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TMI Blog2004 (10) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... of his Unit was murdered at Bhutkirhat at a distance of about 150 yards from the State High Way No. 12A by some unknown miscreants of Bhutkirhat on that day. (b) On the basis of such complaint, Rajganj P.S. Case No. 61 of 1995 dated July 31, 1995 under Section 302/34 of the Indian Penal Code was initiated. (c) After completion of investigations, ultimately, chargesheet under Section 302/34 of the Indian Penal Code was given against both the appellants herein. Both of them pleaded not guilty and claimed to be tried. (d) The prosecution produced as many as eighteen witnesses altogether including the Investigating Officer. Documents marked as Exbts. 1 to 8 were relied upon by the prosecution in support of its case. The accused decided not to lead any evidence in support of their respective defences. (e) The learned Sessions Judge on the basis of materials on record arrived at the findings that although there was no eye-witness to the incident of the murder, yet, as the appellants were last seen together with the deceased immediately before his death, the prosecution had been able to prove by circumstantial evidence that the appellants committed the murder. Thus, on the basis of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l appearing on behalf of the State-respondent at the very outset conceded before this Court that framing of questions under Section 313 of the Code of Criminal Procedure was not proper. Mr. Roy, thus, submitted that this Court should remand the matter to the learned Sessions Judge for retrial from the stage of framing questions under Section 313 of the Code of Criminal Procedure. This Court, Mr. Roy continues, therefore, should give an opportunity to the appellants to disclose their defence or to explain the circumstances after directing the learned Trial Judge to frame proper questions regarding involvement of the accused on the basis of evidence already adduced. 11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that so far Mongat is concerned, the prosecution has miserably failed to make out any case whatsoever for implicating him in this case. As indicated earlier, there is no eye-witness of the incident. According to PW-1, the widow of the deceased, on the critical night, immediately after coming back from office, the deceased left for purchasing battery for his torch and immediately after he went away, she had seen M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he PW-3 and PW-4 indicate that even according to prosecution, appellant No. 1 was not last seen together with the deceased as narrated by those two witnesses. Moreover, appellant No. 1 cannot have any motive of murdering the deceased as it was he who according to the prosecution informed the alleged illicit connection of appellant No. 2 with the daughter-in-law of the landlord and on the basis of such information, the deceased reprimanded the appellant No. 2 lest the deceased and other B.S.F people tenanted in that house are evicted by the landlord. 16. Thus, in this case there was no justification of implicating Mongat as he was not last seen together with the deceased on that evening and at the same time, there could not be any motive of Mongat to kill the deceased as he himself was the informer of the alleged relation of the appellant No. 2 with the daughter in -law of the landlord to the victim and as such, no question of bearing any ill feeling against the victim arose for making conspiracy with the appellant No. 2 to kill the victim. 17. We, therefore, propose to set aside the conviction and sentence imposed upon the appellant No. 1 namely, Mongat as the prosecution has faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that his brother Nakul Bhusun Das told that one B.S.F. staff named Basant Singh was murdered. On 31.7.95 at about 8 p.m. in the evening he accompanied by some other persons went near the canal and saw that the deceased lying dead with bleeding injuries by the side of the canal. P.W. 6 stated that on 31.7.95 he saw that one B.S.F. staff named Basant Singh being murdered lying by the side of Teesta Canal. P.W. 7 examined the deadbody of the deceased Basant Singh and proved P.M. report Exbt. I. He stated that death was due to shock and haemorrhage. P.W. 8 proved his signature on the deadbody challan Exbt. 2/1 and also signature on the seizure list Exbt. 3/1. He also proved the Khakipant and Ganjee Mat Exbt. 1 (collectively). P. W. 9 proved his signature on the carbon copy of the seizure list Exbt. 4/1. P.W. 11 identified both of you before this Court. P.W. 11 saw that the deadbody worn a Khakipant and Ganjee. P.W. 13 proved his signature on the seizure list of bloodstained fullpant, while Ganjee and P.M. blood Exbt.3/2. He also identified the articles Mat Exbt. I. He proved P.M. blood Mat. Exbt.II. P.W. 14 proved his signature on the inquest report Exbt. 4/2. P.W. 15 proved the writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh v. State, reported in MANU/SC/0030/1951 : [1951]2SCR729 , where the Apex Court emphasised on the requirement of complying with the formalities prescribed in Section 342 of the old Code of Criminal Procedure which is equivalent to Section 313 of the present Code: I cannot stress too strongly the importance of observing faithfully and fairly the provisions of Section 342, Criminal P. C. It is not a proper compliance to read out a long string of questions and answers made in the Committal Court and ask whether the statement is correct. A question of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are true, or whether there is some mistake or misunderstanding despite the accurate recording. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the questions put to him in this case leaves no doubt in our minds that the irregularities committed by the learned Trial Judge in this case have definitely prejudiced the trial. 23. So far the allegations against appellant No. 2 are concerned, as indicated earlier, there has been no fair trial against the appellant No. 2 in view of nature of questions put to him under Section 313 of the Code of Criminal Procedure and at the same time, there is no material on record showing the exact translated form of those questions in Hindi for our scrutiny and as such, in our view, the matter should be remanded back to the learned Sessions Judge for proceeding afresh only against appellant No. 2 from the stage of asking questions under Sections 313 of the Code. After framing appropriate questions, those should be translated in the language desired by the appellant No. 2 and such translated version must be kept on record. The appellant No. 2 should be given an opportunity to explain and if he so desires, he would also be free to lead evidence in support of his defence. We refrain from entering into the merits of the case against him at this stage and the learned Sessions Judge while h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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