JUDGMENT AND ORDER : Rumi Kumari Phukan, J. A news item titled “Hospital attacks Dona's parents (punish the baby killers)” was published in The Times of India in the issue dated 15.09.2003 in the front page which is extracted as below :- “Guwahati : The Wintorbe Hospital authorities are coming up bizarre explanation to wriggle out the case of concerning death of 3½ years old Shristi Chetri or Dona. The child died at the Wintrobe hospital on August 31. The hospital authorities have gone to the extent of levelling charges of negligence towards the girl child by the parents. The Managing Director of the Hospital Tridib Baruah told TNN on Sunday, Vimal Chetri and his wife (Dona's parents) did not want Dona who had a congenial heart disease to survive because she was a girl. When Dona was brought to the hospital on August 31 around 1 pm she was gasping her breath. She was in last stage. Enquiries reveal that Dona was diagnosed with ventricular Special defect (VSD) when she was just 15 days old. No person with such complication can survive without surgical intervention. Dona's parents had been advised by Doctors, relatives and parents to go for the necessary operation, Baruah said. In mid-August, a Child Specialists treated her with clear mention of serious heart ailment and advised her parents to get cardiological investigation done as soon as possible. Surprisingly Dona' s parents had not done cardiological test not even the ECG. The child was also advised to undergo cardiac surgery by expert from APOLLO Hospital who examined her. Recent X-ray reports reveal serious heart ailment effecting the lungs, he said. On August 30 a day before her death, Dona was in agony and was at high fever. Her parents did not have time to take to hospital despite instructions from Child Specialist Nivedita Goswami. Dona's father replied that he was too busy to take her to hospital. The fact is that when Dona was in deep agony her parents were celebrating their son's birthday till late in the night. It was on the next day, that too at around 1 pm that her parents bought her to hospital. After completing the formalities she was administered injection and oxygen. Child Specialists Ajit Sharma came immediately and treated Dona till 1.55 pm before the child died, Baruah said. It was on the next day, that too at around 1 pm that her parents bought her to hospital. After completing the formalities she was administered injection and oxygen. Child Specialists Ajit Sharma came immediately and treated Dona till 1.55 pm before the child died, Baruah said. The child might have survived had her parents followed the advice given by various Specialists and ensured that she got treatment on time. Dona's parents are now blaming the hospital just to save themselves, he added.” 2. According to the appellant who is a practising advocate, the said allegations made in the news item against them are totally false and baseless and the same is imaginary, concocted and fabricated. Because their daughter has no such congenial heart disease and at no point of time she was ever treated by cardiologist etc. Rather she was a healthy baby and was studying in preparatory class of Spring Birds School. Challenging the publication of above news item at the instance of the respondent which has lowered his reputation, the appellant, as a complainant, lodged a complaint case before the Chief Judicial Magistrate, Kamrup for prosecution of the respondent u/s 500 IPC. 3. On the basis of the complaint cognizance was taken under Section 500 of the IPC and process was issued against the respondent. The case was tried by the learned Spl. Judicial Magistrate, Kamrup, Guwahati. During the trial the complainant examined five witnesses including the complainant himself. Defence pleaded innocence but examined no witness in his defence. The learned trial court on conclusion of the trial found the accused respondent not guilty and acquitted him from the charge under Section 500 of the IPC. 4. Being aggrieved and dissatisfied with the judgment and order of acquittal, the present appeal has been preferred by the appellant mainly on the ground that the evidence on record does not warrant acquittal of the accused. The bare perusal of the Ext.1(1)(News Item) it has been clearly disclosed that on the basis of the statement made by the accused before the P.W.4, said news item was published, so, inference can be drawn that the maker of the imputations that has been levelled against the complainant and his family members is none other than accused person only. The bare perusal of the Ext.1(1)(News Item) it has been clearly disclosed that on the basis of the statement made by the accused before the P.W.4, said news item was published, so, inference can be drawn that the maker of the imputations that has been levelled against the complainant and his family members is none other than accused person only. As per the provision of section 81 of the Evidence Act the court shall presume the genuineness of every documents purporting to be a news paper or journal and therefore Ext.1(1) is a primary document and the same is admissible in law and the contents of the documents are presumed to be true unless contrary is proved, but in the present case no evidence was adduced by the defence side that he did not make such statement before P.W.4. which led to publication of Ext.1(1) and therefore the impugned judgment is perverse and is bad in law and liable to be set aside. 5. It contends that the findings of the learned court below that making of Dr. Tridib Baruah alone as accused skipping the P.W. 4 is absurd and perverse as the evidence discloses that at the instance of Dr. Tridib Baruah the Ext.1(1) News Item was published and as such the impugned judgment is bad in law and as such same is liable to be set aside. 6. I have heard argument of learned counsel for both sides. 7. During the course of hearing learned counsel for the appellant Mr. Sarma has contended that the paper publication hurt the sentiment of the appellant and also lowered his position in the estimation of the society. Though the manuscript was not produced but by examining the P.W. 4 to whom the written news item was submitted by the accused for publication established that the accused was the author of the said defamatory news item. 8. It was also submitted that there is no such rule for preservation of the manuscript and as such non-production of the manuscript is not fatal as the defence has failed to discredit the verbal testimony of the P.W.4 who has deposed that the respondent himself has come to his office and made the statement to him and his statement was also reduced to writing. Further it has been challenged that defence has not adduced any evidence to substantiate that no such defamatory statement was made by the accused to PW 4. The learned court has also not assigned any reason why the P.W. 4 was disbelieved as the said PW 4 himself was a staff of “Times of India” and the maker of the said news item. His evidence is crucial in respect of the fact that the verbal statement made by the accused before this witness, cannot be disputed. So, there is reason to conclude that the publication was made at the instance of the accused. Only because the manuscript was not produced being destroyed by the time the evidence of PW 4 was reproduced the same cannot be a ground to discredit the evidence of PW 4 while his evidence in verbatism remained un-rebutted. 9. Mr. Sarma has drawn the attention of this Court that the learned trial court while in examining of the accused under 313 Cr.P.C. did not put all necessary incriminating materials to the accused respondent to elicit answer from him which has vitiated the trial. Except asking some general questions, the learned trial court has not explained all the evidence on record to the accused so as to elicit the answer from him. 10. In support of his contention Mr. Sarma has referred the following citations- Subhiksha Trading Services Ltd. And Anr v. Azim H.Premji 2011 Cr.L.J 2769, (2008) 14 SCC 491 , Ramesh Krishna Madhusudan Nayar v. State of Maharashtra. 11. In Subhiksha Trading Services Ltd. (Supra) it has been held as below : “Para 32. It is not necessary that publishers should also be made co-accused for prosecuting an author of the statement. If at all a statement was made to any person without any intention and knowledge that it will published and such other person publishes it, then there may be a scope for the author of such statement to make such a defence. But the same can be decided in the trial. But when an interview to the press is given, it shall be obvious that the person giving the interview intends that it should be published or at least it has got the knowledge that it is going to be published. But the same can be decided in the trial. But when an interview to the press is given, it shall be obvious that the person giving the interview intends that it should be published or at least it has got the knowledge that it is going to be published. In that sense making of an interview to the media results in the consequence of publication in the places wherein the newspaper is circulated ...................... The decision of the court below that it does not have the jurisdiction because the publishers was not made a party accused is erroneous and legally unsustainable.” 12. Relying upon the aforesaid judgment and adverting to the case of the complainant/appellant it has been urged before this Court that the learned court below has escaped the notice of the fact that here is not a case of publication of news item by the news reporter from his own source but it was published on the basis of so called interview/reporting by the accused respondent himself by coming into the office of PW 4. While PW 4 has given a direct evidence that the said verbal statement was made to him, then such statement should not be waived out by the trial court simply on the basis of submission of the other side. 13. On the other hand, learned counsel for the Respondent Mr. N. Chakraborty has submitted that as the manuscript was not produced, as such, the so called news item is not admissible in evidence in view of the provision of Section 65/66 of the Evidence Act and the respondent has been rightly acquitted by the court. 14. In support of the contention, the learned counsel has referred the following citations - (1) AIR 1999 SC 3571 (R.K. Sarma v. State of Assam) (2) 1972 AIR SC 1716 (S.L. Goswami v. State of Madhya Pradesh), (3) AIR 1988 SC 1274 (1) (Laxmi Raj Setty and Anr. v. State of T.N.), (4) AIR 1969 SC 1201 (1) (Samant M. Balakrishna v. George Fernandes) and (5) AIR 1994 SC 1733 (Quamarul Islam v. S.K. Kanta and Ors. 15. On the basis of aforesaid judgments it has been contended that statement contained in a newspaper is merely hearsay evidence. Therefore not admissible evidence in absence of production of original manuscript and proved by the person concerned. I have considered the submission and the citations so referred. 15. On the basis of aforesaid judgments it has been contended that statement contained in a newspaper is merely hearsay evidence. Therefore not admissible evidence in absence of production of original manuscript and proved by the person concerned. I have considered the submission and the citations so referred. In Samant M. Balakrishnan (Supra) in para 47 it has been held as below : “A news item without any further proof of what had actually happened through witness is of no value. It is at best a secondary evidence. It is well know that reporters collect information and pass it to the editor who edits news item and publishes it. In this process the truth might get perverted or garbled. Such news item cannot be said to prove themselves although they may have been taken into account with other evidence if the other evidence is well settled.” 16. In the present case the complainant has failed to produce the manuscript but has adduced the evidence of PW 4 who happens to be a witness to the fact situation while the respondent accused directly made a statement to him and in that case he has proved the statement made to him. 17. On careful perusal of the evidence on record it is found that the complainant's side has exhibited the news item as Ext. 1 (1). The trial court disbelieved the evidence of PW 4 but the reason assigned for not believing the P.W. 4 is not proper as because the P.W.4 is not an interested witness nor it is proved that he has any hostility against the accused nor has the occasion for favouritism towards the complainant. 18. Though the P.W.4 failed to produce the original manuscript but his evidence is in verbatim remains un assailed, as he has specifically stated that the accused/respondent made such statement by personally appearing before him. The accused has failed to rebut the said portion of evidence of P.W.4 as well as the complainant. Obviously it is not a case where the news item was published by own source of reporter. 19. On the next, the said P.W. 4 has stated that the said manuscript wherein the statement of the accused was recorded has already been destroyed as per prevailing practise for which it could not be produced. Obviously it is not a case where the news item was published by own source of reporter. 19. On the next, the said P.W. 4 has stated that the said manuscript wherein the statement of the accused was recorded has already been destroyed as per prevailing practise for which it could not be produced. But the accused respondent failed to brought anything on record to prove that such manuscript is required to be preserved for certain period and non preserving of such document is doubtful. 20. It is also noted that the complainant served a legal notice to the accused/respondent but he did not categorically denied about giving such statement to P.W.4. The evidence of PW 4 is worth consideration as the entire case hinges on his evidence as at the relevant time he was a senior correspondent of Times of India. He claims that said verbatism as well as the written statement of the respondent was published without any addition or subtraction. 21. Over and above, the evidence of P.W.4 is very much important who has supported the case of the complainant and the news item so published in his news paper. But it is to be noted that the accused was not at all asked specifically on each and every material aspect while examining under section 313 Cr.P.C. In this respect it is seen that only few questions were put mechanically to the accused on his examination under section 313 Cr.P.C. without putting each and every incriminating materials which are available against him in the record. 22. The trial of criminal proceeding obviously required a critical analysis of evidence on record as well as legal requirement, which has not been adhered to by the trial court at all. The recording of statement under section 313 Cr.P.C. also not a mere formality. The Court has to appreciate each and every answer given by the accused as well as the evidence on record so as to arrive at the just conclusion. 23. In the case of Naval Kishore Singh v. State of Bihar reported in AIR 2004 SC 4421 Hon'ble Supreme Court has observed as follows. “We deprecate the practise of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. “We deprecate the practise of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality …” 24. In another case Mutum Seityaban Singh v. State of Manipur reported in 2006 (3) GLT 673 Hon'ble Gauhati High Court observed that: “….. it is well settled that the proper way of questioning the accused is to put before him one by one all the vital and salient point in the evidence that go against him in short sentences, in easily understandable language and to ask if he has anything to say in regard to them by way of innocent explanation……” 25. Again, in the case of K. Hrangliana v. State of Mizoram reported in (2010) 2 GLR 549 Hon'ble Gauhati High Court has observed that the main purpose of examination of accused under Section 313 Cr.P.C. is to enable the accused to personally explain any incriminating circumstances appearing in the evidence against him. Duty cast on the court to put all such questions to the accused properly and clearly in simple language to meet each material point sought to be made against him by affording and adequate opportunity to explain. 26. In the case of Nar Singh v. State of Haryana reported in (2015)1 SCC 496 the Hon'ble Supreme Court in para 34 of the judgment has observed that the accused is not entitled to acquittal on the ground of non compliance with the mandatory provision of Section 313 Cr.P.C. In the same para it is also observed that the trial court should have been more careful in framing the questions and in ensuring that all material evidence and incriminating circumstances were put to the accused. However, omission on the part of the court to put questions under Section 313 Cr.P.C. can not ensure to the benefit of the accused. 27. However, omission on the part of the court to put questions under Section 313 Cr.P.C. can not ensure to the benefit of the accused. 27. In the instant case, the LCR reveals that the learned trial court did not put all the incriminating materials to the accused which appeared on the evidence on record and has very casually recorded the same without any specific reference to any of the witnesses. 28. It appears that the trial court has proceeded on one sided notion, only to discredit the evidence of P.W.4 but has not discussed at all about the credibility of other evidence on record. All the matters that have been discussed above has not been considered by the trial court. 29. The Hon'ble Supreme Court in Crl. Appeal No. 512/2014 Bassapa v. State of Karnataka has laid down certain principles to be kept in mind by the appellate court while dealing with appeals against an order of acquittal. (i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and come to its own conclusion. (ii) The appellate court can also review the trial court conclusion in respect of both facts and law. (iii) While dealing with appeal preferred by the State, it is the duty of the appellate court to marshall the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal (iv) An order of acquittal is to be interfered with only when there are compelling and circumstantial reasons for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. (v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents, the appellate court is competent to reverse the decision of the trial court depending on the materials placed. 30. The exercise of power under Section 378 of the Code of Criminal Procedure, the court is to prevent the failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is found guilty, but there is failure of justice if the guilty is allowed scot free. 31. 30. The exercise of power under Section 378 of the Code of Criminal Procedure, the court is to prevent the failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is found guilty, but there is failure of justice if the guilty is allowed scot free. 31. In the given case, the judgment of the trial court acquitting the accused is based on non-appreciation of evidence on record and it is perverse and the view taken by the trial court is not a plausible view of the entire matters on record. 32. I left with no option but to remand the case to the court below to decide the case afresh on proper appreciation of evidence on record and also for proper recording of statement of the accused under section 313 Cr.P.C. 33. In the result, the appeal is allowed and the impugned judgment and order so passed in CR Case No. 809C/2004 under Section 500 IPC is hereby set aside. 34. With the above observations the appeal stands disposed of. 35. The parties are directed to appear before the trial Court on or before 14.07.2016. As the case is old pending one, the learned court below is directed to dispose of the case within two months from the date of receipt of the case record, obviously after hearing the learned counsel for both parties. 36. Bottom Send down the LCR along with a copy of this judgment to the court below.