Against the judgment and order of conviction and sentence dated 26th November, 2002 passed by Sri Bharat Prasad Yadav, 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No. 136 of 2000/35 of 2000. CRIMINAL APPEAL No. (D.B.) 764 OF 2002 1.RATAN SAO, S/o Late Kachhu Sao 2. Kamla Devi, wife of Sri Munna Sao, 3. Munna Sao and 4. Tunna Sao, Both sons of Sri Ratan Sao, all residents of village- Dumara, P.S. Kutumba (Amba), Distt. Aurangabad………………………………Appellants. Versus STATE OF BIHAR---------------------------------------(Respondents) For the appellants: Mr. Krishna Prasad Singh, Sr. Advocate With 1. Mr. Bhaskar Shankar 2. Mr. Manish Kumar 3. Mr. Rakesh Singh For the state of Bihar: Mr. Lala Kailash Bihari, Sr. Advocate, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM J U D G M E N T Mrs. Mridula Mishra &. S.M.M.Alam, J.J , Four appellants , namely, Ratan Sao, Kamla Devi, Munna Sah and Tunna Sah have preferred this appeal against the judgment and order of conviction, passed by the IInd Additional Sessions Judge, Aurangabad in S.Tr. No. 136 of 2000/35 of 2000. Appellants have been convicted u/S 304- B/34 of the Indian Penal Code and sentenced to Rigorous imprisonment for life by judgment and order dated 26.11.2002. 2 2. Appellant No. 1 is the father-in-law, appellant No. 2 sister-in-law, appellant No. 3 elder brother of the husband, i.e. brother in law and appellant No. 4 Tunna Sah is husband of the deceased, Lalsa Devi. Chandeshwar Sah (P.W.11) is father of the deceased and informant of Kutumba (Amba) P.S. Case No. 131/99. 3. The informant in his fardbeyan recorded on 22.12.99 at about 9.00 a.m. at village, Dumra has revealed that on 22.12.99 at 5.00 a.m. , his son-in-law , Tunna Sah knocked at his door and inquired whether Lalsa Devi had come there ? The informant answered in negative but became suspicious why his son-in-law has come to inquire about his daughter who had gone to her husband’s place just one month earlier. Chandeshwar Sah alongwith his villagers, Ram Naresh Ram, Ram Naresh Sah and Lakhan Sah went to village, Dumra where his daughter was married. He reached the house of Ratan Sah , father-in-law of his daughter and found dead body of his daughter lying on a cot wrapped in a white bed sheet. At that very time, the police also arrived there and recorded fardbeyan of Chandeshwar Sah. In his fardbeyan, the informant stated that his daughter, Lalsa was married with Tunna Sah four years ago. After three years of marriage, her Gauna was performed. When she returned back after her Gauna, she complained of ill-treatment meted to her by the husband and other family members for non-fulfillment of demand of a motor cycle. One month prior to the occurrence, Munna Sah , younger brother of his son-in-law had come and asked for Bidaai of Lalsa Devi. He also assured that Lalsa will not be tortured and no unpleasant incident will take place. On such assurance, Lalsa Devi went to her 3 Sasural one month prior to the occurrence and she was killed by accused persons. 4. The case was investigated, charge sheet submitted and finally, committed to the Court of Session for trial. During trial, altogether 15 witnesses were examined. Out of them, P.Ws. 1, 3, 4, 5, 8 and 9 were declared hostile. The I.O. was examined as P.W. 14 and the doctor who conducted post-mortem, was examined as P.W. 13. 5. When the prosecution evidence is concluded, it is required that statement of accused be recorded u/S 313 of the Cr.P.C. The statement of accused is recorded u/S 313 of the Cr.P.C. in order to give opportunity to accused persons for explaining any incriminating circumstances appearing in evidence against him/her. Under section 313 of the Cr. P.C., to put the circumstances before the accused persons is mandatory for the trial court but it is not mandatory for the accused that he must explain the accusation; he may deny, may not answer or can say that he will give everything in writing. But so for putting questions relating to circumstances appearing in the deposition of the prosecution witnesses before the accused for giving an opportunity to explain the circumstances, it is mandatory for the trial court. 6. What we find that in the present case, no such opportunity has been provided to the accused persons by the trial court. On record, simply a format of the questions is there. Denial, acceptance or even statement of the accused that they do not want to answer the questions, is not mentioned. However, signature of the accused persons has been taken on the format. In fact, the mandatory provision u/S 313 of the Cr.P.C. has not been complied with and due to this, accused persons missed to avail the opportunity 4 provided to them under section 313 of Cr.P.C. On account of this lacuna, the entire proceeding of the trial from the stage of recording the statement u/S 313 of the Cr.P.C. is illegal and cannot be deemed to be in accordance with law. The conviction of the accused persons itself, is liable to be set aside on account of this lacuna. 7. Recently we have come across with a similar situation while hearing Cr. Appeal No. 660/02 and analogous appeals. In those cases also, the accused persons were not provided with the opportunity to explain the circumstances appearing in the deposition of the prosecution witnesses. Their statement was not recorded u/S 313 of the Cr. P.C.. Simply their signature was taken. Accused persons were convicted u/S 396 of the Indian Penal Code. Two Criminal Appeals i.e. 144/94 & 169/94 were preferred before the High Court against the judgment and order of conviction. The High Court set aside the judgment of conviction on the ground that judgment and order was passed without recording statement of accused u/S 313 of the Cr.P.C. and the case was remitted to the trial court for retrial of the case. Against this judgment, the accused persons preferred S.L.P. Nos. 494 & 495 before the Supreme Court. Both the S.L.Ps. were registered as Appeal Nos.1812 & 1813 of 1996. The Apex Court set aside the order of the High Court, so far the retrial is concerned. Retrial was confined to the stage of recording of statements of the appellant whose statements have not been recorded u/S 313 of the Cr.P.C. It was directed by the Apex Court that after recording statement and defense evidence, the trial court will pass orders afresh in accordance with law on the basis of prosecution witnesses already on record and the defense 5 evidence which the appellants may lead after their examination u/S 313 of the Cr.P.C. 8. We find that present case is similar to the case mentioned above, as such, the present case should also be given similar treatment. Accordingly, the judgment and order of conviction passed by the trial court is set aside. The matter is remanded to the trial court for re-trial from the stage of recording statement of the accused persons u/S 313 of the Cr.P.C. The trial court will pass judgment and order of conviction and sentence afresh in accordance with law on the basis of prosecution evidence already on record and the defense evidence, the appellants may lead after their examination u/S 313 of the Cr.P.C. 9. Counsel for the appellants submits that prior to their conviction, the appellants were on bail. Since the judgment of conviction and order of sentence is set aside, the appellants are entitled to remain on bail. Accordingly, the trial court may ask the accused persons to furnish fresh bail bonds of its own satisfaction. 10. This appeal is remitted back. (Mridula Mishra ,J.) (Syed Md. Mahfooz Alam, J.) Patna, the 2nd day of December, 2008 NAFR/AKV .