JAMNADAS NANUBHAI KANSARA Vs. (THE) STATE OF GUJARAT
LAWS(GJH)-1983-8-32
HIGH COURT OF GUJARAT
Decided on August 09,1983

Jamnadas Nanubhai Kansara Appellant
VERSUS
(The) State Of Gujarat Respondents

JUDGEMENT

D.C.GHEEWALA, J. - (1.) What the witnesses have deposed before the Court on oath alone can be treated as substantive piece of legal evidence and it is only the evidence adduced by the prosecution Which can be used against the accused. The learned Judge's reliance upon the contents of complaint Exhibit 18 was totally misplaced inasmuch as it is the cardinal principle of criminal jurisprudence that a complaint in a criminal case cannot be used as substantive piece of evidence. The learned trial judge while relying upon the contents of the complaint fell in an obvious error which a senior judicial officer should not have fallen into. (B) Code of Criminal Procedure, 1973 S. 313 Section gives power to the Court to examine the accused and not to cross-examine Circumstance establishing guilt and appearing from prosecution evidence must be put to the accused who has then to render explanation Question regarding fact which is not established and circumstance not culled out from the prosecution evidence cannot be the basis of a question u/s 313 Cr. P.C. A circumstance which is not established cannot be used as basis of a question.
(2.) Section 313 Cr.P.C. gives power to the Court to examine an accused and the purport of the said statutory provision is that the accused should be given an opportunity to explain those circumstances which are firmly established against him and upon which reliance can be placed by the prosecution and which could be used for passing an order of conviction. The sine qua non of the question to be put under Section 313 Cr.P.C. would be that a circumstance must appear from the evidence adduced by the prosecution and that circumstance must be such that it establishes the guilt of the accused. The accused then is to be given an opportunity to render an explanation for the said circumstance. If the prosecution evidence does not establish a particular fact then the accused cannot be questioned on that aspect. What is provided under Section 313 Cr.P.C is the power given to the Court to examine the accused, but not to cross-examine. To ask accused a question regarding the fact which is not established from the prosecution evidence and Which does not cull out the circumstance appearing against the accused can never be the basis of a question to be asked to the accused. A circumstance which is not established by the prosecution evidence cannot be used as the basis of a question. (C) Criminal Trial The Court can only act upon legal evidence which is found acceptable While deciding a matter judicially sentiments have no place More heinous the crime, greater is the responsibility of the Court The Judge may be convinced about the guilt of accused, but in absence of legal evidence no verdict of guilt can be pronounced.
(3.) While the court is conscious of the fact that a most brutal murder is likely to go unpunished as a result of witnesses turning hostile, sentiments have no place while deciding a matter judicially and howsoever strong the sentiment of a Judge or a presiding officer may be, the Court can only act upon legal evidence which is found acceptable by the Court. More heinous the crime, greater is the responsibility of the Court to address itself with greater perspicacity and precaution, while the judge may be convinced upto a point of moral certainty about the guilt of the accused, if there is no legal evidence to connect the accused with the crime no verdict of guilt can be pronounced against the accused. Appeal allowed. ;


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