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2017 DIGILAW 669 (GUJ)

Dashubhai Surjibhai Minama v. State of Gujarat

2017-03-24

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Biren Vaishnav, J. 1. The appellant, by this appeal, has challenged the judgment and order dated 28.03.2011 passed by the learned Additional Sessions Judge, Dahod. By the aforesaid judgment, the learned Additional Sessions Judge convicted the accused for the offences punishable under sections 302 and 307 of the Indian Penal Code and sentenced him to life imprisonment under section 302 of the Indian Penal Code. Punishment of rigorous imprisonment for five years was imposed under section 307 of the Indian Penal Code. 2. The charge is at Ex.2. According to the charge so framed, it is the case of the prosecution that the accused suspected that his wife Kantaben was a witch and was responsible for the death of his brother Bachubhai. On 01.11.2008, in the evening at 06.30 with this motive, the accused with an axe in his hand attacked his wife Kantaben and caused injuries on her head and thigh. Kantaben fell unconscious. The accused did not stop there and went to the house of the complainant Mukeshbhai and called Mukeshbhai's mother Chundadiben. He held her also responsible for his brother's death. With the axe in his hand, the accused hit Chundadiben on her head. When the complainant Mukeshbhai tried to intervene, the accused ran after him. Chundadiben thereafter ran into the house and bolted the door from inside. However, the accused broke open the door with axe and inflicted repeated blows on Chundadiben and caused her death. He was, therefore, charged for offences under sections 302 and 307 of the Indian Penal Code. 3. Mukesh Minama, the son of Chundadiben who was the complainant is examined as PW-7 at Ex.22. In his complaint filed on 02.11.2008 which is at Ex.23, the complainant stated that on 01.11.2008, at 06.30 in the evening, when he along with his wife and his mother was sitting in the house, Dashubhai - the accused who was staying next door had hit his wife Kantaben with an axe. The accused Dashubhai thereafter came running towards the complainant's house and when his mother was standing outside the house the accused called her over and told her that she was also responsible for his brother's death. With an axe in his hand, he hit Chundadiben on her head. When the complainant tried to intervene, he was also attacked. With a view to escape from the attack, he hid close by. With an axe in his hand, he hit Chundadiben on her head. When the complainant tried to intervene, he was also attacked. With a view to escape from the attack, he hid close by. His mother Chundadiben ran into the house and closed the door from inside. The accused broke open the door with an axe, entered the house and hit Chundadiben repeatedly with the axe as a result of which his mother died. 3.1 This witness in his testimony which is at Ex.22 supported the narrative in the complaint and testified to the sequence of events in the same manner in which the complaint was lodged. He stated that at around 06.30 in the evening when he was sitting with his wife and mother in the house, the accused came with an axe, attacked his mother Chundadiben and when he tried to intervene he also was sought to be attacked. He escaped and hid behind a tree. The accused followed Chundadiben into the house, broke open the door, entered the house and repeatedly inflicted blows with the axe as a result of which Chundadiben died. This witness further stated that he subsequently spoke about the incident to Sukhrambhai, Vashna Fulji and Sureshbhai Sukhrambhai. Kantaben, the wife of the accused was thereafter carried in an autorickshaw to the hospital. He confirmed to have lodged the complaint at Ex.23. He also identified the muddamal axe and the clothes of the deceased. The accused present in the court was also identified by him. 3.2 In the cross examination, this witness has stated that he was illiterate and he denied the suggestion that the complaint was lodged by Sukhram. He further stated that ten minutes after the incident, he went and saw that the doors were broken and his mother was lying in a pool of blood, that he had hid behind a tree. The defence has tried to put a suggestion that when the incident had occurred at six in the evening, it was winter and therefore the incident could not have been easily witnessed. He denied the suggestion that the accused was insane. 4. The complainant's wife Rakmaben Minama has been examined as PW-11 at Ex.29. The defence has tried to put a suggestion that when the incident had occurred at six in the evening, it was winter and therefore the incident could not have been easily witnessed. He denied the suggestion that the accused was insane. 4. The complainant's wife Rakmaben Minama has been examined as PW-11 at Ex.29. She in her examination-in-chief has stated that when she along with her husband Mukeshbhai and mother-in-law Chundadiben was at home in the evening, the accused Dashubhai came home with an axe, called over her mother-in-law and then hit her on her head. When both she and her husband Mukeshbhai tried to intervene, he ran after both. She and Mukeshbhai thereafter hid behind a tree. Chundadiben, her mother-in-law entered the house at which point of time the accused broke open the door of the house, entered the house and hit her mother-in-law with the axe on the neck and the head and on the chest. She identified the muddamal axe and also the accused who was present in the court. 4.1 In her cross examination, she denied the suggestion that she had gone out for doing labour work at Handi. She agreed to a suggestion that was put to her that her mother-in-law was alone and inside the house. She denied the suggestion that she was not present when the mother-in-law was hit on the neck and when the first incident happened she was only at a distance of about a foot. A suggestion was put to her that the husband had gone alone to lodge the complaint and he was accompanied by nobody else which she agreed. She has been tried to be contradicted on the police statement made by her. 5. PW-8 - Kantaben, the wife of the accused has been examined at Ex.24. She has however turned hostile. During the examination-in-chief, she has stated that Chundadiben was attacked with an axe. 6. Sukhram, PW-9, Ex.25, who was according to the version and the testimony of the complainant, called at the scene of the incident turned hostile. However, in his examination-in-chief he has stated that Mukeshbhai had shouted and called him over where he saw Kantaben lying unconscious. 7. Dr. Ashokbhai Devidas Bachani, PW-6 at Ex.17 is the doctor who had examined Kantaben. Sukhram, PW-9, Ex.25, who was according to the version and the testimony of the complainant, called at the scene of the incident turned hostile. However, in his examination-in-chief he has stated that Mukeshbhai had shouted and called him over where he saw Kantaben lying unconscious. 7. Dr. Ashokbhai Devidas Bachani, PW-6 at Ex.17 is the doctor who had examined Kantaben. A certificate has been produced and according to the testimony of this doctor, the history that the patient gave was that she had sustained injuries on having been assaulted by axe. In the opinion of this doctor, the injuries that Kantaben sustained would have been caused by a hard and blunt substance and such injuries could have also been possible as a result of the axe. 8. Dr. Munira Kharodawala is examined as PW-5 at Ex.14. She is the Medical Officer who had carried out the postmortem on the deceased Chundadiben. The external injuries that the deceased had sustained on her body are as under: "(1) Head - Bone deep IW Injuries (Fracture) 3 x 1x 2 inch on frontal side of head (2) Lateral side of neck IW 5 x 4 x into bone deep all muscles are cut (3) Incised wound 4 x 1 x 1 inch above left nipple (4) Incised wound 7 x 4 x bone deep below left nipple (5) Incised wound 7 x 3 x bone deep left lateral side of chest (6) Incised wound 3 x 1 x bone deep muscles cut in left arm (7) Incised wound 4 x 3 x bone deep in left Forearm (8) Incised wound 5 x 2 x bone deep in left Forearm (9) Incised wound 3 x 2 x bone deep in left hand dorsal of palm." 8.1 In the opinion of the doctor, the death occurred due to the multiple injuries that Chundadiben sustained. Such injuries could have been caused as a result of the axe. The cause of death according to the doctor was shock due to trauma. 9. PWs. 2 and 3 are the panchas of Ex.10 discovery panchnama. They however have turned hostile. They have admitted that they have signed the panchnama. The evidence of the Investigating Officer who is examined as PW-15 at Ex.35 has also confirmed in his testimony of drawing of such panchnama. 9. PWs. 2 and 3 are the panchas of Ex.10 discovery panchnama. They however have turned hostile. They have admitted that they have signed the panchnama. The evidence of the Investigating Officer who is examined as PW-15 at Ex.35 has also confirmed in his testimony of drawing of such panchnama. The accused Dashubhai led the police party in a jeep on the railway bridge to Godi road, then from the main road, he directed the jeep towards a dirty track and then the jeep proceeded further on to the dirty track. He stopped the jeep and from a well behind an unoccupied house he brought out the axe from a heap of grass lying and took the axe out from the heap. The clothes of injured Kantaben were also recovered through the panchnama at Ex.11. No marks were found on such clothes which were possible due to the attack by an axe. Corroborative evidence in terms of the FSL as well as Serological reports have been produced at Ex.40. The clothes of the deceased showed blood group B and the clothes of the injured Kantaben showed blood group A. The weapon axe used in the incident showed the presence of blood groups A and B and so also the t-shirt of the accused showed the presence of such blood groups. This therefore is the nature of evidence on record. 10. Essentially, the case of the prosecution rests on the testimonies of two eye witnesses namely PW-7 Mukeshbhai and PW-11 Mukeshbhai's wife Rakmaben. The complainant Mukeshbhai in his testimony as is evident testifies that when accused Dashubhai called over his mother, he was sitting by her side with his wife Rakmaben. At that point of time, the accused advanced towards his mother and gave the first blow. When he tried to intervene and stop the accused, Dashubhai followed him and his wife. They therefore tried to hide behind a tree. According to his version, his mother Chundadiben ran inside the house and bolted the doors from inside. The accused followed his mother, broke open the doors and repeatedly attacked his mother. Mukeshbhai's wife Rakmaben also confirms this version through her testimony at Ex.29. According to her, when she was sitting with her mother-in-law and her husband, Dashuji came there and attacked Chundadiben with an axe. When both of them tried to intervene, Dashuji followed them and they tried to hide. Mukeshbhai's wife Rakmaben also confirms this version through her testimony at Ex.29. According to her, when she was sitting with her mother-in-law and her husband, Dashuji came there and attacked Chundadiben with an axe. When both of them tried to intervene, Dashuji followed them and they tried to hide. She in her cross examination has admitted that when the first part of the incident happened she was only a foot away from her mother-in-law. 11. The defence has tried to come out with a case that both PWs. 8 and 11 cannot be termed to be eye witnesses to the incident in view of the fact that on reading of the testimonies of both these witnesses in its entirety what comes out is that the actual attack at the hands of the accused inside the house may not be witnessed by the son and the daughter in law. When the version of these two witnesses is seen in light of what they have stated, it becomes apparent that though the incident would have happened in two parts, the attacks on Chundadiben were in quick succession. First Dashuji went there when she was in the company of both PW-8 and PW-11 and Rakmaben was standing away from her. The accused hit the deceased with an axe and then in quick succession when Chundadiben ran inside the house, he followed her, broke open the doors and carried out the subsequent part in the same sequence. Both Mukesh and Rakma in their testimonies bring out the fact that the doors of the house were broken open with axe and the mother was lying in a pool of blood. Evidently, therefore though the second part of the incident may not have really happened in their presence, the sequence followed by first part immediately after the attack at the first instance would not in any manner doubt the credibility of their being eye witnesses to the incident. The complainant confirms the contents of the complaint and the sequence of things so narrated in the complaint find support from his version that he has given in his evidence. Thus, there is no reason to suspect that they are not the eye witnesses to the incident. 12. The doctor who carried out the postmortem has in his evidence stated that the injuries that the deceased sustained was as a result of the axe wielded by the accused. Thus, there is no reason to suspect that they are not the eye witnesses to the incident. 12. The doctor who carried out the postmortem has in his evidence stated that the injuries that the deceased sustained was as a result of the axe wielded by the accused. As a result of the injuries so sustained, the axe was discovered under Ex.10 panchnama from behind a well under a heap of grass from an isolated spot. The FSL and the Serological report confirm the presence of blood group A and B i.e. of the deceased and injured on the axe and on the clothes of the accused. 13. Learned Advocate Mr. Yogendra Thakore has contended that there has been a violation of the provisions of Section 313 of the Code of Criminal Procedure. It is his contention that it is mandatory, in accordance with the provisions of Section 313 of the Code that the attention of the accused has to be drawn to every inculpatory material which the prosecution seeks to rely upon to bring home the charge. Omission to bring such material to the accused would vitiate the trial and the accused should therefore be acquitted, giving him the benefit of doubt or the case be sent for retrial so as to cure the defect caused due to such omission. 13.1 Mr. Thakore has relied on the judgment in the case of Nar Singh vs. State of Haryana, AIR 2015 SC 310 in support of his contention that non-questioning of the accused on the FSL and the Serological Report under Section 313 of the Code and the omission to bring this scientific evidence to the accused which was an incriminating material has led to violation of the mandatory provision and therefore the conviction has been rendered bad. Relying on the facts of the case in Nar Singh (supra) where the Supreme Court ordered remitting of the case to the trial court for proceeding afresh from the stage of Section 313 of the Criminal Procedure Code, Mr. Thakore contended that in the event the Court is not inclined to set aside the conviction on merits it should remit the proceeding for retrial. 13.2 The contention of Mr. Thakore contended that in the event the Court is not inclined to set aside the conviction on merits it should remit the proceeding for retrial. 13.2 The contention of Mr. Thakore that whenever there is a breach and/or violation of Section 313 of the Criminal Procedure Code in as much as inculpatory material is not put to the notice of the accused the trial vitiates needs to be examined. Section 313 of the Criminal Procedure Code is enacted with a view to bring the substance of the accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The purpose of the section is to safeguard so as to give him an opportunity to explain the circumstances appearing against him in the evidence. The Court, in accordance with this provision must bring to the attention of the accused inculpatory pieces of evidences to give him an opportunity to offer an explanation. 13.3 This question has come up for consideration on several occasions. In the case of Shivaji Sahebrao Bobade and Another vs. State of Maharashtra, AIR 1973 SC 2622 , in para 16 of the said judgment, the Supreme Court has observed as under: "It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of Justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C. the omission has not been shown to have caused prejudice to the accused." 13.4 In the case of Paramjeet Singh @ Pamma vs. State of Uttarakhand, AIR 2000 SC 200, the Supreme Court held that though the provisions of Section 313 of the Cr.PC make it obligatory for the court to question the accused, mere omission to do so is not enough. The accused will have to show how has he been materially prejudiced. In Para 31 of the aforesaid judgment, the Supreme Court has observed as under: "31. Thus, it is evident from the above that the provisions of Section 313 Cr. P.C make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court." 13.5 So also in the case of Santosh Kumar Singh vs. State through CBI, the Supreme in Court observed as under: "32. We now come to the argument with regard to the omission in putting certain questions to the appellant. It does appear from the circumstance that it was the appellant who had strangulated the deceased and that too with the convector wire had not been put to the appellant but it is clear from question No. 86 that the fact that death had been caused by asphyxiation as a result of strangulation by ligature and that the ligature material was one with a soft surface, had been put to him. We also see that when the injuries at serial Nos. 1 to 11 in the post-mortem report Ex. PW-33/B had been put to the appellant, he had merely made a statement that he did not know anything. We further notice from the evidence of PW-33 Dr. A.K. Sharma that the cause of death was strangulation and that the nature of injury Nos. 4 and 5, which referred to the ligature marks on the neck, had been pointedly asked of the Doctor in cross-examination. Likewise, the fact that the helmet had been used as weapon of offence, had not been specifically put to the appellant but here again we find absolutely no prejudice to the appellant on this score as the death had been caused not by the use of the helmet but by strangulation and that the appellant and his counsel were fully alive to the prosecution story that the helmet had been used as a weapon to beat the deceased into submission. Ishwar Singh's Case AIR 1976 SC 2423 (supra) cited by Mr. Ishwar Singh's Case AIR 1976 SC 2423 (supra) cited by Mr. Sushil Kumar was not dealing with a statement under Section 313 of the Cr.P.C. The facts show that the ballam or bhala which were alleged to be the murder weapons had not been shown to the doctor and this Court held that in this situation, it was not possible to convict the accused (who had been charged under Section 302/149) under Section 302, IPC simpliciter. This present case does not fall within this category. Mr. Sushil Kumar has, however, placed greater reliance on Ashraf Ali's Case AIR 2009 SC (Supp) 654 : 2008 AIR SCW 5608 (supra) whereby this Court relying on a large number of judgments observed as under (Para 13 of AIR (Supp) and AIR SCW): "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 vs. State (Delhi Admn.) AIR 1976 SC 2140 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." 33. Undoubtedly, the observations are extremely relevant for the purpose of this case but each case has to be seen on its own facts, more particularly that the omission had caused prejudice to the accused as would be clear from the rider put by the court in this very case (and highlighted by us). On the contrary, we find that prejudice must ensue has been reiterated by this Court in Suresh Chandra Bahri's Case AIR 1994 SC 2420 : 1994 AIR SCW 3420) (supra) and a very large number of other cases. On the contrary, we find that prejudice must ensue has been reiterated by this Court in Suresh Chandra Bahri's Case AIR 1994 SC 2420 : 1994 AIR SCW 3420) (supra) and a very large number of other cases. This is what the Court has to say in Bahri's Case (Paras 26 and 27 of AIR, AIR SCW): "Learned Senior Counsel Shri Sushil Kumar appearing for the appellant Raj Pal Sharma submitted that in view of the fact that no question relating to motive having been put to the appellants on the point of motive under Section 313 of the Code of Criminal Procedure, no motive for the commission of the crime can be attributed to the appellants nor the same can be reckoned as circumstance against the appellants. It is no doubt true that the underlying object behind Section 313, Cr.P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provisions in Section 313, therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiate the trial unless it is shown that some prejudice was caused to him. In Bejoy Chand Patra vs. State of W.B. AIR 1952 SC 105 this Court took the view that it is not sufficient for the accused merely to show that he has not been fully examined as required by Section 342 of the Criminal Procedure Code (now Section 313 in the new Code) but he must also show that such examination has materially prejudiced him. The same view was again reiterated by this Court in Rama Shankar Singh vs. State of W.B. AIR 1952 SC 1239. In the present case before us it may be noted that no such point was raised and no such objection seems to have been advanced either before the trial court or the High Court and it is being raised for the first time before this Court which appears to us to be an afterthought. Secondly, learned counsel appearing for the appellants was unable to place before us as to what in fact was the real prejudice caused to the appellants by omission to question the accused/appellant Suresh Bahri on the point of his motive for the crime. No material was also placed before us to show as to what and in what manner the prejudice, if any, was caused to the appellants or any of them. Apart from what has been stated above, it may be pointed out that it cannot be said that the appellants were totally unaware of the substance of the accusation against them with regard to the motive part. In this regard a reference may be made to Question Nos. 5, 6 and 7 which were put to the appellant Suresh Bahri in the course of his statement recorded under Section 313, Cr.P.C. The sum and substance of these questions is that from the prosecution evidence it turns out that the acquitted accused Y.D. Arya the maternal uncle of the appellant Suresh Bahri was living in a portion of the upper storey of his house at Delhi. He with the consent of Santosh Bahri the mother of Suresh Bahri, was interfering in the family affairs as well as in business matters by reason of which the maternal uncle had to leave the house and that having regard to the future of her children Urshia Bahri not only wanted to manage the property but also to dispose of the same which was not liked by Suresh Bahri and with a view to remove Urshia Bahri from his way the appellant Suresh Bahri wanted to commit her murder. In view of these questions and examination of Suresh Bahri, it cannot be said that he was totally unaware of the substance of the accusation and charge against him or that he was not examined on the question of motive at all. In view of these questions and examination of Suresh Bahri, it cannot be said that he was totally unaware of the substance of the accusation and charge against him or that he was not examined on the question of motive at all. In the facts and circumstances discussed above it cannot be said that any prejudice was caused to the appellant. The contention of the learned counsel for the appellants in this behalf, therefore, has no merit." 34. We see that the facts of each case have to be examined but the broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him. We see from the case in hand that not only were the questions pertaining to the helmet and the ligature marks on the neck put to the Doctor and even in a way to the appellant but the defence counsel had raised comprehensive arguments on these core issues not only before the trial court and the High Court but before us as well. The defence was, therefore, alive to the circumstances against the appellant. No prejudice or miscarriage of justice has, thus, been occasioned." 13.6 In the case of Alister Anthony Pareira vs. State of Maharashtra, AIR 2012 SC 3802 which has been referred to in the case of Nar Singh (supra), the Supreme Court has held that when the accused was fully aware of the prosecution evidence and had the full opportunity to say what he wanted to say and when no prejudice was caused to the accused there was no case of breach of Section 313 of the Criminal Procedure Code. 14. It is in this context that the judgment relied upon by Learned Advocate Mr. Thakore needs to be considered. Even in the judgment of Nar Singh (supra), the Supreme Court has observed as under: "20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313, Cr.P.C. has materially prejudiced him or is likely to cause prejudice to him. Thakore needs to be considered. Even in the judgment of Nar Singh (supra), the Supreme Court has observed as under: "20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313, Cr.P.C. has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313, Cr.P.C. it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313, Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused." 15. Therefore from the aforesaid judgments of the Supreme Court, the position of law that emerges is that merely because the accused pleads that there is violation of Section 313 of the Criminal Procedure Code, inasmuch as much incriminating material has not been brought to the notice of the accused by itself shall not make a conviction susceptible to be set aside or nudge the Court to take a view to remit the case for a retrial from the stage of Section 313 proceedings. What has to be essentially pleaded by the accused is that such omission has caused prejudice to the accused. 16. In the facts of the case on hand as discussed hereinabove, the accused has been put to notice of the incriminating material against him. He has merely denied the incident or has said he does not know. What has to be essentially pleaded by the accused is that such omission has caused prejudice to the accused. 16. In the facts of the case on hand as discussed hereinabove, the accused has been put to notice of the incriminating material against him. He has merely denied the incident or has said he does not know. When he had been put to notice of all material circumstances as stated hereinabove and in absence of any prejudice caused to him for the omission to bring the report of the Scientific Officer to his notice as he had been put to such notice by Panchnamas, discovery as well as recovery of the blood stained clothes and the axe and therefore merely an additional factor of the omission on the prosecution to bring to the notice the blood group on such axe and clothes which have been recovered and discovered at his instance would not cause prejudice to him and the contention of Mr. Thakore must therefore fail. 17. The statement of the accused under section 313 of the Criminal Procedure Code is on record. When such statement is seen, the accused was subsequently put questions on the discovery panchnama at Ex. 10 and the panchnama by which the clothes of the accused and the injured Kantaben were recovered. The statements of the witnesses who were examined were put to his notice and except a bare denial there is nothing on record. Moreover, from the clothes of the accused blood stains were found. Even from the clothes of the injured witness it was found that there were cut marks which could be caused as a result of the axe. The discovery panchnama at Ex. 10 under which the muddamal axe was discovered at the instance of the accused also shows that there were blood marks on the axe and on the handle of the axe. 18. Taking these factors into consideration particularly the fact that blood stains were found on the clothes and on the muddamal weapon, discovery at the hands of the accused, merely not putting the accused to the notice of the incriminating fact of the serological report at Ex.40 would not prejudice the case of the accused. 18. Taking these factors into consideration particularly the fact that blood stains were found on the clothes and on the muddamal weapon, discovery at the hands of the accused, merely not putting the accused to the notice of the incriminating fact of the serological report at Ex.40 would not prejudice the case of the accused. The only scientific evidence that was brought forward by virtue of Ex.40 Serological report was the fact that the blood groups on the axe and the clothes were that of groups A and B i.e. of the deceased and the injured Kantaben respectively. Merely because the serological report brought out an additional fact of the blood group in view of the scientific evidence which confirms the only fact that the blood group was that of the deceased and the injured Kantaben would not have been said to be a factor incriminating which was not brought to his notice and which shall prejudice the case of the accused. Looking to the reasons discussed hereinabove, therefore we see no reasons to interfere with the judgment and order passed by the Additional Sessions Judge, Dahod. 19. Accordingly, the appeal is hereby dismissed. The judgment and order dated 28.03.2011 passed in Sessions Case No. 44 of 2009 is confirmed. R & P to be transferred to the trial court forthwith. Appeal Dismissed.