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2010 DIGILAW 494 (GAU)

Hamil Khasia v. State of Assam

2010-07-22

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. M. Singh, learned Counsel for the Appellant. Also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam for the State Respondent. 2. By the judgment dated 26.11.2002 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 72/2000 the Appellants were convicted and sentenced under Section 324/34, IPC to undergo RI for 3 years and to pay Rs. 2,000 each, in default RI for another period for 4 months and also sentenced to undergo RI for 5 years and to pay fine of Rs. 5,000 each, in default RI for a further period of 6 months under Section 307/34, IPC, both the sentences being directed to run concurrently. This is under challenge in this appeal. 3. The prosecution case, in brief, is that on 19.3.1999, one Sri Subodh Roy S/o late Surendra Chandra Roy under Algapur P.S. lodged an ejahar to the Officer-in-charge of Algapur P.S. alleging that on 19.3.1999 at about 2 p.m., his brother Satyendra Roy alias Kutlai went to his ceiling surplus allotted land at Chandipur grant for cutting bamboos. At that time accused/Appellants Hamil Khasia, Wanchu Khasia and Renu Khasia confined him and began to assault him with fists and blows. Hearing his cry, his brother Monilal Roy came forward to rescue him but Hamil Khasia fired at Monilal from a gun. As a result, Monilal fell down sustaining severe bullet injuries on his person and he was taken to Silchar Medical College and Hospital for treatment. The accused/Appellants also assaulted his cousin Digendra and Bijoy Roy causing injuries on their persons. Accused/Appellant Wanchu was also carrying having a gun and while he aimed at them, he was over-powered by them. On hearing their cries, the nearby people came to the spot and snatched away the gun from the hand of Wanchu which was subsequently handed over to the Police. On receiving the said ejahar, the O/C Algapur Police Station registered a case being Algapur P.S. Case No. 30/99 under Sections 341/323/326/307, IPC and started investigation. The police on completion of the investigation, submitted charge-sheet against all the accused persons under the aforesaid sections of law and the case was committed to the Court of Sessions at Hailakandi for trial. Thereafter, charges were framed against the Appellants under Sections 341/326/307/34, IPC and the charges, being read over and explained, they pleaded not guilty and claimed to stand the trial. Thereafter, charges were framed against the Appellants under Sections 341/326/307/34, IPC and the charges, being read over and explained, they pleaded not guilty and claimed to stand the trial. During trial the prosecution examined as many as 7 witnesses including the medical officer and the I.O. The learned trial court after recording evidence of the prosecution recorded the statement of the Appellants under Section 313, Code of Criminal Procedure who denied all the allegations and declined to adduce any evidence. Then, after hearing the parties and on consideration of the evidence on record, awarded conviction and sentence as mentioned above. 4. From the evidence of the prosecution, particularly, PW1, it is found that there was a dispute between the informant party and Appellants over the possession of land which has been claimed by both the parties as their own. According to PW1, Sri Subodh Roy got the land in question allotted by the government as a ceiling surplus land which the accused Appellants wanted to grab and merge with their adjacent plot of land. 5. I have gone through the questions put by the learned trial court and the replies of the accused Appellants. They have been put only one and same question without bringing to their notice the other facts and circumstances appearing against them and without offering opportunity to explain them. This, in my considered view, has caused prejudice to the Appellants. It has been held in Janak Yadav and Ors. v. State of Bihar (1999) 9 SCC 125 that the opportunity provided to the accused under Section 313 is valuable one inasmuch as it prescribes a procedural safeguard for an accused facing the trial and the same cannot be ignored. The purpose of examining the accused persons under Section 313, Code of Criminal Procedure has been explained in Basavaraj R. Patil and Ors. v. State of Karnataka and Ors. (2000) 8 SCC 740 . Paragraphs 19 and 20 from the said judgment are as worth quoting as appreciating for all: 19. Thus, it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. 20. v. State of Karnataka and Ors. (2000) 8 SCC 740 . Paragraphs 19 and 20 from the said judgment are as worth quoting as appreciating for all: 19. Thus, it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. 20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word 'may' in Clause (a) of Sub-section (1) in Section 313 of the Code indicates, without 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 handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. 6. I may add that examination of accused under Section 313, Code of Criminal Procedure is not a mere formality rather it is within an useful right under the principle of natural justice as because a fact or circumstances found or appearing to be incriminating in the prosecution evidence cannot be used by the court as a foundation for conviction without making a reference to the same and providing opportunity to the accused concerned to explain in his own way. In the present case, the learned trial court brought only a part of the incriminating facts and circumstances to the Appellants and, hence, there is a partial compliance of the mandate under Section 313, Code of Criminal Procedure which is impermissible under the law inasmuch as such partial compliance would cause prejudice to the present accused Appellants. 7. In view of the above, the impugned judgment dated 26.11.2002 convicting and sentencing the accused Appellants is liable to be quashed and it is accordingly quashed. 7. In view of the above, the impugned judgment dated 26.11.2002 convicting and sentencing the accused Appellants is liable to be quashed and it is accordingly quashed. The learned trial court is directed to examine the accused Appellants under Section 313, Code of Criminal Procedure providing them opportunity to explain all the facts and circumstances appearing to be incriminating and after recording their statements proceed with the hearing and deliver judgment in accordance with law. 8. The criminal appeal stands disposed of. 9. Return the LCR forthwith. On receipt of the LCR the learned trial court shall issue notice to the parties fixing a date for appearance and for hearing. The learned trial court shall dispose of the matter within a period of 3 (three) months from the date of receipt of the LCR.