Crl.A. 2/2003 BEFORE THE HON’BLE MR. JUSTICE P.K. MUSAHARY Heard Mr. M. Singh, learned counsel for the appellant. Also heard Mr. B.B. Gogoi , learned Addl. P.P. Assam for the State respondent. 2. By the judgment dated 26.11.2002 passed by the learned Sessions Judge, H ailakandi in Sessions Case No. 72/2000 the appellants were convicted and sentenc ed u/s. 324/34 IPC to undergo RI for 3 years and to pay Rs. 2,000/- each, in def ault RI for another period for 4 months and also sentenced to undergo RI for 5 y ears and to pay fine of Rs. 5,000/- each, in default RI for a further period of 6 months u/s. 307/34 IPC, both the sentences being directed to run concurrently. This is under challenge in this appeal. 3. The prosecution case, in brief, is that on 19.3.99, one Sri Subodh Roy s /o. late Surendra Chandra Roy under Algapur P.S. lodged an ejahar to the Officer -in-charge of Algapur P.S. alleging that on 19.3.99 at about 2 p.m., his brother Satyendra Roy alias Kutlai went to his ceiling surplus allotted land at Chandip ur grant for cutting bamboos. At that time accused/ appellants Hamil Khasia, Wan chu Khasia and Renu Khasia confined him and began to assault him with fists and blows. Hearing his cry, his brother Monilal Roy came forward to rescue him but Hamil Khasia fired at Monilal from a gun. As a result, Monilal fell down sustai ning severe bullet injuries on his person and he was taken to Silchar Medical Co llege and Hospital for treatment. The accused/ appellants also assaulted his cou sin Digendra and Bijoy Roy causing injuries on their persons. Accused/ appellant Wanchu was also carrying having a gun and while he aimed at them, he was over-p owered by them. On hearing their cries, the nearby people came to the spot and s natched away the gun from the hand of Wanchu which was subsequently handed over to the Police. On receiving the said ejahar, the O/C Algapur Police Station regi stered a case being Algapur P.S. Case No. 30/99 under sections 341/323/326/307 IPC and started investigation. The police on completion of the investigation, submitted charge-sheet ag ainst all the accused persons under the aforesaid sections of law and the case w as committed to the Court of Sessions at Hailakandi for trial. Thereafter charge s were framed against the appellants u/s. 341/3326/307/34 IPC and the charges, b eing read over and explained, they pleaded not guilty and claimed to stand the trial. During trial the prosecution examined as many as 7 witnesses including t he medical officer and the I.O. The learned Trial Court after recording evidence of the prosecution recorded the statement of the appellants u/s. 313 Cr.P.C., who denied all the allegations and declined to adduce any evidence. Then, after hearing the parties and on consideration of the evidence on record, awarded conv iction and sentence as mentioned above. 4. From the evidence of the prosecution, particularly, PW 1, it is found th at there was a dispute between the informant party and appellants over the poss ession of land which has been claimed by both the parties as their own. Accordin g to PW 1, Sri Subodh Roy got the land in question allotted by the government as a ceiling surplus land which the accused appellants wanted to grab and merge wi th their adjacent plot of land. 5. I have gone through the questions put by the learned trial Court and the replies of the accused appellants. They have been put only one and same questio n without bringing to their notice the other facts and circumstances appearing a gainst them and without offering opportunity to explain them. This, in my consid ered view, has caused prejudice to the appellants. It has been held in Janak Yad av & others Vs. State of Bihar reported in (1999) 9 SCC 125 that the opportunit y provided to the accused u/s. 313 is valuable one inasmuch as it prescribes a p rocedural safeguard for an accused facing the trial and the same can not be igno red. The purpose of examining the accused persons u/s. 313 Cr.P.C. has been expl ained in Basavaraj R. Patil & others Vs. State of Karnataka & others, reported i n (2000) 8 SCC 740. Paragraphs 19 and 20 from the said judgment are as worth quo ting as appreciating for all :- 19. Thus it is well settled that the provision is mainly intended to be nefit the accused and as its corollary to benefit the court in reaching the fina l conclusion. 20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary p rinciple of natural justice enshrined in the maxim audi alteram partem. The word may in clause (a) of sub-section (1) in Section 313 of the Code indicates, wi thout any doubt, that even if the court does not put any question under that cla use the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a ha ndicap to the accused and he can legitimately claim that no evidence, without af fording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain can not be used against him. 6. I may add that examination of accused under section 313 Cr.P.C. is not a mere formality rather it is within an useful right under the principle of natur al justice as because a fact or circumstances found or appearing to be incrimina ting in the prosecution evidence can not be used by the Court as a foundation fo r conviction without making a reference to the same and providing opportunity to the accused concerned to explain in his own way. In the present case, the learn ed trial court brought only a part of the incriminating facts and circumstances to the appellants and hence there is a partial compliance of the mandate under S ection 313 Cr.P.C. which is impermissible under the law inasmuch as such partial compliance would cause prejudice to the present accused appellants. 7. In view of the above, the impugned judgment dated 26.11.2002 convicting and sentencing the accused appellants is liable to be quashed and it is accordin gly quashed. The learned Trial Court is directed to examine the accused appellan ts u/s. 313 Cr.P.C. providing them opportunity to explain all the facts and circ umstances appearing to be incriminating and after recording their statements pro ceed with the hearing and deliver judgment in accordance with law. 8. The criminal appeal stands disposed of. 9. Return the LCR forthwith. On receipt of the LCR the learned Trial Court shall issue notice to the parties fixing a date for appearance and for hearing. The learned Trial Court shall dispose of the matter within a period of 3 (three) months from the date of receipt of the LCR.