do not wish to observe more than this or on the merits of the case lest this may prejudice the accused one way or the other.
4. Appeal is, therefore, allowed, the conviction and sentence set aside and the case is sent back to the District Court at Gulberga, with the direction that it should examine the accused under Section 342, Cr.P.C, afresh as directed above and complete the trial after recording the defence evidence and dispose of the case on the merits according to law.