Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 562 (GAU)

Babul Phukan v. State of Assam

2010-08-10

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. Thakur, learned Counsel for the Appellant as well as Mr. B.B. Gogoi, learned Additional Public Prosecutor for the State. 2. This appeal is directed against the judgment dated 31.3.2003 passed by the Additional Sessions Judge, Jorhat in Sessions Case No. 7 of 2001, convicting the accused Appellants under Section 323of the IPC and sentencing them to undergo rigorous imprisonment for six months with fine of Rs.1,000 and in default of payment of fine, to undergo another rigorous imprisonment for two months and also convicting them under Section 324 of the IPC and sentencing them to suffer rigorous imprisonment for two years and fine of Rs.3,000 in default of payment of fine to undergo another rigorous imprisonment for four months. 3. The prosecution story is based on a GD entry dated 29.1.1998 of Teok Police Station and a subsequent written FIR lodged by one Smt. Sarumai Borgohain dated 29.1.1998, wherein it was alleged that the Appellants assaulted her sons Rajat Borgohain and Ranjan Borgohain including her husband Khagen Borgohain and in the said assault her son Rajat Borgohain, aged about 15 years died. Her another son Ranjan also received injury. The aforesaid FIR was received and registered as Teok Police Station Case No. 8 of 1998 under Section 147/325, IPC. After completion of the investigation, charge sheet was submitted under Sections 147/448/323/324/302, IPC. Charges were then framed against the accused Appellants under the aforesaid sections of IPC. 4. During the trial, the prosecution examined 9 (nine) witnesses, while the defence examined none. The Appellants pleaded not guilty and took the plea of total denial. After a full dress trial and hearing, learned trial court convicted and sentenced the accused/Appellants as indicated above. 5. Mr. Thakur, learned Counsel for the Appellants has taken me through the evidence and materials on record and submitted that a great prejudice has been caused to the Appellant by way of not putting questions on the evidence tendered by the prosecution witnesses which are incriminating in nature and against the Appellants. Due to such lacunae in the examination of the accused persons in the examination under Section 313, Code of Criminal Procedure, the Appellants have been denied the opportunity of explaining the incriminating and inculpatory materials against them. 6. Due to such lacunae in the examination of the accused persons in the examination under Section 313, Code of Criminal Procedure, the Appellants have been denied the opportunity of explaining the incriminating and inculpatory materials against them. 6. I have gone through the questions put by the learned trial court to the accused persons while examining them under Section 313, Code of Criminal Procedure and found that the learned trial court did not put questions on all the incriminating part of the evidence on record which require explanation from the accused persons. The established law is that a fact or circumstance appearing to be incriminating in the prosecution evidence cannot be used by court for basing conviction without making any reference whatsoever to any statement made by a particular witness. Moreover, it is also the established position of law that recording of statement under Section 313 of the Code of Criminal Procedure is not a mere formality but an important requirement of law inasmuch as it provides an opportunity to the accused persons to explain the incriminating circumstances before their conviction. I deem it proper to refer to and quote from paragraphs 13 and 14 of judgment in Ajay Singh v. State of Maharashtra (2007) 12 SCC 341 : 13. The object of examination under this section is to give the accused an opportunity 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 such 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, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed 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 needed. The question must be framed 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 needed. 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 questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The 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 evidence 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. 7. In my considered view, a great prejudice would be caused to the accused/Appellants if the aforesaid opportunity is not provided to them. Moreover, it is the demand of the fair trial as envisaged in the administration of criminal justice. 8. In view of the above, there is no other option but to interfere with the impugned judgment dated 31.3.2003 passed by the learned trial court and consequently to set aside/quash the same. The impugned judgment dated 31.3.2003 passed by learned trial Court in Sessions case No. 7/2001 accordingly stands quashed. The appeal stands remanded to the learned Sessions Judge, Jorhat with the following directions: (1) the accused persons shall be examined afresh under Section 313, Code of Criminal Procedure in simple questions adhering and befitting with the evidence and circumstances appearing against the accused persons. (2) hear the arguments/submissions of the parties afresh. (3) write and deliver a fresh judgment and dispose of the case as per procedure of law within a period of 4 (four) months from the date of receipt of the lower court record. It has been submitted by Mr. Thakur, learned Counsel for the Appellants that the accused/Appellants have been remaining on bail by virtue of order dated 6.5.2003 passed by this Court in Criminal Misc. Case No. 146 of 2003. It has been submitted by Mr. Thakur, learned Counsel for the Appellants that the accused/Appellants have been remaining on bail by virtue of order dated 6.5.2003 passed by this Court in Criminal Misc. Case No. 146 of 2003. This being so, the accused/Appellants are allowed to remain on bail till disposal of the Sessions Case No. 7 of 2001. Send down the LCR forthwith.