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TMI Blog2008 (7) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... artem. The word may in Clause (a) of Sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under Clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. In certain cases when there is perfunctory examination u/s 313 of the Code, the matter is remanded to the trial Court, with a direction to re-try from the stage at which the prosecution was closed. In the instant case, the questions put to the accused in his examination u/s 313 read as follows: The witnesses have stated in their evidence that at about 9.30 a.m. on the day of occurrence you caused severe injuries to Khairul Hoque by assaulting him on the head from behind with a piece of timber and that in the evening on the very day he succumbed to the injuries in Guwahati Medical College Hospita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as the `deceased') sustained injuries on his head. The injured was removed to the Gauhati Medical College Hospital where he succumbed to injuries at about 5.30 p.m. Police registered a case and after completion of the investigation submitted charge sheet under Section 302 IPC. On committal, learned trial Court framed charges under Section 302 IPC. During the trial prosecution examined 10 witnesses including the doctor and the Investigation Officer. Accused also examined 3 witnesses to substantiate its plea of innocence. P.W.1 is the informant who reported about the incident and attended Gauhati Medical College Hospital. He was present during the inquest. PW-2 Md. Nurul Islam deposed that he was not in Gauhati and when he was contacted by police he informed the police that he knew both accused and deceased. Police took his help to identify the accused but accused could not be found. On the day of occurrence, PW-3 Mustt. Nurjahan Begum, was informed by Mozaraf that her husband was assaulted by Asraf and the victim had been admitted in the Gauhati Medical College Hospital. She saw the dead body on the next day when it was brought to her place. According to this witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tissues are healthy. Cranium and Spinal Canal: Scalp- As described in injury No. 1 and injury No. 2 clotted blood present underneath the whole of the scalp except in the frontal region. Skull- Featured fracture of the skull 16 cm long involving the frontal and right parietal bone extending from above the right orbit backwards and posteriority and ending in the landoid suceer.... 4. According to the doctor the cause of death was due to coma resulting from head injury. The injuries were ante- mortem and caused by blunt weapon and consistent to be homicidal in nature. PW-8 is Mozafar Hussain, who at the relevant time was clearing the jungle of the well of his rented house at Santipur and at that time he saw Khairul run past behind him. He saw accused Asraf Ali going five feet behind him. He saw and found Khairul lying on the road some 25 yards away from the well. Khairul sustained injury on his head. He also saw blood coming out of his head. He did not see accused Asraf Ali there. According to this witness he helped the deceased to get admission at the Medical College Hospital. Khairul died in the hospital. PW-9 Maniruddin was declared hostile by the prosecution. PW-10 is the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was noted that the trial Court faltered in its duty in the examination. But the High Court felt that no material prejudice was caused to the accused and the accused was found to be absconding for long time and rancorous relationship between the deceased and the accused was established. However, the High Court found that the proper conviction would be under Section 304 Part II IPC. 7. Learned Counsel for the appellant submitted that the true purpose and import of Section 313 of the Code has not been kept in view by the High Court. It is pointed out that none of the witnesses were really eye witnesses. But the Court proceeded on the basis as some persons had seen the incidence. 8. Learned Counsel for the respondent on the other hand submitted that the questions though broadly formulated covered the basic features. 9. Section 313 of Code reads as follows: 313. Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court-- (a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence and treated as evidence and be duly considered at the trial. 12. In Sharad Birdhichand Sarda v. State of Maharashtra 1984CriLJ1738 it was inter-alia noted as follows: 143- Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh AIR1953SC468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C p. 806, para 16) 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. 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 circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 a.m. on the day of occurrence you caused severe injuries to Khairul Hoque by assaulting him on the head from behind with a piece of timber and that in the evening on the very day he succumbed to the injuries in Guwahati Medical College Hospital. You may say if you have any regarding the evidence. P.W. 10 Ahindra Kumar Kalita (S.I. of Police) has stated in his evidence that during his investigation into this case when you produced a piece of timber he seized it through Ext.4. You may say if you have any regarding this evidence. You may say if you have any as regards allegation of committing murder leveled against you and other evidence. You may adduce evidence in defence if you have any. Summon witnesses. 20. As rightly contended by learned Counsel for the appellant no witness has stated that on the date of occurrence the accused had caused severe injury to the deceased by assaulting him on the head from behind. The circumstances which were relied upon by the trial Court to find the accused guilty were not specifically brought to the notice of the accused. Therefore, in essence, his examination under Section 313 of the Code was rendered an empty formality. On that count alon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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