LexSTATE OF PUNJAB versus NAIB DIN
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
B
c
D
STATE OF PUNJAB
v.
NAIB DIN
SEPTEMBER 28, 2001
[K.T. THOMAS AND S.N. VARIAVA, JJ.]
Criminal Procedure Code, 1973-Sections 296 and 313-Formal
Evidence-Deposition of-On affidavit deponents not cross-examined-:-
No request for cross-examination Failure to put question to the accused
regatding the evidence-Conviction set aside by High Court in Revisional
Jurisdiction-On appeal held acqui~tal not just{fied-Failure to put question
to the accused is too insufficient .for holding that the proceedings were
vitiated-Even if such evidence is of vital nature effort should be made to undo
or correct that lapse-And if it cannot be corrected, court should consider the
impact of the lapse on the overall aspect of the case-Opium Act, 1857-
Section 9.
Respondent-accused was convicted under Section 9 of the Opium
Act 1857. In the trial court two police officers who had handled the opium
and taken the same to chemical examiner had deposed on affidavit. Accused
E
made no request to summon the deponents for cross-examination.
Conviction, in appeal was confirmed by Sessions Court. High Court, in the
revision petition quashed the conviction of the accused-respondent on the
ground that deponents were not tendered for cross-examination; and that
the affidavits were also not put to the accused for the purpose of his
F
statement under Section 313 Cr.P.C. Hence this appeal.
Allowing the appeal and remitting the case back to the High Court,
the Court
HELD : 1. In the present case, the facts stated in the affidavit were
G
purely of a formal character. At any rate, even the defence could not
dispute that aspect because no request or motion was made on behalf of
the accused to summon the deponents of those affidavits to be examined in
Court. In such a situation it was quite improper that the High Court used
such a premise for setting aside the conviction and sentence passed on the
H
respondent, that too in revisional proceedings. [400-E]
396
t
STATE v. NAIB DIN [THOMAS, J.]
397
2.1. In observing that the contents ofthe affidavit were not put to the
accused during the examination under Section 313 of the Code, the Court
over-looked the formal nature of the evidence. It was too pedantic an
insistence on the part of the High Court that every item of evidence, even
of a formal nature, should also form part of the questions under Section
313 of the Code. [400-F; G)
2.2. The omission to put the question concerning evidenc~ which is
purely of a formal nature, is too insufficient for holding thatthe proceedings
were vitiated. Respondent failed to show that there ras any failure of
justice on account of the omission to put a question concerning such formal
evidence when he was examined under Section 313 of the Code. No
objection was raised in the trial court on the ground of such omission.
No ground was taken up in the appellate court on such ground. If
such objection was not raised at appellate stage the revisional court
should not normally boother about it. If any appellate court or revisional
court comes across that the trial court had ·not put any question to an
accused even if it is of a vital nature, such omission alone should not result
in setting aside the conviction and sentence as an inevitable consequence.
Effort should be made to undo or correcl the lapse. If it is not possible to
correct it by any means the Court should then consider the impact of the
lapse on the ov-erall aspect of the case. After keeping that particular item of
evidence aside, if the remaining evidence is sufficient to bring home the
guilt of the accused, the lapse does not matter much, and can be sidelined
justifiably. But if the lapse is so vital as would affect the entire case, the
appellate or revisional court can endeavour to see whether it could be
rectified. [ 400-H; 401-A; B; C]
Shivaji Sahabrao Bobade v. State of Maharashtra, [1973) 2 SCC 793
and Basavaraj Patil v. State of Karnataka, [2000] 8 SCC 740, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 995
of 2001.
From the Judgment and Order dated 15.2.2001 of the Punjab and Haryana
High Court in Crl. R. No. 1323 of 1988.
Seeraj Bagga and R.S. Suri for the Appellant.
The Judgment of the Court was delivered by
A
B
c
D
E
F
G
H
398
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
THOMAS, J. Leave granted.
B
c
D
E
,F
The evidence of a policeman was tendered in a criminal trial by means
of an affidavjt but iExcerpt shown. Read the full judgment & AI analysis in Lexace.