JUDGMENT Kuldip Chand Sood, J. (Oral):. The petitioners in this petition, it appears, were tried by the learned Chief Judicial Magistrate, Sirmaur at Nahan for offences punishable under Sections 406 and 498-a of the India Penal Code. All of them were convicted for an offence punishable under Section 406 read with Section 34 of the Indian Penal Code. However, petitioners No.1 to 3, namely, Vijay Kumar, Subash Chander Sharma and Sushma Sharma were also convicted for an offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. 2. All the petitioners were sentenced to suffer simple imprisonment for two years and to pay a fine of Rs. 1,000/- each and in case of default in the payment of fine they are to undergo simple imprisonment for a period of six months for an offence punishable under Section 406 of the Code. So far petitioners No.1 to 3 are concerned, they were further sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- each and in case of default in the payment offence they are to undergo simple imprisonment for a period of six months for an offence punishable under Section 498-A read with section 34 of the Indian Penal Code. Sentences imposed on accused-petitioners No. 1 to 3 are to run concurrently. 3. Dis-satisfied, petitioners laid an appeal before the learned Sessions Judge, who by his impugned judgment found that certain incriminating circumstances, appearing against the accused, were not put to the accused for their explanation, though those circumstances were relied upon by the learned trial Magistrate. Learned Sessions Judge observed: "But, these facts have not been put to the accused specifically in their statements under S.313 Cr. P.C. nor they were called to give their explanations qua those circumstances. It is time and again held that the circumstances. It is time and again held that the circumstance appearing in incriminating evidence not put to the accused under S.313 Cr. P.C. cannot be relied upon for his conviction. Thus, this shows that these instances shall have to be ignored while scrutinizing the evidence appearing against them." 4. However, instead of proceeding with the case after excluding these incriminating circumstances, learned/sessions Judge relying upon Siddalingappa and others Vs. State by Circle Inspector of Police, 1993 Cr. P.C. cannot be relied upon for his conviction. Thus, this shows that these instances shall have to be ignored while scrutinizing the evidence appearing against them." 4. However, instead of proceeding with the case after excluding these incriminating circumstances, learned/sessions Judge relying upon Siddalingappa and others Vs. State by Circle Inspector of Police, 1993 Cr. L.J. 397 held that such defects and irregularities could be rectified by the trial Court and accordingly remanded the case to the trial Court with the directions to record the statement of the accused under Section 313 of the Cr. P.C. afresh. 5. Dis-satisfied, the petitioners are in this petition. 6. I have heard Mr. Vats, learned counsel for the petitioners and Mr. C.B. Singh, learned Deputy Advocate General, for the respondent-State. 7. The contention of Mr. Vats is two folds. His first contention is that it was not open to the learned Sessions Judge to have remanded back the case to the trial Magistrate for recording the statement of the accused afresh. The only course open with the learned Sessions Judge was to have excluded these circumstances, which were not put to the petitioners for their explanation, from consideration and proceeded to hear the appeal on merits. His second contention is that in any event of the matter the case was initiated again the petitioners in the hear 1995 and it will not be fair, reasonable and in the interest of justice to send back the case after eight years. 8. In Sharad Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 the Supreme Court noticed that certain circumstances were not put to the appellant when his statement under Section 313 of the Code of Criminal Procedure was recorded. It was observed that those circumstances must completely be excluded from consideration because the appellant did not have any chance to explain them. 9. I need not further go into this question as it is now well settled that a circumstance which is not put to the accused while recording his statement under Section 313 of the Code of Criminal Procedure cannot be used against him and must be excluded from consideration. 10. 9. I need not further go into this question as it is now well settled that a circumstance which is not put to the accused while recording his statement under Section 313 of the Code of Criminal Procedure cannot be used against him and must be excluded from consideration. 10. The next question which arises for consideration is whether learned Sessions Judge was justified in remanding the case to the trial court for re-recording of the statement of the accused, particularly after four years when the appeal came to be heard by the leaned Sessions Judge. 11. The petitioners have already suffered agony of trial for about eight years. Such a period is too long and even after its remand to the learned trial Magistrate; it will take another eight years to conclude the case in its finality. 12. In this view of the matter, the petition is accepted. The impugned order of the learned Sessions Judge is set aside. The case now shall be heard in the light of the observations made above, by the learned Sessions Judge at its own merits; he shall dispose of the appeal within a period of four months from today. The accused shall appear before the learned Sessions Judge, Sirmaur at Nahan on 18th August, 2003. -