B.R.ARORA, J. - (1.) THE petitioners, by this petition under Section 482 Cr.P.C. have prayed that a direction may be issued to the learned Additional Sessions Judge, Bali, not to use the statements of the prosecution witnesses recorded under Section 161 Cr, P.C. as a substantive piece of evidence in putting questions to the accused under Section 313 Cr.P.C.
(2.) IT is contended by the learned Counsel for the petitioners that in this case while putting questions to the accused persons under Section 313 Cr. P.C, the learned Additional Sessions Judge, Bali has utilized the statement of the witnesses recorded by the police under Section 161 Cr.P.C. Learned Counsel for the petitioners, alongwith the petition under Section 482 Cr.P.C. has appended Schedule -I, which according to the learned Counsel for the petitioners, reveal that the contents of the question in relation to the statement of PW 2 Nana, PW 3 Ashiya, PW 6 Kalu, PW 8 Soma, PW 9 Bagga, PW 11 Ugam Kanwar and PW 24 Dhanna Ram, do not find place in their statements recorded by the Court during trial. These witnesses, according to the learned Counsel for the petitioner, were declared hostile and whatever has been stated by these witnesses in their police statement under Section 161 Cr. P.C, has been put to the accused -petitioners in their statement recorded under Section 313 Cr.P.C. Learned Counsel for the complainant Shri Mohnani and the learned Public Prosecutor do not challenge the factual aspect of the case and submit that of course the error has been committed by the learned Additional Sessions Judge in questioning the accused under Section 313 Cr.P.C. on the basis of the statement of the witnesses recorded under Section 161 Cr.P.C. Section 313 Cr.P.C. casts a duty on the Court to question the accused on the circumstances appearing against him in the evidence so as to enable him to explain the same. Each material circumstance appearing against the accused in evidence should be put to him specifically and distinctly. The object of Section 313 Cr.P.C. is that the accused may be given an opportunity of explaining each and every circumstance appearing against him in evidence. Unless the circumstance against the accused in evidence is put to him under Section 313 Cr.P.C. the same cannot be read against him. According to Section 3 of the Indian Evidence Act, 'evidence' means and includes (1) all statements which the Court permits or requires to be made before it by the witnesses, in relation to matters off act under enquiry; and (2) all documents produced for the inspection of the Court. The statement recorded under Section 161 Cr.P.C. by the Investigating Officer during investigation, can be used to contradict a witness in the manner provided, by Section 145 of the. Evidence Act, for ascertaining the credibility of the witness and not for any other purpose. These statements cannot lake place of the evidence in Court and cannot be used as a substantive evidence because Section 162 Cr.P.C. imposes a bar on the use of these statements made in the course of investigation before a person who is a Police Officer. The learned Additional Sessions Judge, Bali, while putting questions to the accused -petitioners under Section 313 Cr.P.C. accepted the statements of the witnesses recorded under Section 161 Cr.P.C. as a substantive piece of evidence and put questions to the accused on the basis of these statements. These statements, therefore, cannot be allowed to go on record in view of the bar of Section 162 Cr.P.C. Earlier, also, the learned Additional Sessions Judge, Bali, put questions to the accused under Section 313 Cr.P.C. which was challenged by the petitioners before this Court. While allowing the Miscellaneous Petition under Section 482 Cr.P.C. on 14 -8 -1992, the learned Additional Sessions Judge was directed to re -examine the accused -persons in respect of evidence made by the witnesses at the time of trial. The same error has again been committed by the learned trial Judge while examining the accused -persons under Section 313 Cr.P.C. by completely ignoring the basic principles of law.
(3.) IN the result, the miscellaneous petition, filed by the petitioners, is allowed and the learned Additional Sessions Judge, Bali, is directed to re -frame the questions under Section 313 Cr.P.C. and put to the accused only those circumstances appearing in the evidence of the prosecution witnesses during trial and on the basis of the documents produced for the inspection of the Court and not to frame the questions on the basis of the statement recorded under Section 161 Cr. P.C, which cannot take place of the evidence and is not substantive piece of evidence. The learned Additional Sessions Judge, Bali, is further directed to complete the trial within a period of three months from today.;