Crl.A. 154/2003 BEFORE THE HON’BLE MR. JUSTICE P K MUSAHARY Heard Mr. Thakur , learned counsel for the appellant as well as Mr. B B Gogoi, learned Additional Public Prosecutor for the State. This appeal is directed against the Judgment dated 31.03.2003 passed by the Addi tional Sessions Judge, Jorhat in Sessions Case No. 7 of 2001, convicting the acc used appellants under section 323 of the IPC and sentencing them to undergo rig orous imprisonment for 6 (six) months with fine of Rs. 1,000/- and in default o f payment of fine, to undergo another rigorous imprisonment for 2 (two) months a nd also convicting them under section 324 of the IPC and sentencing them to suff er rigorous imprisonment for 2 (two) years and fine of Rs. 3,000/- in default of payment of fine to undergo another rigorous imprisonment for 4 (four) months. The prosecution story is based on a GD entry dated 29.01.1998 of Teok Police Sta tion and a subsequent written FIR lodged by one Smti Sarumai Borgohain dated 29. 01.1998, wherein it was alleged that the appellants assaulted her sons Rajat Bor gohain and Ranjan Borgohain including her husband Khagen Borgohain and in the sa id assault her son Rajat Borgohain, aged about 15 years died. Her another son Ra njan also received injury. The aforesaid FIR was received and registered as Teok Police Station Case No. 8 of 1998 under section 147/ 325 IPC. After completion of the investigation, chargesheet was submitted under section 147/ 448/ 323/ 324 / 302 IPC. Charges were then framed against the accused appellants under the afo resaid sections of IPC. During the trial, the prosecution examined 9 (nine) witnesses, while the defence examined none. The appellants pleaded not guilty and took the plea of total den ial . After a full dress trial and hearing, learned Trial Court convicted and se ntenced the accused / appellants as indicated above. Mr. Thakur, learned counsel for the appellants has taken me through the evidence and materials on record and submitted that a great prejudice has been caused to the appellants by way of not putting questions on the evidence tendered by the prosecution witnesses which are incriminating in nature and against the appellan ts. Due to such lacunae in the examination of the accused persons in the examina tion under section 313 Cr.P.C., the appellants have been denied the opportunity of explaining the incriminating and inculpatory materials against them. I have gone through the questions put by the learned Trial Court to the accused persons while examning them under section 313 Cr.P.C. and found that the learned Trial Court did not put questions on all the incriminating part of the evidence on record which require explanation from the accused persons. The established l aw is that a fact or circumstance appearing to be incriminating in the prosecuti on evidence cannot be used by Court for basing conviction without making any re ference whatsoever to any statement made by a particular witness. Moreover, it i s also the established position of law that recording of statement under section 313 of the Cr.P.C. is not a mere formality but an important requirement of law in as much as it provides an opportunity to the accused persons to explain the incriminating circumstances before their conviction . I deem it proper to refer to and quote from paragraphs 13 and 14 of judgment in Ajay Singh -vs- State of M aharashtra (2007) 12 SCC 341 : 13. The object of examination under this section is to give the accused an opp ortunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the a ccused to discharge , it depends on the facts and circumstances of the case if s uch statement discharges the onus. 14. The word generally in sub-section (1) (b) does not limit the nature of th e questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and sh ould also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, wh at are the circumstances which are against him and for which an explanation is n eeded. The whole object of the section is to afford the accused a fair and prope r opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illit erate person will be able to appreciate and understand. A conviction based on th e accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evid ence on which the prosecution claims that the case is made out against the accus ed so that he may be able to give such explanation as he desires to give. In my considered view, a great prejudice would be caused to the accused/ appella nts if the aforesaid opportunity is not provided to them. Moreover, it is the de mand of the fair trial as envisaged in the administration of criminal justice. In view of the above, there is no other option but to interfere with the impugne d judgment dated 31.3.2003 passed by the learned Trial Court and consequently to set aside / quash the same. The impugned judgment dated 31.3.2003 passed by lea rned Trial Curt in Sessions case No.7/2001 accordingly stands quashed. The appea l stands remanded to the learned Sessions Judge, Jorhat with the following dire ctions:- (1) the accused persons shall be examined afresh under section 313 Cr.P.C. i n simple questions adhering and befitting with the evidence and circumstances ap pearing against the accused persons (2) hear the arguments/ submissions of the parties afresh (3) write and deliver a fresh judgment and dispose of the case as per proced ure of law within a period of 4 (four) months from the date of receipt of the l ower Court record. It has been submitted by Mr. Thakur, learned counsel for the appellants that the accused/ appellants have been remaining on bail by virtue of order dated 06.05 .2003 passed by this Court in Criminal Misc. Case No. 146 of 2003. This being so , the accused/ appellants are allowed to remain on bail till disposal of the Ses sions Case No. 7 of 2001. Send down the LCR forthwith.