L.S. Jamir, J. -- Heard Mrs. Dinari T. Azyu, learned Amicus Curiae as well as Mr. Lalsawirema, leared Addl. Public Prosecutor, Mizoram. 2. This Jail appeal is directed against the judgment and order dated 12.2.2013 passed by the Addl. District & Session Judge-II, Aizawl whereby the accused Lalnunsanga was convicted under Section 304 IPC and sentenced to undergo Rigorous Imprisonment for a period of 5 years. 3. The prosecution case in brief is that on 6.3.2002 an FIR was lodged before the Officer-in-Charge, Bawngkawn Police Station by the complainant namely, K. Lalruata alleging that his nephew Baby Lalrosanga 18, S/o Keichhuana (KCA) of Chaltlang locality was stabbed with a knife on the side of his left abdomen by Lalnunsanga S/o Vanlaltluanga. His nephew was chased by Lalnunsanga from his residence, who caught up with him in front of their neighbor Mr. K. Rohluna, MST Bus Driver’s house where he was stabbed. Despite proceeding immediately to the Hospital, he succumbed to his injury at around 7.18 pm in Civil Hospital, Aizawl. Accordinlgy, Bawngkawn PS Case No. 100/2002 under Section 302 IPC was registered on 6.3.2002. After completion of investigation, chargesheet was submitted under Section 302 IPC and charge was framed under Section 302 IPC against the accused to which he pleaded not guilty and accordingly trial commenced. During the trial, the prosecution examined 11 (eleven) witnesses. No defence witness was examined and the accused was also examined under Section 313 CrPC. 4. PW1 deposed that on being informed through telephone that his younger brother has been stabbed by the accused, he went to the Hospital. On reaching Hospital, he was informed that the victim had died just a few minutes back. He saw the accused carrying a knife outside the Casualty saying that it is the knife by which he stabbed the victim without any regret. The Civil Hospital Doctor came out and told the accused to put the knife on the table inside the Casualty and that time the Police came and seized the said knife and he put his signature on the body of the seizure memo. In cross examination, he stated that he did not write the complaint on the night of 6.3.2002 but the same was done the next morning at about 7.00 am and that he did not see the incident of stabbing. In cross examination, he stated that he did not write the complaint on the night of 6.3.2002 but the same was done the next morning at about 7.00 am and that he did not see the incident of stabbing. He also denied the suggestion that he did not see the accused handling the knife in front of the Casualty saying that it was the weapon used for stabbing the deceased. 5. PW2 is the neighbor of the victim. In cross examination, he stated that he heard an unusual commotion like that of quarreling and he went out from his house. When he went out, he saw the victim lying on the ground and he saw the accused coming from his house toward the place where the deceased was lying at that time. 6. PW3 in cross examination deposed that he saw the deceased lying on the ground and when he saw blood, he was afraid and he went inside immediately. 7. PW4 deposed that he went to the Hospital where they had taken the victim. When he reached the Hospital, the victim had just passed away and the accused was also at the Hospital wearing Jean Trouser and also had a knife about 11 inches long with him. Some blood stain was in the knife and the Police came to the Hospital and seized the knife. He also heard the accused saying that he had stabbed the deceased with the knife which was seized by the Police. In cross examination, he stated that in the Civil Hospital, he saw the knife alleged to have been used by the accused for stabbing the deceased lying on the table. He did not touch the knife but he simply saw it on the table and he also saw some red stain on the knife which he thought to be blood stain. 8. PW5 is the Doctor who was on duty at the Casualty at Civil Hospital. He deposed that when he examined the victim he found that he was already dead. At about 7.30 pm, one young man and his wife came and told him that his name is Lalnunsanga and put one knife on the table of the Doctor duty. He also said that he used the knife for stabbing the deceased who was lying on the examination table. When he saw the knife, there was blood stain. At about 7.30 pm, one young man and his wife came and told him that his name is Lalnunsanga and put one knife on the table of the Doctor duty. He also said that he used the knife for stabbing the deceased who was lying on the examination table. When he saw the knife, there was blood stain. In cross examination, he denied the suggestion that one young man namely Lalnunsanga did not put a knife on the Doctor table. He also denied that the said Lalnunsanga did not tell him that he stabbed the deceased who was lying on the examination table or that there was no blood stain on the knife. 9. PW6 deposed that on the night of 6.3.2002 between 6 to 7 pm, they stopped the fighting of the accused with the deceased but the accused and the deceased moved out from their hands and ran away from the place where they and the accused ran after the deceased. When they again saw the two persons they found the deceased lying on the ground and when they approached the deceased they found him sustaining life injuries on his left belly and was trying to get up from where he was lying but he could not stand. In cross examination, he deposed that on 6.3.2002, they saw the accused and the deceased fighting against each other but he does not know who had first started the fight. He also stated that as far as his knowledge is concerned, both the deceased and the accused were not having any weapons in their hands. In re-examination by the prosecution, PW6 stated that when they saw the deceased lying on the ground, they saw the accused running way towards their direction. 10. PW8 is the seizure witness to the seized brown belt belonging to Saichuana. 11. PW9 deposed that on 6.3.2002 between 6.30 to 7 pm, he came to learn that the accused had stabbed the deceased. He rushed to the Civil Hospital, Aizawl and on reaching the Hospital, he found the accused carrying Exhibit-M2 (knife) with blood stain. 12. PW10 is the father of the deceased. In cross examination, he stated that he did not see the accused stabbing his son i.e. the deceased. He rushed to the Civil Hospital, Aizawl and on reaching the Hospital, he found the accused carrying Exhibit-M2 (knife) with blood stain. 12. PW10 is the father of the deceased. In cross examination, he stated that he did not see the accused stabbing his son i.e. the deceased. He also stated that his son died because of stabbing by the accused as informed to him by other person and the accused himself at the Hospital told him that he had stabbed his son. 13. PW12 is the Doctor who conducted the post-mortem examination on the body of the deceased. In his opinion, the injury suffered by the deceased was sufficient to cause death in the ordinary cause of nature. The prosecution also examined the I.O. of the case and the confessional statement of the accused was also taken and he was also examined under Section 313 CrPC. 14. Mrs. Dinari T. Azyu, learned Amicus Curiae submits that there are many loopholes in the present case. However, without going into each and every one of those lacuna, she confines her submission on the examination of the accused under Section 313 CrPC. She submits that only two questions were put to the accused under Section 313 CrPC and those had not substantially covered the accusation of the prosecution. The accused was therefore not given the opportunity to state his case in a fair manner thereby the whole proceeding of the trial stands vitiated. The learned Amicus Curiae has also drawn the attention of this Court where there are two recordings under Section 313 CrPC. She has also pointed out that in one recording under Section 313 CrPC, questions have been put but no answer has been recorded therein. She, therefore, submits that the recording of the statement of the accused under Section 313 CrPC has been done in a very perfunctory manner which vitiates the whole proceeding and therefore the conviction and sentence should be set aside and quashed. She also submits that as the matter pertains to the year 2002, that instead of remanding back the matter to the trial Court, the accused may be set at liberty. She also submits that as the matter pertains to the year 2002, that instead of remanding back the matter to the trial Court, the accused may be set at liberty. In support of her contention, she has placed reliance in the case of Rautu Bodra –vs- State of Bihar reported in 1999 SCC (Cri) 1319 wherein the Hon’ble Supreme Court has held that while examining the appellants under Section 313 CrPC, it did not ask them to explain any of the circumstances appearing in the evidence against them. Under the circumstances and having regard to the fact that since the alleged offence was committed, more than 15 years have elapsed and the appellants have already served more than 4 years of imprisonment, therefore the conviction and sentence was set aside. 15. Mrs. Dinari, learned Amicus Curiae has also relied on the decision rendered in the case of State of Punjab –vs- Hari Singh and Others reported in (2009) 4 SCC 200 and in the case of Inspector of Customs, Akhnoor, Jammu and Kashmir –vs- Yashpal and Another reported in (2009) 4 SCC 769 . 16. Mr. Lalsawirema, learned Addl. Public Prosecutor, Mizoram submits that no prejudice has been caused to the accused if there has been any flaws while examining him under Section 313 CrPC. He submits that assuming but not admitting that there are flaws in the proceeding, the same is not fatal and that this Court should also not lose sight of the evidence that are on record. Drawing attention of this Court to the evidence of PW1, PW2, PW3, PW4, PW5 and PW9, he submits that there is enough evidence against the accused that he has stabbed the deceased with the knife on the night of 6.3.2002 as a result of which the deceased had succumbed to his injuries. He also submits that the defence has not been able to demolish the evidence given by the aforesaid prosecution therefore the conviction and sentence passed by the learned trial Court should not be interfered with and the accused should be allowed to complete the full term of his sentence. He also submits that the accused was chargesheet under Section 302 IPC. However, the learned trial Court on humanitarian consideration had convicted and sentenced the accused under Section 304 IPC and that too only for a period of 5 years. He also submits that the accused was chargesheet under Section 302 IPC. However, the learned trial Court on humanitarian consideration had convicted and sentenced the accused under Section 304 IPC and that too only for a period of 5 years. He therefore submits that enough leniency has been shown to the accused and therefore no further interference is required. He also places reliance in the case of State of Punjab –vs Swaran Singh reported in (2005) 6 SCC 101 . 17. I have considered the submission made by the learned Amicus Curiae and the learned Addl. Public Prosecutor, Mizoram. 18. It is already settled that statement under Section 313 CrPC is to serve a dual purpose i.e. to afford to the accused an opportunity to explain his conduct and secondly, to use denials of established facts as incriminating evidence against him. In the case of Asraf Ali -vs- State of Assam reported in (2008) 16 SCC 328 , the Hon’ble Supreme Court has held as under:- ‘21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.” 19. Again in the case of Manu Sao –vs- State of Bihar reported in (2010) 12 SCC 310 , the Hon’ble Supreme Court held as under:- “12. Let us examine the essential features of this Section 313 CrPC and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code. 13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is as to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. “14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.” 20. In the case in hand, on perusal of the LCR, it is seen that there are two sets of the examination of the accused under Section 313 CrPC which reads as under:- “1. It is in evidence that on 06/03/2002 at around 06 to 07 pm, you had a quarrel with one Baby lalrosanga and stabbed him on his side belly with a knife in front of Mr. Rohluna’s house and as a result the victim died at Civil Hospital, Aizawl. It is in evidence that on 06/03/2002 at around 06 to 07 pm, you had a quarrel with one Baby lalrosanga and stabbed him on his side belly with a knife in front of Mr. Rohluna’s house and as a result the victim died at Civil Hospital, Aizawl. What do you have to say? Ans: We are a tenant of Baby Lalrosanga’s family house. I was listening to songs on a tape when the switch was immediately turned off. I inquired as to why that was done and we started quarrelling. Angered, he invited me outside as he waited for us holding a wooden pestle in his hand. My wife went out first and as he pushed her, she fell on the ground. As I went outside, he tried hitting me with the wooden pestle however missed me by a few inch. I then rushed for the kitchen knife by the door. He aimed for my head with his wooden pestle and however fell on me and I believe he fell on the knife that was in my hand. I do not remember stabbing him as I did not do it intentionally. Zorampari, the then wife of mine was a witness to this incident. 2. It is also in evidence that you accompanied the victim to Civil Hospital and there at the Hospital, the knife that you have used for stabbing the deceased victim Baby Lalrosanga was seized from your possession by the Police. Is it a fact” Ans: No.” The other reads as under:- “Q. It is evidence that on 6.3.2002 at around 6.30 pm you chased Baby Lalrosanga, 18 yrs S/o Keichuana of Chaltlang from the house and then stabbed him on his left side belly using knife in front of Pu K. Rohluna, MST Driver’s house and due to which he succumbed to his injuries at the Civil Hospital, Aizawl at about 7.18 pm. As a result of which you are liable to be punished u/s 302 IPC:- What have you to say? Ans: ….. Q. Do you want to examine defence witness for your defence? Ans: ….. .” 21. In the first recording, it is noted that two questions were put to the accused and he had answered both. In the second recording, the first question is identical to the one in the first recording, however, no answer is recorded. Ans: ….. Q. Do you want to examine defence witness for your defence? Ans: ….. .” 21. In the first recording, it is noted that two questions were put to the accused and he had answered both. In the second recording, the first question is identical to the one in the first recording, however, no answer is recorded. Again the second question is different from the one in the first recording and there too no answer has been recorded. In the judgment and order dated 12.2.2013 passed by the learned Addl. District & Session Judge-II, Aizawl District, Aizawl, it is recorded as under:- “After the prosecution evidence is closed, the accused Lalnunsanga is examined u/s 313 CrPC and put the following questions. Q.1. It is evidence that on 6.2.2002 at around 6 to 7 pm, you quarrel with one Baby Lalrosanga and you stabbed him on his side belly with a knife in front of Pu Rohluna’s house and later died at Civil Hospital. What do you have to say? Ans:- I stayed at Baby Lalrosanga’s house as rented residence, I played tape recorder, and Baby Lalrosanga switch off the electric current and asked him why did he do and had arguments. Lalrosanga then called me to go out of the house. My wife Zorampari has gone out first, Lalrosanga has then forced her to fall down on the ground, when I go out, Lalrosanga beat me with big stick, but unluckily failed. Then I took the kitchen knife which is available near the door. I do not know while I stabbed him with knife, probable he himself might have fallen down on the knife. Q.2. It is also evidence that you accompany the victim to Civil Hospital, Aizawl and there at the hospital the knife you have been used for stabbing the deceased victim, Baby Lalrosanga was seized from your possession by the Police. Is it a fact? Ans:- No. Q.3. Do you to have defence witness to defence yourself? Ans:- Yes. But the accused Lalnunsanga was unable to produce his defence witness as his witness was already expired before recording his statement in the Court.” 22. The recording in the judgment dated 12.2.2013 is contrary to the records. Is it a fact? Ans:- No. Q.3. Do you to have defence witness to defence yourself? Ans:- Yes. But the accused Lalnunsanga was unable to produce his defence witness as his witness was already expired before recording his statement in the Court.” 22. The recording in the judgment dated 12.2.2013 is contrary to the records. Another important aspect in this matter is that the third question that is recorded in the judgment states whether the accused has any defence witness to which he had answered ‘yes’. This question is not found in the LCR. 23. From a perusal of the questions put to the accused under Section 313 CrPC, this Court finds that the accused has not been given an opportunity of explaining his conduct appropriately. 24. Considering the contradiction between judgment and the record, this Court is of the considered opinion that the same should not put the accused at the peril of being lodged in the Jail without giving him the appropriate opportunity as provided by law and therefore finds that the whole criminal proceedings stands vitiated. 25. This Court has also considered the submissions made by the learned Addl. Public Prosecutor, Mizoram as well as the citation relied upon by him. On consideration of the citation, this Court is of the opinion that the facts and circumstances of the present case may not attract the case of Swaran Singh (Supra). The occurrence took place on 6.3.2002 and considering the long period of time that has passed and also taking into consideration that the accused has been in Jail for more than 2 (two) years, this Court instead of remanding back the case has no other option but to set aside the conviction and sentence passed by the learned trial Court. 26. Accordingly, the judgment and order dated 12.2.2013 passed by the learned Addl. District & Session Judge-II, Aizawl in Criminal Trial No. 451/2002 convicting the accused under Section 304 IPC and sentencing him to undergo Rigorous Imprisonment (RI) for a period of 5 years is set aside and quashed. The accused namely, Sh. Lalnunsanga is directed to be released forthwith, if not wanted in any other case. 27. Send down the LCR. 28. This appeal is accordingly allowed. 29. No cost.