JUDGMENT : Sunil B. Shukre, J. 1. The appeal challenges the legality and correctness of the judgment dated 23.5.2018 rendered in Sessions Case No. 78 of 2016 by the Adhoc District Judge-2 and Additional Sessions Judge, Chandrapur thereby convicting the appellant (hereinafter referred to as the “accused”) of the offences punishable under Sections 302 and 201 of the Indian Penal Code and giving him capital punishment on the first count and rigorous imprisonment for five years on the second count together with fine of Rs. 1000/- accompanied by the default sentence of simple imprisonment for ten days. 2. The confirmation case seeks confirmation of the death sentence as per Section 366 of the Code of Criminal Procedure. 3. Briefly stated the facts of the case are as under: (a) The allegation against the accused was that he intentionally killed his own mother in between 09.30 am and 11.00 am on 20th April 2016 at his own residence. (b) About four years prior to the incident, the accused got married to Padmaja Naidu. Since his marriage, the accused along with his wife used to reside in his parental house at Chandrapur. The house was also inhabited by the parents of the accused, deceased Anjali, the mother and Hemant Kulkarni, the father of the accused. The accused, at the time of incident, had a mobile shop which used to be looked after mainly by him. His father used to assist the accused in running of the shop. His wife Padmaja was a teacher in New India Convent, Chandrapur. Mother of the accused, deceased Anjali, was a homemaker and generally used to stay at home. The mobile shop of the accused used to be opened at about 07.45 am by his father and accused used to reach his shop around 10.00 am everyday while his wife Padmaja used to leave for school at about 07.45 am and return home at about 12.00 noon every day. (c) The accused had borrowed money from several persons and institutions and was alleged to be under the substantial debt of about Rs. 20 lakhs at the relevant time. This had made the accused suffer from stress and mental disturbance. It is alleged that the accused was interested in disposing of the house for, he felt that the sale proceedings would help him sail through the difficult situation of his indebtedness. 20 lakhs at the relevant time. This had made the accused suffer from stress and mental disturbance. It is alleged that the accused was interested in disposing of the house for, he felt that the sale proceedings would help him sail through the difficult situation of his indebtedness. The mother of the accused, however, opposed the idea. She would put down her foot whenever any proposal was mooted by the accused for selling of the house. There used to occur on and off skirmishes on the issue between accused and his mother. (d) With the dawning of day of 20th April 2016, members of Kulkarni family got themselves engaged in their respective daily chores and routine. The father left for the shop while Padmaja went to the school. The accused still had some time to go to his shop. Everything seemed normal on the surface and none of the family members had any inkling about the storm that was going to strike the house. The mother of the accused at about 09.30 am or sometime thereafter, started performing her routine rituals as a part of offering of worship to the God by her. The devil in the accused then woke up. It reminded him of a knife he had already purchased in the last week of March 2016 from one super bazar. It is alleged that the accused gave a blow of wrench on the head of the deceased from back side. The deceased collapsed on the ground. But, it appears, she did not lose consciousness. The accused pulled out the knife he was possessing and gave its blows to his mother. The deceased mother put up resistance and started shouting for help. The accused tried to gag her mouth when the injured mother gave a full blooded bite to the right ring finger of the accused. It was partially cut. The accused then dragged the injured mother to the bedroom and pulling her up on to the cot, the accused cut her throat by means of knife. By that time, the injured mother had already bled profusely and the cut injury dealt to her on her throat finally extinguished her life. (e) The blood drops lay scattered all over. The accused swept the floor and the cot stained by blood. He dumped the bloodstained knife and the wrench in the dicky of his two-wheeler (Honda Activa make). By that time, the injured mother had already bled profusely and the cut injury dealt to her on her throat finally extinguished her life. (e) The blood drops lay scattered all over. The accused swept the floor and the cot stained by blood. He dumped the bloodstained knife and the wrench in the dicky of his two-wheeler (Honda Activa make). Accused went to the clinic of his family doctor at about 11 am and got himself treated for his injury to the ring finger. He put the doctor's prescription in the dicky of his two-wheeler and then he went home. (f) Padmaja came back home at about 01.00 am and the door was opened by the accused. On an enquiry made by her about the mother, the accused told her that she was sleeping in her bedroom. Padmaja went to the kitchen for preparing chapati and in the meantime, on the pretext of some message having been received on his cell-phone, the accused left the house. After some time, father of the accused also returned home. When Padmaja and father of the accused were at home, Padmaja received on her cell-phone some text messages from the accused which indicated that something was terribly wrong with him because of which the accused wanted to put an end to his life. Through the text messages, accused also confessed to having killed his mother. (g) The complainant Santosh Naidu, being the real brother of Padmaja was informed of the whole incident by Padmaja. Santosh, in the evening at about 05.00 pm, went to the Police Station and lodged a report against the accused. When he was present at the Police Station, he came across the text messages sent to him by the accused which were quite similar to the ones received by his sister. He gave information about the messages to the police. 4. On the basis of information so received, Ram Nagar Police Station, Chandrapur registered offences punishable under Sections 302 and 201 of the Indian Penal Code against the accused and commenced investigation. They visited the spot of incident, prepared necessary panchanama, seized articles and recorded statements of witnesses. The postmortem of the dead body of Anjali was conducted on the next day. It showed that the death of Anjali was due to the cut injury to her throat. Further panchanamas and necessary seizures were made. They visited the spot of incident, prepared necessary panchanama, seized articles and recorded statements of witnesses. The postmortem of the dead body of Anjali was conducted on the next day. It showed that the death of Anjali was due to the cut injury to her throat. Further panchanamas and necessary seizures were made. Statements of some more witnesses were recorded. Meanwhile, accused had also been arrested. Upon completion of investigation, police filed chargesheet against the accused for the offences which were investigated against him. Charge was framed against the accused. On merits of the case, the learned Additional Sessions Judge found that the prosecution succeeded in establishing the offences with which the accused was charged and accordingly, by the impugned judgment and order, accused came to be convicted and sentenced as stated in paragraph 1 of this judgment. 5. We have heard Shri R. M. Daga, learned counsel for the accused and Shri N. B. Jawade, learned Assistant Government Pleader for the State at length. 6. The arguments of Shri R. M. Daga, learned counsel for the accused revolves around the following aspects of the case : (a) That, though the case is solely based upon circumstantial evidence, not each of the circumstances stated to be forming a continuous chain of events leading to death of Anjali, has been proved beyond doubt. (b) That, the motive behind the crime has not been proved; that so-called confessional messages have not been proved; the linkage that the injury suffered on the right finger of the accused with the crime has not been proved and the injuries stated in the postmortem report not having been described specifically by the Medical Officer, have not been proved. (c) The evidence regarding DNA profile and nail clipping of the mother of the accused cannot be relied upon and the other circumstantial evidence can also not be relied upon. (d) The Medical Officer has not specifically deposed that the injuries suffered by deceased Anjali or any one of them were or was sufficient in the ordinary course of nature to cause death. (e) The learned Adhoc Sessions Judge has relied upon inadmissible evidence. (f) Several incriminating circumstances have not been put to the accused by the trial Court in order to elicit his answers and explanations to them at the time of recording of his statement under Section 313 Cr. (e) The learned Adhoc Sessions Judge has relied upon inadmissible evidence. (f) Several incriminating circumstances have not been put to the accused by the trial Court in order to elicit his answers and explanations to them at the time of recording of his statement under Section 313 Cr. P. C. (g) The accused had no criminal antecedents and all the circumstances not having been proved beyond doubt, the accused deserves to be acquitted by giving benefit of doubt and alternatively deserves leniency in the sentence awarded to him. 7. Shri Jawade, learned Additional Public Prosecutor invites our attention to the aspects which, according to him, are vital to this case and they are as given below : (a) That, all the circumstances forming a continuous chain have not been proved individually beyond any manner of doubt. (b) That, it may be that the material prosecution witnesses like the complainant (PW 2 Santosh Naidu), wife of accused (PW 3 Padmaja) and father of the accused (PW 5 Hemant Kulkarni) have turned hostile to the prosecution, but that has not affected the worth of the prosecution case in a substantial manner. (c) That, there are extrajudicial confessions given by the accused to his relatives about his killing the mother and when they are read with other evidence, the guilt of the accused stands proved. (d) That, the evidence of the Medical Officer does not contain so many flaws as have been pointed out. (e) That, spot panchanama, inquest panchanama and other panchanamas and reports have also been proved beyond any manner of doubt by the prosecution and all of them when read together with the other evidence, support the prosecution case. (f) That, the presence of accused in the house along with his mother with nobody else present in the house at the relevant time, has been proved and it is a material circumstance going against the accused. (g) That, the accused had suffered a bite injury on his right finger which he got bandaged from a doctor and when asked about the same, the accused gave false explanation. (h) Some of the circumstances may not have been put to accused by the trial Court, but that has not affected prosecution case as a whole. (g) That, the accused had suffered a bite injury on his right finger which he got bandaged from a doctor and when asked about the same, the accused gave false explanation. (h) Some of the circumstances may not have been put to accused by the trial Court, but that has not affected prosecution case as a whole. (i) All these circumstances of the case and the extrajudicial confession given by the accused leave no manner of doubt that he has committed the offence of murder of his mother in the hope of wiping out his financial indebtedness, which circumstance by itself brings this case into the category of rarest of rare cases. 8. We have gone through the record of the case including the impugned judgment and order with a view to appreciate the rival arguments. It appears to us that this case is primarily based upon circumstances in which certain messages were sent by the accused to his near relatives; conduct of the accused and the other attending circumstances including the circumstances emerging from forensic evidence. Therefore, the first effort to be made, would be of ascertaining and identifying each of these circumstances. 9. On going through the evidence of the prosecution witnesses, especially PW 2 Santosh, PW 3 Padmaja, PW 4 Ketki and PW 5 Hemant as also the forensic and other circumstantial evidence, we find that although several incriminating circumstances have appeared in such evidence, many of them have not been put to the accused at all while recording his statement under Section 313 Cr.P.C. 10. To illustrate the point so put forward, we would say that the circumstances appearing in the depositions of PW 2 Santosh, PW 3 Padmaja, PW 4 Ketki and PW 5 Hemant, in many of their hues and colour, forming together incriminating evidence against the accused, have not been brought to the notice of the accused so as to elicit his response to them. As for example, PW 2 Santosh has admitted in his cross examination that he received one message from mobile of the accused when he had been to Police Station and thereafter police seized the same, but this circumstance has not been informed to the accused under the process of Section 313 Cr. As for example, PW 2 Santosh has admitted in his cross examination that he received one message from mobile of the accused when he had been to Police Station and thereafter police seized the same, but this circumstance has not been informed to the accused under the process of Section 313 Cr. P. C. The other examples are like – PW 3 Ketki admitting that she started weeping after seeing the dead body; that her father-in-law told her that it was a police case; that the accused had informed her that he was indebted in the sum of Rs. 5 lakhs in the business of mobile; PW 5 admitting that when he tried to contact the accused, his cell-phone was found switched off; PW 5 Hemant having noticed blood over the finger of the accused when he came to shop at about 11.00 am; PW 5 Hemant admitting that accused was indebted to loan and that his wife was asking the accused to pay the amount of marriage expenses and so on and so forth. The forensic evidence containing incriminating circumstances also appears to have not been properly pointed out to the accused. Similar lacuna is also noticed in respect of medical evidence. The illustrations given here are only meant for demonstrating the point that has been raised here and not as an exhaustive list of all the circumstances forming incriminating evidence against the accused and the trial Court would have to consider the same through in depth examination of the same. 11. Whenever there is a failure on the part of the trial Court to bring to the notice of the accused all the incriminating circumstances, the result is, the circumstances are rendered inadmissible in evidence and that they cannot be read against the accused. Apart from failure of bringing several incriminating circumstances to the knowledge of accused, we also find that the questions that are framed under the process of Section 313 Cr. P. C. were complex, combining together many of the circumstances, whereas the well settled law would tell us that the accused must be questioned separately about each material circumstance intended to be used against him as the whole object of Section 313 is to afford to accused a fair and proper opportunity of explaining the circumstances appearing against him. P. C. were complex, combining together many of the circumstances, whereas the well settled law would tell us that the accused must be questioned separately about each material circumstance intended to be used against him as the whole object of Section 313 is to afford to accused a fair and proper opportunity of explaining the circumstances appearing against him. The law is that the questions asked must be fair and they must be in such a form that even an ignorant or illiterate person would be able to understand them. A useful reference in this regard may be made to the law laid down by the Hon'ble Apex Court in the recent cases of Sujit Biswas v. State of Assam reported in (2013) 12 SCC 406 and Sukhjit Singh v. State of Punjab reported in (2014) 10 SCC 270 . 12. So, we find that there is material defect in the conduct of the trial of the accused by the learned Adhoc Additional Sessions Judge. But, we are also of the opinion that this defect cannot be treated as fatal to the prosecution, rather it has to be treated as a curable defect as it is possible once again to examine the accused under Section 313 cr. P. C. by following proper procedure and the applicable law by the trial Court and in doing so, no new material is going to be added and thus, there would be no prejudice caused to the accused. This would then be a case of remand for retrial of the accused from the stage of his examination under Section 313 Cr. P. C. and a fresh decision of the trial Court in accordance with law. 13. In view of the above, we do not find it necessary to consider the rival arguments advanced on merits of the case. 14. In the result, following order is passed : Order The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the trial Court for retrial from the stage of examination of the accused under Section 313 Cr. P. C. by following proper procedure and applicable law and rendering fresh decision thereafter in accordance with law. The trial Court shall decide the case within a period of three months from the date of receipt of Record and Proceedings. Let R & P go down immediately. P. C. by following proper procedure and applicable law and rendering fresh decision thereafter in accordance with law. The trial Court shall decide the case within a period of three months from the date of receipt of Record and Proceedings. Let R & P go down immediately. Accused be produced before the concerned Court of Sessions on 19th August 2019. Appeal and Confirmation Case are disposed of accordingly.