HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.212 of 1999 From the judgment and order dated 23.08.1999 passed by Shri H.B. Das, Sessions Judge, Kandhamal-Boudh at Phulbani in S.T. No. 75 of 1998. Jhuri Goudo & another ………. Appellants Versus. State of Orissa ……….. Respondent For Appellants : Mr. Rashmi Narayan Patnaik For Respondent : Addl. Government Advocate. PRESENT THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.K. PATEL -------------------------------------------------------------------------------------- Date of hearing and judgment : 13.11.2009 PRADIP MOHANTY, J. This appeal is directed against the judgment and order dated 23.08.1999 passed by the learned Sessions Judge, Kandhamal-Boudh at Phulbani in S.T. No. 75 of 1998 convicting the appellants under Section 302 of the Indian Penal Code read with Section 34 of the Code and sentencing them to undergo imprisonment for life. 2. The case of the prosecution is that on 16.03.1998 at about 9.00 P.M. both the appellants by means of Sal and Bamboo lathis brutally assaulted deceased Kalaram Goudo, the brother of appellant no.1 and uncle of appellant no.2, when he was taking food on his verandah. Thereafter, they took him to a nearby jack fruit tree, made him lie on the ground and dealt blows all over his body by lathis, as a result of which he succumbed to the injuries at the spot. The appellants also brought the dead body of the deceased and threw it on the cot lying on his verandah. The Gramrakhi, on being informed, came to the spot and guarded the dead body. Thereafter, son of the deceased went to Baliguda P.S. and lodged FIR. on 17.03.1998 at 9.25 A.M. On receipt of the FIR, a case was registered, investigation commenced and on its completion charge sheet was submitted against both the appellants under section 302/34 I.P.C. 3. The appellants denied the charge and pleaded that the case was falsely foisted against them. 4. In order to prove its case, the prosecution examined as many as seven witnesses. P.W.1, the son of the deceased, is the informant and an ocular witness. P.W.2 is the wife of the deceased and also a witness to the occurrence. P.W. 3 is the younger brother of the deceased. P.W.4 is the constable and a witness to the seizure. P.W.5 is the doctor, who conducted post-mortem examination. P.W.6 is the constable who escorted the dead body for the post-mortem examination. P.W.7 is the investigating officer. The defence examined none. 5. The learned Sessions Judge convicted and sentenced the appellants as mentioned hereinbefore. 6. Mr. Patnaik, learned counsel for the appellants assails the conviction on the ground that there are major contradictions and omissions in the evidence of P.Ws.1 and 2, who are said to be the only ocular witnesses. Both of them are related to the deceased and have tried to develop the prosecution case in court. No independent witness has been examined by the prosecution. That apart, the object of examination of the accused persons under section 313 Cr.P.C. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby they have been deprived of explaining those circumstances. It is the settled principle of law that the questions framed in the statement of the accused must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand, but in the instant case appellants have been asked to answer a single question containing a series of facts. In support of his contention he relies upon the decision in Ajay Singh v. State of Maharashtra, (2007) 37 OCR (SC) 872. 2 7. Mr. Nayak, learned Additional Government Advocate vehemently submits that there are ample materials against the appellants. The evidence of P.Ws.1 and 2 is very clear and cogent and there is no reason to disbelieve the same. P.W.3 corroborates the evidence of P.Ws.1 and 2 with regard to presence of the appellants on the spot soon after the deceased was done to death. He further submits that the provisions of section 313 Cr.P.C have been scrupulously followed by the trial court. Therefore, there is no ground to interfere with the impugned order. 8. Perused the LCR, more particularly the statement of the accused persons recorded under section 313 Cr.P.C. and the decision of the apex Court in Ajay Singh’s case (supra). In the said decision, the Supreme Court has ruled that it is not sufficient compliance to string together a long series of facts and ask the accused what he has got to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questioning must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 9. Keeping the above ratio in view, this Court examined the statement of the accused persons recorded by the trial court under section 313 Cr.P.C. The trial court has put the following questions to each of the accused persons : “(1) It transpires from the evidence of the P.Ws. and the materials on record is that on 16.3.98 during night hours at about 9 P.M. in village Ribingia, you assaulted Kalaram Goudo as a result of which he died. What have you got to say? (2) Do you want to say anything in this case?” From the aforesaid, it is found that no separate question has been put to the accused persons about each material substance which is intended to be used against them. These two accused persons are illiterate. 3 It is difficult to believe that they would have been able to understand the questions put to them. For the above reason, this Court is of the view that the impugned judgment and order of conviction passed by the trial court cannot be sustained. It is a fit case for remand to the trial court, which should record the statement of the accused persons under section 313 Cr.P.C. by putting separate question for each material substance and thereafter dispose of the matter afresh in accordance with law. 10. In the result, the Jail Criminal Appeal is allowed, the impugned judgment of conviction and sentence passed against the appellants is set aside and the matter is remitted back to the trial court for recording of the statement of the accused persons under section 313 Cr.P.C. in the light of the observation made above. This Court directs the trial court to record the accused statement afresh and complete the trial by the end of February, 2010. ………………………. Pradip Mohanty,J. B.K.Patel, J. I agree. ……………………….. B.K.Patel, J. Orissa High Court, Cuttack The 13th November, 2009/Routray 4