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2015 DIGILAW 855 (CAL)

Fazlul Haque @ Lalu Sk. v. State of West Bengal

2015-10-06

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2015
Judgment : Debasish Kar Gupta , J. This appeal is preferred by the appellant assailing a judgment and order of conviction dated June 28, 2007 and sentence dated June 29, 2007 passed in Sessions Trial No.32/2005 arising out of Sessions Case No.27/2005 by the learned Additional Sessions Judge, Katwa, convicting the appellant for commission of offence punishable under Section 302 of I.P.C. and sentencing him to suffer imprisonment for life and to pay fine of Rs.5000/-, in default to suffer imprisonment for two years more. The detention of the appellant during the pendency of the case till date of his conviction was directed to be set off under Section 428 of Cr.P.C. On December 20, 2004 at about 06.00 hours, Chowdhury Ekram Ali, the deceased, was returning home from BARA MASJID after offering early morning NAMAJ availing the morum road of village Palishgram, P.S. Mongalkote, District-Burdwan. As soon as he had reached near the house of Sk. Farat Ali after crossing the grocery shop of Mujibar Rahaman (PW 5), the appellant attacked the aforesaid Chowdhury Ekram Ali with a sharp dagger. The appellant assaulted the victim indiscriminately on his chest and back with the above weapon. The victim collapsed on the above morum road after shouting. Co-villager Sk. Ejajul (PW 2) was also coming behind his back at a little distance. He rushed to the spot witnessing the above incident. Many other villagers including (i) Sk. More Selim (PW 6), (ii) Sk. Akali, (iii) Sk. Abdul Azim (PW 7), (iv) Sk. Abdul @ Sajal (PW 12), (v) Sk. Kalo Babu also came to the place of occurrence. They found the appellant there with a blood stained dagger. They chased the appellant near the house of Jamat Ali but the appellant managed to flee away and entered into the house of Sk. Amjed Ali. Ultimately, the aforesaid persons could apprehend the appellant inside the house of Sk. Amjed Ali with the aforesaid blood stained dagger in his hand. The appellant confessed that he had assaulted the deceased with that dagger. The people present there got excited on hearing the confession of the appellant. The appellant was kept confined inside the room of the house of above Sk. Abdul Jabbar for the purpose of saving him from the possible assault of the public. The appellant confessed that he had assaulted the deceased with that dagger. The people present there got excited on hearing the confession of the appellant. The appellant was kept confined inside the room of the house of above Sk. Abdul Jabbar for the purpose of saving him from the possible assault of the public. In the meantime, Mohiruddin Chowdhury (PW 1), the nephew of the deceased, was informed of the above incident by one Kalu Sk. He rushed to the place of occurrence and found that the victim was lying on the morum road after crossing the shop of one Sk. Mujibar Rahaman near the house of Sk. Farat Ali at the western side of the house of Jamat Ali. PW 1 informed the police of the above incident in writing on the same date at 07.15 hours mentioning the name of the appellant therein as assailant. On receipt of the above complaint, Sri Alok Kumar Mitra lodged Mongalkote P.S. U.D. Case no.34/04 dated December 20, 2004 at 07.15 hours. Sri Gobinda Chandra Bag (PW 14), Sub Inspector of Police was posted in Mongalkote Police Station, District - Budwan at the material point of time. He was entrusted with the responsibility of investigating into the matter. He reached the place of occurrence at 07.20 hours on December 20, 2004. On the way from police station to the place of occurrence he informed one photographer to collect photographs as also one draftsman to draw a rough sketch map of the place of occurrence. Photograph of the dead body was taken at the place of occurrence within the period from 07.30 hours to 10.40 hours. Thereafter, the inquest report of dead body of the victim was prepared in Mongalkote Police Station. Thereafter, the above dead body was sent to S.D. Hospital, Katwa at 11.45 hours on the above date for post mortem examination. It will not be out of context to mention that the above inquest report dated December 20, 2004 (Exbt.-1/2) as also the post mortem examination was conducted with reference to the aforesaid Mongalkote P.S. U.D. Case No.34/04 dated December 20, 2004. The post mortem report (Exbt.-9/a) was also prepared on the same date. In course of investigation on that date the PW 14 went to the house of Jabbar Sk. situated at Purba Para of the same village. The post mortem report (Exbt.-9/a) was also prepared on the same date. In course of investigation on that date the PW 14 went to the house of Jabbar Sk. situated at Purba Para of the same village. The appellant was arrested on that date at 13.35 hours from the above house. The weapon of offence was handed over to PW 14 by the appellant. The appellant was arrested and the arrest memo. as also seizure list of the above weapon of offence were prepared at that time. Subsequently, a letter of complaint was submitted by PW 1 in Mongalkote Police Station on the same date at about 14.25 hours. On the basis of the above written complaint a formal FIR no.116/2004 dated December 20, 2004, P.S. Mongalkote, District-Burdwan, was lodged against the appellant for commission of offence under Section 302 of I.P.C. This was also endorsed to PW 14 for investigation who then after conclusion of the investigation submitted charge-sheet no.23/05 dated March 17, 2005 under Section 302 I.P.C. against the appellant. On July 12, 2005, charge was framed against the appellant for committing an offence punishable under Section 302 of I.P.C. As many as fourteen prosecution witnesses were examined in course of trial. On May 19, 2007, the statement of the appellant was recorded under Section 313 of Cr. P.C. After considering the documentary and oral evidences as also statement of the accused recorded under Section 313 of Cr. P.C., amongst others, the impugned judgment and order of conviction and sentence were passed. It is submitted by Ms. Meenal Sinha, learned Amicus Curiae, that the impugned judgment and order of conviction and sentence are not sustainable in law for the following reasons:- (i) On the basis of a written complaint received on the same date at 7.15 pm U.D. Case Mongalkote P.S. U.D. Case No.34/04 dated December 20, 2004 was started at 07.15 hours. The name of the accused was mentioned therein. The post mortem report was also prepared with reference to the above U.D. case. The lodging of second FIR bearing no.116/04 dated December 20, 2004, P.S. Mongalkote, District-Burdwan, was not permissible in accordance with the provision of Section 162 of Cr. P.C. (ii) The charge framed against the accused on July 12, 2005, could not be sustained in law in view of the provision of Section 212 of Cr. The lodging of second FIR bearing no.116/04 dated December 20, 2004, P.S. Mongalkote, District-Burdwan, was not permissible in accordance with the provision of Section 162 of Cr. P.C. (ii) The charge framed against the accused on July 12, 2005, could not be sustained in law in view of the provision of Section 212 of Cr. P.C. The place of occurrence as also time of occurrence of the incident were not mentioned in the charge framed against the appellant. (iii) According to the appellant, PW 2, PW 4, PW 5, PW 6, PW 7 and PW 12, were not eyewitnesses of the commission of offence. The discrepancies in between the evidences of PW 1 to PW 5 and that of PW 6, PW 7 and PW 12 were referred to. The alleged post occurrence witnesses like Sk. Akali and other were not prosecution witness. Farat Ali and Jamat Ali were also not the prosecution witnesses. (iv) In one of the photographs a big sword was appearing beside the dead body. The above photograph was taken within the period 07.30 to 10.40 hours on December 20, 2004 at the place of occurrence. But the time of arrest as mentioned in the arrest memo; the seizure list of weapon of offence; and also the evidences adduced by PW 14, the place of seizure of the weapon of offence was the house of Jabbar Sk. and time of seizure of the same was 13.35 hours and more so it was not a sword but a dagger. According to her submission, neither PW 2 nor PW 5 was eyewitness of commissioning of offence under reference. (v) A carbon copy of the post mortem report was exhibited in connection with the trial under reference. It was not permissible in accordance with the provisions of Section 45 of the Indian Evidence Act, 1872, read with those of Sections 64 and 65 of the above Act. Objection was raised on behalf of the appellant at the time of accepting the above document. (vi) The presence of I.O. to bring the appellant before learned Magistrate concerned for recording his statement under Section 164 of Cr.P.C. on December 21 and 23, 2004, made the above statement invalid. The learned Magistrate did not inform the appellant on December 23, 2004 that he would not be sent back to police custody after recording the confessional statement. (vi) The presence of I.O. to bring the appellant before learned Magistrate concerned for recording his statement under Section 164 of Cr.P.C. on December 21 and 23, 2004, made the above statement invalid. The learned Magistrate did not inform the appellant on December 23, 2004 that he would not be sent back to police custody after recording the confessional statement. No legal aid was provided to the appellant. Though the appellant had confessed his commission of offence at the time of recording his statement under Section 164 of Cr. P.C, he retracted in answering the question no.5 at the time of recording his statement under Section 313 of Cr. P.C. Ms. Sinha relied upon the decisions of Bhagwan Singh vs. State of M.P., reported in AIR 2003 SC 1088 , Hem Raj vs. State of Haryana, reported in, AIR 2005 SC 2110 , Devendra Prasad Tiwari vs. State of U.P., reported in AIR 1978 SC 1544 , Khatri vs. State of Bihar, reported in AIR 1981 SC 928 , Shankaria vs. State of Rajasthan, reported in AIR 1978 SC 1248 in support of her above submission. On the other hand, it is submitted by Mr. Saibal Bapuli, learned advocate appearing on behalf of the State respondents that the PW 2 and PW 5 were eyewitnesses and their evidences were corroborated by those of the PW 6, PW 7 and PW 12. It is also submitted by Mr. Bapuli that it was the discretion of the Investigating Officer (PW 14) how to conduct the investigation, with regard to recording of the statements under Section 161 as also number of prosecution witnesses required for proving the commission of offence by the appellant. The non-recording of statement of a particular person under Section 161 and non-production of that person as prosecution witness could not be a ground of vitiating the trial in the event the commission of offence by an accused is proved beyond any reasonable doubt on the basis of the evidence (both oral and documentary) available on record. According to him, the seizure of weapon of offence was proved from documentary and oral evidence beyond doubt. According to him, the carbon copy of the post mortem report could be taken into consideration in accordance with law. With regard to the confessional statement of the appellant recorded under Section 164 of Cr. According to him, the seizure of weapon of offence was proved from documentary and oral evidence beyond doubt. According to him, the carbon copy of the post mortem report could be taken into consideration in accordance with law. With regard to the confessional statement of the appellant recorded under Section 164 of Cr. P.C., it is submitted by him that the I.O. was not present in the chamber of the learned Magistrate at the time of recording the same. Mere denial of such statement in course of recording his statement under Section 313 of Cr. P.C. could not be treated retraction from the above statement. It is further submitted by him that confession of the accused was corroborated by the evidences of PW 6, PW 7, PW 12 and PW 14 as also the time of arrest mentioned in the arrest memo. According to him Question nos.5, 8 and 9 and replies thereto of the statement recorded under Section 313 of Cr.P.C. supported judicial confession of the appellant recorded under Section 164 of Cr. P.C. Mr. Bapuli relied upon the decisions of Surendra Koli vs. The State of Uttar Pradesh, reported in AIR 2011 SC 970 , Mohd. Azad vs. The State of West Bengal, reported in AIR 2009 SC 1307 , The State of Punjab vs. Harjagdev Singh, reported in AIR 2009 SC 2693 , Sarwan Singh vs. The state of Punjab, reported in AIR 1976 SC 2304 , Sahib Hussain @ Sahib Jan vs. The State of Rajasthan, reported in 2013 CRI. L. J. 2359, The State of Madhya Pradesh vs. Dal Singh & Ors., reported in AIR 2013 SC 2059 , C. Muniappan & Ors. vs. The State of Tamil Nadu, reported in AIR 2010 SC 3718 in support of his above submission. We have heard the learned Counsel appearing for the respective parties at length and have given our anxious consideration to the facts and circumstances of this matter. Our conclusion in this appeal is based on following observations:- The first question which falls for our consideration is the scope of lodging second FIR in connection with commission of same offence punishable under the provision of I.P.C. in respect of which pursuant to the first FIR investigation was underway. Our conclusion in this appeal is based on following observations:- The first question which falls for our consideration is the scope of lodging second FIR in connection with commission of same offence punishable under the provision of I.P.C. in respect of which pursuant to the first FIR investigation was underway. Under the provisions of sub-section (1) of Section 154 of Cr.P.C., the first information report is a report which gives first information with regard to any cognizable offence, an Officer-in-Charge of a police station has to commence investigation under the provisions of Sections 156 or 157 of the Cr.P.C. on the basis of the entry made in the first information report. On the basis of the evidence collected, the investigating officer has to form an opinion under the provisions of Section 169 or 170 of the Cr.P.C. as also to forward his report to the Magistrate concerned under sub-section (2) of Section 173 of the Cr.P.C. There cannot be second FIR in respect of the same offence on the basis of information received by the investigating officer in furtherance of the first FIR where investigation is underway or final report under sub-section (2) of Section 173 of Cr.P.C. has been forwarded to the Magistrate. While deciding a matter involving almost the similar facts and circumstances, it is observed in the matter of Amitbhai Anil Chandra Shah vs. Central Bureau of Investigation, reported in (2013) 6 SCC 348 that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Cr.P.C. only the earliest or the first information in connection with the commission of cognizable offence fulfilled the requirements of Section 154 of Cr.P.C. If he comes into possession of further information or material, he is to forward the same to the Court in connection with the first FIR. The relevant portions of the above decision is quoted below:- 58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.” In the present case a complaint in writing was received by the Officer-in-Charge, Mongalkote Police Station, District-Burdwan, on December 20, 2004 at 06.00 hours from PW 1, the nephew of the deceased. Name of the appellant was mentioned therein as accused. PW 14 was entrusted with the investigation in the matter. Investigation was conducted from 07.20 hours to 13.35 hours. The dead body of the deceased was despatched to S.D. Hospital Katwa at 11.45 hours for post mortem in connection with the above Mongalkote P.S. U.D. Case No.34/04 dated December 22, 2004. Officer-in-Charge Mongalkote P.S., S.I. Aloke Kumar Mitra drawn formal FIR no.116/2004 dated December 20, 2004 at 14.25 hours on the basis of further written complaint submitted by the PW 1mentioning the name of the accused (the appellant) once again and other informations in details therein. Taking into consideration the above facts we find that former document was not treated as FIR and prosecution proceeded further with the investigation on the basis of the latter complaint. It is necessary to point out that the provisions of Section 156 of Cr.P.C. empowers any officer-in-charge of a police station to investigate any cognizable case as prescribed under the above provisions and the provisions adhering to the procedure for investigation provided in Section 157 of Cr.P.C. Once the police authority concerned suspects commission of offence after conducting such enquiry, the above authority is to draw a formal FIR under the provisions of subsection (1) of Section 154 of Cr.P.C. for initiating investigation. The facts and circumstances of the case in hand is different. In this case a written complaint was received by the Officer-in-charge of Mongalkote Police Station, District-Burdwan from PW 1 on December 20, 2004 at 07.15 hours disclosing commission of a cognizable offence by stating the name of the accused therein. The U.D. Case no.34/04 was initiated on the basis of the above written complaint instead of drawing a specific FIR on the basis thereof. The PW 14 was entrusted with the responsibility of investigating into the above matter. After receiving further informations on the basis of such investigation FIR no.116/2004 was drawn on the same date at 14.25 hours once again. This is not permissible in accordance with law as discussed hereinabove. Taking into consideration the interpretation of the aforesaid provisions of law by the Hon’ble Supreme Court in the matter of Amitbhai Anil Chandra Shah (supra). After receiving further informations on the basis of such investigation FIR no.116/2004 was drawn on the same date at 14.25 hours once again. This is not permissible in accordance with law as discussed hereinabove. Taking into consideration the interpretation of the aforesaid provisions of law by the Hon’ble Supreme Court in the matter of Amitbhai Anil Chandra Shah (supra). But in the event of setting aside the latter formal FIR, the scope of granting liberty to the respondents to approach the learned Trial Court to proceed on the basis of the former one bearing Mongalkote P.S. U.D. Case No.34/04 dated December 20, 2004 afresh has to be ascertained taking into consideration the other grounds for challenging the impugned judgment. While dealing with the next grievance of the appellant regarding validity of charge framed against the appellant, the provisions of sub-section (1) of Section 212 of Cr. P.C. contains particulars as to time, place and person should be incorporated in the charge framed in a trial. But, according to the provisions of Section 215 of Cr. P.C., no error in stating either the offence or the particulars required to be stated in charge, and no omission to state the offence or those particulars, should be regarded at any stage of the case as material, unless the accused in fact misled by such error or omission, and it has occasioned a failure of justice. In view of the above provisions of law, we are not inclined to accept the submissions of Ms. Sinha that in absence of mentioning place, time of occurrence in the charge framed against the appellant in fact misled by such error/omission. Having considered the evidence on record we are of the opinion that such error did not occasioned a failure of justice to the appellant. As a result we do not find any error in the finding of the learned trial Court on the above ground. In order to ascertain whether the discrepancies pointed out on behalf of the appellant were of a material dimension, the following discrepancies are taken into consideration:- i) PW 2 did not disclose to the Investigating Officer at any point of time during investigation that he had witnessed the commission of offence by the appellant. According to the prosecution case, PW 2 witnessed the commission of offence by the appellant at the time of going to the paddy field. According to the prosecution case, PW 2 witnessed the commission of offence by the appellant at the time of going to the paddy field. But, according to the deposition of PW 2 in Court he saw the commission of offence at the time of returning from the paddy field. ii) According to examination in chief of the PW 1 in Court, the PW 5 had informed him of witnessing the commission of offence. In cross-examination PW 1 deposed that PW 2 had informed him of the commissioning the offence by the appellant. At the time of giving information to the PW 1 by the PW 2 none else was present. iii) According to the deposition of the PW 5, he had informed the PW 1 of the above incident and none else was present at the time of informing the PW 1. iv) According to the deposition of the Investigating Officer in Court, PW 5 did not inform him about the incident. The above discrepancies were not minor discrepancies. The above contradictions traveled to the root of the nature of offence. Or in other words the above inconsistencies should not have been ignored by the learned trial judge for treating them as eyewitnesses instead of examining creditworthiness or trustworthiness of those witnesses in view of the settled principle of law. Reference may be made to the decision of Leela Ram vs. State of Haryana, reported in (1999) 9 SCC 525 and the relevant portions of the above decision is quoted below:- “9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimensions, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. . . . . . Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. . . . . . (Emphasis supplied) In view of the distinguishable facts of the case in hand the decision of Dal Singh (supra) does not help the prosecution case. With regard to the recovery of weapon of offence, the following discrepancies in this regard are taken into consideration:-a) The photograph of dead body of the victim was taken by the PW 4 on the date of occurrence of the above offence in between 07.30 hours to 10.45 hours. In the above photograph, a big sword was evident. In one piece of photograph the body of the victim placed on a trolly near the place of occurrence of the offence with the above sword beside the body of the victim was evident. b) According to the evidence of the I.O. Sri Gobinda Chandra Bag, (PW 14) as also the seizure list of the weapon of offence (Mat. Exbt.-I) was recovered from the appellant on the above date at 13.35 hours at the time of his arrest from the house of Jabbar Sk. situated at Purba Para of the same village. c) The weapon found in the above photograph and the weapon seized from the appellant as deposed by the I.O. (PW 14) were of two kinds apart from the recovery of the same from two places on the basis of two documentary evidence. Taking into consideration the above contradictions with regard to the recovery of weapon of offence, we find no satisfactory reason in the impugned judgment in support of recovery of the weapon of offence. Therefore, we have no hesitation to hold that the learned trial Court failed to arrive at a conclusion with regard to recovery of the weapon of offence taking into consideration the contradictions in between aforesaid two documentary evidence which traveled to the root of the offence. The decisions of Surendra Koli (supra), Mohd. Azad (supra) and Harjagdev Singh (supra) are not applicable in this appeal taking into consideration the above discussion and observation. The decisions of Surendra Koli (supra), Mohd. Azad (supra) and Harjagdev Singh (supra) are not applicable in this appeal taking into consideration the above discussion and observation. With regard to the question of admissibility of a carbon copy of a post mortem report in a trial, the provisions of Section 45 and 62 (Explanation 2) of the Indian Evidence Act, 1872, are relevant. Those provisions are quoted below:- “45. Opinions of experts. – When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.” “62. Primary evidence – Primary evidence means the document itself produced for the inspection of the Court. Explanation 1. – Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. – Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.” The interpretation of the provisions of Sections 32 and 62 (Explanation 2), has been made by the Apex Court in the decision of Prithi Chand vs. State of Himachal Pradesh, reported in (1989) 1 SCC 432 . The relevant portion of the above decision is quoted below:- “4. The prosecutrix was examined by Dr. C.S. Vedwa, who had issued the medical certificate, Ext. P-E dated 16-6-1979. The medical certificate shows that the prosecutrix had not developed secondary sex characters, auxiliary and public hair were absent and there were abrasions of 3? x 1/8” and 2? x 1/8” on the lumber region. She also found signs of inflammation around the vulva; the vagina was bleeding, the hymen was absent with the edges torn and there was tenderness all around. The hymen was bleeding on touch and the vagina admitted one finger with difficulty. The girl’s salwar was bloodstained. x 1/8” and 2? x 1/8” on the lumber region. She also found signs of inflammation around the vulva; the vagina was bleeding, the hymen was absent with the edges torn and there was tenderness all around. The hymen was bleeding on touch and the vagina admitted one finger with difficulty. The girl’s salwar was bloodstained. It was taken in a sealed packed along with two slides and swabs. Unfortunately, this lady doctor who had delivered a child was not available for giving evidence as she had proceeded on long leave. The learned Sessions Judge felt that it would not be possible to secure her presence without undue delay, and therefore, permitted the prosecution to prove the certificate through PW 2 Dr. Kapila, who was conversant with her handwriting and signature, he having worked with her for about two years. He stated that the carbon copy of the certificate Ext. P-E as prepared by Dr. Vedwa by one process and bear her signature. The learned Counsel for the appellant contended that this certificate was inadmissible in evidence since the prosecution has failed to prove that the original certificate was lost and not available. Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence. Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Therefore the medical certificate Ext. P-E was clearly admissible in evidence. That apart, there is strong, reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant.” (Emphasis supplied) The above principle is applicable in respect of interpretation of the provisions of Section 45 and 62 (Explanation 2) of the Indian Evidence Act. In consideration of the facts and circumstances of the present case, we find that post mortem examination of the dead body under reference was held by PW 13 in course of discharging his official function in the hospital concerned. He had prepared the above post mortem report in carbon process with original contents as a whole with signature and with official seal (Exbt.9/a). He had prepared the above post mortem report in carbon process with original contents as a whole with signature and with official seal (Exbt.9/a). In view of the above, we are not inclined to interfere with the impugned judgment on the above ground. Regarding the presence of Investigating Officer and one constable Neel Kamal Mahato at the time of recording of statement of the appellant under Section 164 of Cr.P.C. cannot be ruled out in view of the fact that on December 21 and 23, 2004, they produced the appellant for recording his statement. Nothing reflects in the statement of the appellant under Section 164 of Cr.P.C. that he was directed to be sent to the correctional home concerned. The above error of the learned trial Court needs our interference with the impugned judgment. With regard to the providing legal assistance we do not find any evidence on record that such a prayer was made by the appellant at any stage. Taking into consideration the facts of the decision of Khatri (supra), we are of the opinion that the same does not help the appellant in respect of above ground. With regard to the validity of the statements of the accused recorded under the provisions of Section 313 of Cr. P.C., the provision is mainly intended to benefit the accused and as its corollary to the benefit of the court in reaching the final conclusion. If the court fails to put the needed question and no evidence, without affording the accused the opportunity to explain, can be used against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him that would no doubt be a serious infirmity. Reference may be mad to the decision of Jai Dev vs. State of Punjab, reported in (1963) 3 SCR 489 and the relevant portion of the above judgment is quoted below:- “21. . . . The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. . . . The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity to explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him that would no doubt be a serious infirmity. . . . .” (Emphasis supplied) In the present case convicting the appellant under Section 302 of I.P.C., no question relating to his motive to kill the victim as deposed by PW 1 was put forward to him. The learned Court below did not take into consideration the retraction of the appellant from the statement made by him under the provisions of Section 164 of Cr.P.C. during recording his statement under Section 313 of Cr.P.C. and the effect of such retraction on the impugned judgment. That apart, the place of the arrest was mentioned in question no.9 at Palishgram Bus Stand. In view of the above, the aforesaid relevant facts and circumstances were not asked to the appellant in course of recording his statement under Section 313 of Cr.P.C. and the same should not have been used against him. In view of the settled principles of law applicable in the case in hand on the basis of the facts and circumstances of the case, the decisions of Sarwan Singh (supra) Sahib Hossain @ Sahib Jan or C. Muniappan (supra) have no manner of application in this case. In view of the settled principles of law applicable in the case in hand on the basis of the facts and circumstances of the case, the decisions of Sarwan Singh (supra) Sahib Hossain @ Sahib Jan or C. Muniappan (supra) have no manner of application in this case. From the discussion and observation made hereinabove, we find that the impugned judgment, order of conviction as also sentence cannot be sustained in law due to the failure of the prosecution to prove the commission of offence by the appellant beyond reasonable doubt. The impugned judgment, order of conviction and sentence are quashed and set aside. This appeal is allowed. The appellant is directed to be set at liberty forthwith, unless required in connection with any other case. Let the Lower Court’s records be sent back expeditiously. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis. I agree.