Crl.A. 82/2006 BEFORE THE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR THE HON’BLE MR JUSTICE A K GOSWAMI JUDGMENT (Goswami, J) Criminal Appeal No 82/2006 This appeal is directed against the judgment and order dated 16.6.2006 p assed by the learned Sessions Judge, Golaghat, in Sessions Case No 50/2005, conv icting the accused appellant under section 302 IPC and sentencing him to suffer imprisonment for life and to pay fine of ‘. 5,000.00, in default, rigorous impr isonment for one year, for committing the offence of murder by intentionally cau sing death of one Haren Goraik. 2. We have heard Mr P K Deka, learned Amicus Curiae and Mr Z Kamar, learned PP, Assam. 3. Smt. Sumitra Goraik, wife of the deceased Haren Goraik, had filed an eja har before the Officer-in-Charge, Kamarbandha Police Station on 11/1/2005, stati ng therein that on 10/1/2005, at about 4:30 PM, the accused appellant, Gopal Gor aik @ Bubai, hacked her husband with a Kalam Katari (pruning knife), at the of fice premises of the tea estate while he was on duty. Her husband suffered serio us injuries and accordingly, he was shifted to the Golaghat Civil Hospital by th e garden authorities. However, he had succumbed to his injuries at 6:30 PM on th e very day. On the basis of the ejahar, Golaghat Police Station Case No 25/2005 under section 302 IPC was registered. 4. The investigation was started and finding sufficient materials against t he accused appellant, charge sheet was submitted under section 302 IPC. As the c ase was exclusively triable by the Court of Sessions, the case was committed by the learned Magistrate to the Court of the learned Sessions Judge, Golaghat. 5. The learned trial Court framed charge under section 302 IPC. Charges hav ing been read over to the accused appellant, he pleaded not guilty and claim to be tried. 6. During the trial prosecution examined 14 witnesses. Defence adduced no e vidence. PW-1, the wife, is a reported witness. PW-2, who is the president of t he Labour Sangha of Dakhin Bhangra Tea Estate, where the deceased was working, a lso did not witness the incident. He was, however, a witness to the inquest repo rt, Ext- 1. 7. PW-3 is also an employee in the tea garden. He saw the deceased (then in jured), when he was in the process of being shifted to a vehicle, for the purpos e of taking him to Golaghat Civil Hospital. According to him, the deceased was n ot in a position to speak. He was also a witness to Ext-1. 8. PWs-4, 5, 6, 9 and 10 claimed to be eye witnesses of incident of accuse d appellant hitting / cutting the deceased with a pruning knife and they gave t heir versions of the incident. PW 7 was a reported witness and he did not contr ibute anything towards furthering the prosecution case. 9. PW-8 is the doctor who had conducted post mortem examination on the dea d body of Haren Goraik. 10. PW- 11, 12 and 13 were witnesses to the seizure list, Ext- 2, by which one pruning knife stained with blood, was seized, when the same was produced by the accused from the backside of the house of PW 12. 11. PW 14 is the Investigating Officer. In his deposition, he stated that the accused surrendered on 13.1.05 at about 3.00 PM and on interrogation, he had stated that he had cut one Haren Goraik with a pruning knife and had kept the w eapon used in the assault in the house of PW- 12. He had also stated that the po lice was led by the accused appellant to the house of PW- 12 and on being asked by the accused, PW- 12 had produced the pruning knife, M. Ext-1. 12. The learned trial Court relied on the evidence of PWs- 4, 5, 6, 9, 10, 1 1, 12 and 13 as eye witnesses and took a view that the defence could not discred it their testimony. It is to be noted that PWs- 11, 12 and 13 were not eye witne sses but were witnesses to the seizure list, Ext-2. The learned trial Court als o appears to have accepted the version of the prosecution with regard to the rec overy of the M. Ext- 1, pruning knife, at the instance of the accused appellant. The learned trial Court, after examination of the accused under Section 313 CrP C, took the view that the prosecution had been able to establish the guilt of t he accused appellant beyond reasonable doubt and accordingly, convicted him for committing offence of murder under section 302 IPC. 13. Learned Amicus Curiae, after outlying the prosecution case, in brief, ha d drawn our attention to the examination of the accused under section 313 CrPC. According to him, the learned trial Court without any application of mind mecha nically put certain questions to the accused appellant and such questions leave a lot to be desired. He further submits that the learned trial Court appeared t o have been totally oblivious of the purpose for which section 313 CrPC finds p lace in the statute. He submits that cursory nature of examination has deprived the accused appellant the opportunity of explaining the circumstances appearing against him, warranting setting aside of the order of conviction of the accused appellant and a direction to the learned trial Court for disposal of the case afresh after examining the appellant under section 313 Code of Criminal Procedu re, 1973, in accordance with law. The learned Amicus Curiae has placed reliance on the following decisions of the Apex Court (1) Kuldip Singh and others Vs State of Delhi, reported in (2003) 12 SCC 528. (2) Ajay Singh Vs State of Maharastra, reported in (2007) 12 SCC 341. (3) Suraj Gupta and others Vs State of Mghalaya, reported in 2010 (3) GLT 22 5. (4) SH Lalsangzuala Vs State of Mizoram, reported in 2011 (1) GLT 47. 14. In view of the submissions of the learned Amicus Curiae, we consider it appropriate to reproduce the examination of the accused appellant, in its entire ty. Question - Shri Naren Neog, PW - 4 deposed that on 10.1.2005 on hearing hallah , he saw you are assaulting Horen Goraik with a Kalam Katari. What do you say ? Answer - No. I am innocent. Question - PW - 4 further deposed that Shri Sonaram Bauri with a Belsa hit on your hand having Kalam Katari and one Natrat Mahmmad had also assaulted on yo ur hand with a view to save Horen Goraik. What do you say ? Answer - No. I am innocent. Question - Md Ramjan Ali, PW - 6 deposed that on 10.1.2005 on your hearing hallah, he came out from the office and saw that you are assaulting Horen Goraik with a Kalam Katari and he threw a piece of brick towards you with a view to sa ve Horen Goraik. What do you say ? Answer - No. I am innocent. Question - Whether you state anything about the occurrence ? Answer - No. Question - Whether you will adduce any evidence in your defence ? Answer - No. 15. We have already indicated, albeit, very briefly, the nature of the evide nce appearing against the accused appellant. We are dismayed by the farcical nat ure of the examination of the accused appellant conducted by the learned trial C ourt . It gives the impression that the examination of the accused appellant und er section 313 CrPC was an avoidable ritual and that the same has no role at all in a criminal trial. The learned trial Court discharged its responsibility by m erely asking a few questions on the basis of testimony of PWs- 4 and 6 only, wi thout adverting to other materials on record, on which the learned trial court h ad placed reliance. 16. To appreciate the scope and purpose of Section 313 CrPC, we consider it expedient to quote the section below for ready reference: 313. Power to examine the accused. ¾ (1) In every inquiry or trial, f or the purpose of enabling the accused personally to explain any circumstances a ppearing in the evidence against him, the Court ¾ (a) may at any stage, without previously warning the accused put such questi ons to him as the Court considers necessary (b) shall after the witnesses for the prosecution have been examined and bef ore he is called on for his defence question him generally on the case: Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under claus e (b). (2) No oath shall be administered to the accused when he is examined under sub-s ection (1). (3) The accused shall not render himself liable to punishment by refusing to ans wer such question, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inq uiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has comm itted. . 17. It will also be apposite to state that in the earlier Code of Criminal P rocedure, 1898, power to examine an accused was found in section 342. We also ex tract section 342 of the earlier Code hereinbelow: 342. (1) For the purpose of enabling the accused to explain any ci rcumstances appearing in the evidence against him, the Court may, at any stage o f any inquiry or trial without previously warning the accused, put such question s to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to ans wer such questions, or by giving false answers to them; but the Court and the ju ry (if any) may draw such inference from such refusal or answers as it thinks ju st. (3) The answers given by the accused may be taken into consideration in such in quiry or trial, and put in evidence for or against him in any other inquiry into , or trial for, any other offence which such answers may tend to show he has com mitted. (4) No oath shall be administered to the accused when he is examined under sub- section (1). . 18. Comparison of two sections extracted hereinabove would show that sub-sec tion (1) of the present section 313 corresponds to section (1) of the old Code. However, sub-section has been re-arranged. The word personally has been added after the words accused in the expression for the purpose of enabling the a ccused to explain any circumstance appearing in the evidence against him and th e proviso has been newly added. Sub-section (2) corresponds to sub-section (4) of the old Code. Sub-section (3) corresponds to sub-section (2) of Old Code. The provision for drawing inference for the refusal to give answer or to give false answer appearing in old sub-section (2) has been omitted in the present section . Sub-section (4) corresponds to sub-section (3) of the old Code. 19. The basic purpose of section 313 CrPC as it stands today is to give an o pportunity to the accused to personally explain the circumstances appearing ag ainst him in the evidence and that is why the word personally has now found a place in the present section 313 CrPC. This is significant because his statemen t can be taken into consideration in judging his innocence or guilt. 20. In Tara Singh Vs State of Punjab, reported in AIR 1951 SC 441, in the c ontext of section 342 of the earlier Code, the Apex Court had stated that it can not stress too strongly the importance of observing faithfully and fairly the pr ovisions of section 342 of the Code and it is not sufficient compliance to strin g together a long series of facts and ask the accused what he had to say about t hem. Bearing in mind the aim and object of the section, which is to afford a fai r and proper opportunity of explaining the circumstances which appeared against him, logically and rationally, the questioning must be done in such manner and i n such a form which even an ignorant and illiterate person can appreciate and un derstand. Even otherwise, an accused would be somewhat perturbed when he is faci ng a charge and, therefore, fairness demands that each material fact should be put simply and separately. The Apex Court also noted that every error or omissio n to record the statement in that behalf would not necessarily vitiate a trial b ecause errors of these type fall within the domain of curable irregularities. Th e fall out of such omission or errors in each case depends upon the degree of er ror and whether prejudice had been occasioned or is likely to have occasioned. 21. In Kuldip Singh and others(supra), the Apex Court held that the quest ion of establishing prejudice does not arise in view of the fact that the prosec ution seeks to rely upon the incriminating circumstances to indicate the involve ment of the accused. 22. The Apex Court in Basavaraj R Patil and others Vs State of Karnataka, reported in (2000) 8 SCC 740, had discussed the aims and object of section 313 o f the Code as under: ( 10 ) Dealing with the position as the Section remained in the original form u nder the old Code, a three Judge Bench of this Court (Fazal Ali, Mahajan and Bos e, JJ.) interpreted the section in Hate Singh Bhagat Singh v. State of Madhya Bh arat, AIR 1953 SC 468 that \The statements of the accused recorded by committal Magistrate and the Session s Judge are intended in India to take the place of what in England and in Americ a he would be free to state in his own way in the witness box; they have to be r eceived in evidence and treated as evidence and be duly considered at the trial. \ & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. ( 20 ) At the same time it should be borne in mind that the provision is not in tended to nail him to any position, but to comply with the most salutary princip le of natural justice enshrined in the maxim \audi alteram partem\. The word \ma y\ in clause (a) of sub-section (1) in Section 313 of the Code indicates, withou t any doubt, that even if the court does not put any question under that clause 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 handic ap to the accused and he can legitimately claim that no evidence, without afford ing him the opportunity to explain, can be used against him. It is now well sett led that a circumstance about which the accused was not asked to explain cannot be used against him. . 23. In Ajay Singh (Supra), the Supreme Court, in paragraphs 13 and 14 stated thus : 13. The object of examination under this section is to give the accused an op portunity 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 accused 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 the questioning to one or more questions of a general nature relating to the case, b ut it means that the question should relate to the whole case generally and shou ld also be limited to any particular part or parts of it. The question must be f ramed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is nee ded. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the qu estions must be fair and must be couched in a form which an ignorant or illitera te person will be able to appreciate and understand. A conviction based on the a ccused’s failure to explain what he was never asked to explain is bad in law. Th e 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 evidenc e on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 24. In SH Lalsangzuala (supra) and Suraj Gupta (supra), this Court, for the failure of the learned trial Court to put incriminating evidence to the accuse d in his examination under section 313 CrPC, had set aside the conviction and se ntence and had remanded the case to the learned trial Court for fresh considera tion after examining the accused in accordance with law. 25. In view of what has been stated herein above, we are of the opinion that the examination of the accused appellant under section 313 CrPC, in the facts and circumstance of the case, do not satisfy the requirement of the section. Acc ordingly, conviction recorded and sentence awarded are hereby quashed. The matt er is remanded to the learned trial Court with a direction that the learned tri al Court in accordance with the underlying principles of section 313 CrPC, shal l put all the circumstances appearing against the accused appellant to him to en able him to explain the incriminating circumstances and provide him all opportun ity to adduce evidence, if he wishes, in his defence. The learned trial Court i s directed to complete the trial of the case within a period of 2 months from to day. We also quash the statements of the accused appellant recorded earlier unde r section 313 CrPC. The learned trial Court would dispose of the case after he aring the parties. 26. Before parting with the records, we make it clear that we have not made any observation touching upon the merits of the case and the broad feature of th e evidence of the prosecution witnesses, as indicated in the judgment, was, only for the purpose of bringing to the fore the shortcomings of examination of the accused under Section 313 CrPC. 27. In the result, the appeal is partly allowed. 28. The trial Court records be sent down forthwith.