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2012 DIGILAW 609 (GAU)

Sashanka Hajong v. State of Assam

2012-05-23

A.C.UPADHYAY, I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal has been preferred by accused-appellant, Sashanka Hajong, aggrieved by the judgment and order, dated 19.12.2006, passed by the learned Sessions Judge, Tinsukia, in Session Case No. 109(M)/2005, whereby the learned Sessions Judge has convicted the accused-appellant under Section 302, IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. 2000/- and, in default of payment of fine, suffer rigorous imprisonment for another one year. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 05.03.2005, at about 10 a.m., the accused, after having his meals with the members of his family, was standing outside and smoking; but, suddenly, without any discernible reasons, he went inside his house and hacked his wife, Kun-tola Hajong, to death by means of a dao. On hearing the commotion inside his house, when the sons and daughters of the accused-appellant entered into the house, they found their mother lying dead and the accused told them that he was the one, who had killed their mother. The accused, then, went to the house of Dipu Raj Hajong (PW 2), a co-villager, and told him that he had killed his wife. Advising the accused to wait for some time, PW 2 came to the house of the accused and, on entering into the house, he found wife of the accused lying dead in a pool of blood, whereupon PW 2 went straight to Jagun Police Outpost and lodged there a written information. Based on the said written information and treating the same as First Information Report (FIR), Lekhapani Police Station Case No. 16/2005, under Section 302, IPC, was registered against the accused, Police visited the place of occurrence, held inquest over the dead body, got post mortem examination performed on the said dead body and, on completion of investigation, laid charge-sheet against the accused-appellant under Section 302, IPC. 2. When a charge, under Section 302, IPC, was framed at the trial against the accused, he pleaded not guilty thereto. 3. The prosecution, in order to bring home the charge framed against the accused, examined altogether six witnesses. On closing of the evidence of the prosecution, the accused was examined under Section 313, Cr PC, wherein the accused denied that he had committed the offence, which he was alleged to have committed, his case being that of denial. 3. The prosecution, in order to bring home the charge framed against the accused, examined altogether six witnesses. On closing of the evidence of the prosecution, the accused was examined under Section 313, Cr PC, wherein the accused denied that he had committed the offence, which he was alleged to have committed, his case being that of denial. No evidence was adduced by the defence. 4. However, having found the accused guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 5. We have heard Mr. P. Kataki, learned amicus curiae, and Mr. D. Das, learned Addl. Public Prosecutor, Assam. 6. On perusal of the materials on record including the impugned judgment and order and upon hearing the learned amicus curiae and also the learned Addl. Public Prosecutor, Assam, what attracts our eyes, most prominently, is that the learned Sessions Judge, as already indicated above, examined the accused under Section 313, Cr PC. In this examination, the learned Sessions Judge put to the accused question No. 5, which reads as under: Q. 5. PW 3 Netai Hazong, PW 4 Miss Mamoni and PW 4 Braja Hajong are your son, daughter and son respectively. They have stated in evidence that you killed your wife in front of them and asked them to do whatever they wanted. What do you say? 7. The answer of the accused, to the question so posed, was, "It is false. I am innocent." 8. What, however, we notice from the evidence on record is that none of the sons or daughters of the accused-appellant was an eye witness to the occurrence; rather, their evidence was to the effect that their father, (i.e., the accused-appellant), had made extra-judicial confession before them to the effect that he (accused) had killed his wife. The learned Sessions Judge, however, while examining the accused under Section 313, Cr PC, described PW 3, PW 4 and PW 5 as eye witnesses, which was wholly incorrect, and, at the same time, did not elicit from the accused-appellant his response to the evidence of PW 3, PW 4 and PW 5 that their father had admitted in their presence that he had killed his wife. 9. 9. Without the incriminating evidence, which appeared against the accused-appellant having been put to the accused-appellant, the founding of conviction of the accused-appellant on the basis of the infirm examination, under Section 313(1)(b), Cr PC, as was done by the learned trial Court, defeats the very purpose for which Section 313(1)(b), Cr PC stands incorporated in the statute inasmuch, as Section 313(i)(b), Cr PC imposes a duty on the trial Court to examine an accused on completion of evidence of the prosecution as to what the accused has to say with regard to any incriminating piece of evidence, adduced by the prosecution, which may appear to be incriminating against him. If any incriminating evidence is not put to the accused, the same cannot, ordinarily, be used against the accused, unless it can be shown that the omission to put the incriminating piece of evidence had not caused any prejudice to the accused. 10. In the case at hand, it would be, in our considered view, wholly illegal and unsafe to place reliance on the evidence of PW 3, PW 4 and PW 5 without giving any opportunity to the accused-appellant to have his say with regard to the evidence, which the said witnesses had given. At the same time, if we set aside the conviction without remanding the case to the learned trial Court for undoing the wrong, it would cause serious prejudice to the case of the prosecution and may lead to miscarriage of justice. 11. Situated thus, we are of the view that while conviction of the accused-appellant cannot be sustained, the case needs to be remanded to the learned trial Court for appropriate examination of the accused-appellant under Section 313(b), Cr PC, particularly, with reference to the question No. 5, which was framed and put to the accused-appellant. 12. In the result and for the reasons discussed above, this appeal is partly allowed. The impugned judgment and order, convicting the accused-appellant under Section 302, IPC, shall accordingly stand set aside and the case is remanded to the learned trial Court for appropriate examination of the accused-appellant, under Section 313(b), Cr PC, bearing in mind, however, the observations, which have been made in the preceeding paragraphs of this judgment. 13. The impugned judgment and order, convicting the accused-appellant under Section 302, IPC, shall accordingly stand set aside and the case is remanded to the learned trial Court for appropriate examination of the accused-appellant, under Section 313(b), Cr PC, bearing in mind, however, the observations, which have been made in the preceeding paragraphs of this judgment. 13. Before parting with this appeal, we would like to place on record that we have consciously refrained ourselves from expressing any opinion with regard to the quality of the evidence adduced by the prosecution so that neither the prosecution nor the defence can be adversely affected by our observations. 14. The leaned trial Court is hereby directed to expeditiously deal with the case and dispose of the same, preferably, within a period of one month from the date of receipt of this order. 15. With the direction for remand, as mentioned above, this appeal shall stand disposed of. 16. Let the learned amicus curiae be paid a sum of Rs. 3,500/- for his able assistance. Send back the LCR.