Md Sahid Khan vs The State Of Assam And Anr
2021 Latest Caselaw 3218 Gua

                                                                     Page No.# 1/19

GAHC010261722018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.A./391/2018

            MD SAHID KHAN
            S/O MD. HAMID KHAN, R/O NO. 2 DIGHALI GAON, P.S. TINGKHONG, DIST.
            DIBRUGARH, ASSAM, PIN 786001


            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP, ASSAM.

            2:SMT. HIRAMONI MAHATO
             D/O DILIP MAHATO
             R/O 2 NO. DIGHALIA
             P.S. TING KHANG
             DIST.DIBRUGARH
            ASSAM
             PIN 78600

Advocate for the Petitioner   : MR. A K BHUYAN

Advocate for the Respondent : Ms. S. Jahan, Addl. P.P., Assam.

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

Dates of hearing : 22.11.2021 & 23.11.2021.

Date of judgment :            01.12.2021.
                                                                            Page No.# 2/19


                           JUDGMENT AND ORDER (CAV)

(Suman Shyam, J)

Heard Mr. A. K. Bhuyan, learned counsel appearing for the sole appellant. We

have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam,

appearing for the State/respondent No.1. None has appeared for the

informant/respondent No.2.

2. By filing the instant appeal, the judgment and order dated 24.09.2018 passed

by the learned Additional Sessions Judge, Dibrugarh in Sessions Case No.201/2012

convicting the sole appellant under Section 302 of the Indian Penal Code and

sentencing him to undergo rigorous imprisonment for life and also to pay fine of

Rs.10,000/-, in default, to undergo simple imprisonment for a period of three months,

has been challenged primarily on the ground that there is no evidence available on

record so as to sustain the conviction of the appellant in this case.

3. The prosecution case, in a nutshell, is that on 03.09.2011, at about 5.50 p.m. the

appellant Sahid Khan had beheaded Junglee @ Bijay Mahato by hacking him with a

dao in front of hotel Annapurna at Bamunbari Tiniali and thereafter, was seen to be

roaming around with the severed head of the deceased. On 03.09.2011 itself, at

about 5.55 p.m., a police personnel named Sri Nripen Bora had called up Sri Jyoti

Lahon, the Officer-in-Charge of Bamunbari Police Outpost and informed him about

the incident. Upon receipt of the aforesaid information, General Diary Entry No.46

dated 03.09.2011 was made whereafter, the police had rushed to the place of

occurrence. Upon arrival at the place of occurrence, the Sub-Inspector Jyoti Lahon Page No.# 3/19

had recovered the dead body as well as the severed head of the deceased from

the accused person. On 04.09.2011, the sister of the deceased viz. Hiramoni Mahato

had lodged an F.I.R. before the Officer-in-Charge of Bamunbari Police Outpost which

was forwarded to the Officer-in-Charge of Moran Police Station. Based on the F.I.R.

dated 04.09.2011, Moran P.S. Case No.128/2011 was registered under Section 302 of

the IPC and the matter was taken up for investigation.

4. During the course of investigation the accused was arrested and the weapon

used in commission of the offence was seized. The Investigating Officer (I.O.) had

recorded the statement of the witnesses. Inquest and post-mortem examination was

conducted over the dead body and the post-mortem report was also collected by

the I.O. Upon completion of the investigation, the I.O. had laid charge-sheet under

Section 302 of the I.P.C. against the accused. The charge was read over and

explained to the accused but since he had pleaded innocence, the accused was

made to face the trial.

5. During the course of trial, the prosecution side had examined as many as six

witnesses including Dr. Manoj Kumar Singha (PW-5) who had conducted the post-

mortem examination and the Investigating Officer, Sri Jyoti Lahon (PW-6). After

recording the prosecution evidence, the statement of the accused was recorded by

the learned trial court under Section 313 of the Cr.P.C. wherein, the accused had

denied all the incriminating circumstances put to him. The defence side, however,

did not adduce any evidence. Upon appreciation of the evidence available on

record, the learned trial court had found the appellant guilty of committing the Page No.# 4/19

offence under Section 302 of the I.P.C. and sentenced him as aforesaid.

6. By referring to the impugned judgment dated 24.09.2018, Mr. Bhuyan, learned

counsel for the appellant, has argued that out of the six witnesses examined by the

prosecution, as many as three of them viz., PWs-1, 2 and 3 were declared as hostile

witnesses. There are material contradictions in the testimony of PW-4, who is the

informant in this case, and such contradictions have also been duly proved by the

I.O. According to Mr. Bhuyan, save and except the testimony of the I.O. (PW-6) there

is no evidence to even remotely implicate the appellant with the commission of the

offence. Since the I.O. is an interested person, who was controlling the outcome of

the investigation, according to Mr. Bhuyan, it would be unsafe to convict the

appellant solely on the testimony of the I.O. It is also the submission of Mr. Bhuyan

that although the PW-1, Sri Babulal Paul has been examined as an eye-witness to the

occurrence, yet, this witness had not only turned hostile but even the evidence

adduced by this witness was never put to the accused person while recording his

statement under Section 313 of the Cr.P.C. Notwithstanding the same, submits Mr.

Bhuyan, the learned trial court has relied upon the testimony of PW-1 to convict the

appellant. According to the learned counsel for the appellant, the failure on the part

of the learned Sessions Judge to put all incriminating circumstances including the

evidence of PW-1 to the accused person, while recording his statement under

Section 313 Cr.P.C. was highly prejudicial to the interest of the accused and,

thereafter, the said omission would have a vitiating effect on the trial. Contending

that the failure on the part of the learned Additional Sessions Judge to give an

opportunity to the accused to explain his stand vis-à-vis the incriminating evidence of Page No.# 5/19

PW-1 is a fatal defect which according to Mr. Bhuyan, was incurable. Mr. Bhuyan,

therefore, submits that the impugned judgment and order passed by the learned trial

court be set aside and the appellant be acquitted.

7. Opposing the above submission, Ms. S. Jahan, learned Addl. P.P., Assam, has

argued that although it is correct that some incriminating circumstances including

the evidence of the PW-1 were not put to the accused while recording his statement

under Section 313 of the Cr.P.C. but in the absence of any prejudice being shown by

the appellant or his counsel for such non-conformity, there would be no requirement

for this Court to set aside the impugned judgment passed by the learned trial court.

Alternately, the learned Addl. P.P. submits that in the event this Court is of the view

that failure to put such incriminating circumstances before the accused has had a

vitiating effect on the trial, the matter be remitted back to the learned trial court for

re-trial from the stage of recording of statement of the accused person. In support of

her aforesaid argument Ms. Jahan has relied upon a decision of the Hon'ble Supreme

Court rendered in the case of Nar Singh Vs. State of Haryana reported in (2015)1 SCC

496.

8. We have considered the submissions advanced by the learned counsel for

both sides and have also meticulously gone through the materials available on

record.

9. As noticed above, the prosecution side had examined as many as six

witnesses so as to bring home the charge framed against the accused. Sri Babulal

Paul, who is a resident of Bamunbari No.1, Kekuri Gaon and a businessman by Page No.# 6/19

profession, was examined as PW-1. During his deposition before the court, PW-1 has

stated that he knew the accused as well as the deceased person and that the

occurrence took place about two years ago at around 5/5.30 p.m. At that time he

was present in his tea stall. As there was a quarrel outside his shop, he had closed his

shop. His statement was recorded by the police and the Magistrate. At that stage,

the prosecution had made a prayer to declare this witness as a hostile witness and to

allow the prosecution side to cross-examine him. There is, however, no reflection in

the record as to whether the learned trial court had granted such a prayer made by

the prosecution and declared the PW-1 as a hostile witness. However, we find that

the remaining part of the testimony of PW-1 has been recorded under 'inverted

commas' which is reproduced herein below for ready reference :-

"I am the owner of Annapurna Hotel situated at Bansbari Tiniali. On

3.9.2011 at about 5.50 pm while I was sitting near my cash box Jungli and

Soyeb Khan came to his hotel and after taking tea both of them went out and

were gossiping in front of my hotel. Suddenly Sahid Khan assaulted Jungli with a

dao and fell him down on the ground. Sahid Khan then gave some more blow

on the neck of Jungli and severed the head from the body. He then took the

severed head of Jungli and chased other people to cut them. I saw with my

eyes Sajid Khan cutting Jungli with a dao. I knew both of them i.e. Soyed Khan

and Jungli. Seeing Sayed Khan taking the severed head of Jungli and a dao

out of fear asked my employee to close the hotel. I do not know why Sahid

Khan murdered Jungli. Ext.1 is my statement given before Magistrate and

Ext.1(1) is my signature. It is not a fact that I have given false evidence today to Page No.# 7/19

save the accused."

During his cross-examination, PW-1 has stated that there was no quarrel or enmity

between the accused and the deceased and the time of occurrence was evening

and people were not visible from a distance. PW-1 has also exhibited his statement

under Section 164 Cr.P.C. recorded before the Magistrate as Ext-1.

10. PW-2, Sri Ajoy Sahu and PW-3, Sri Nitu Gogoi did not support the prosecution

case as a result of which both the witnesses were declared as hostile witnesses and

cross-examined by the prosecution as well as the defence side.

11. PW-4, Smti. Hiramoni Mahato is the sister of the deceased and the informant in

this case. PW-4 has deposed that the incident took place around 5.30 p.m. and at

that time she was at her residence. Her cousin had informed her that accused Sahid

had cut her elder brother and had also informed her that the occurrence took place

in front of hotel Annapurna situated at Bamunbari Tiniali. On receipt of such

information she went to the place of occurrence and saw that taking her elder

brother's head accused Sahid was shouting. PW-4 has stated that she had seen the

beheaded dead body of her elder brother and that Sahid was banging the severed

head here and there. Immediately she went to the Bamunbari P.S. and informed the

police about the incident. Later, the police went to the place of occurrence and

took the dead body to Moran P.S. At that time the accused had also cut a dog with

a dao in his hand. The following day, an ejahar was lodged at the Bamumbari P.S. by

her. During her cross-examination, PW-4 has admitted that she had not told the

police that her cousin "Kushal" had informed her about the incident. It transpires from Page No.# 8/19

the statement of the PW-4 recorded by the I.O. that she did not state before the

police that when she had arrived at Bamunbari she had seen the accused shouting

by taking the severed head of the deceased i.e. her brother by banging it here and

there and by saying something about Rs.70,000/-. She had also not told anything to

the police about a dog being cut by the accused.

12. PW-5, Dr. Manoj Kumar Singh had conducted the post-mortem examination

on the dead body and submitted report. From the post-mortem report it is apparent

that as many as three injuries were found in the dead body and there was one cut

injury separating the head at the level of 4 th cervical vertebrae from the rest of the

body.

13. Sri Jyoti Lahon was the Investigating Officer (I.O.) who had carried out

investigation in this case and submitted charge-sheet. The I.O. was examined as PW-

6. The PW-6 has stated that during investigation he had recorded the statement of

PW-1, Sri Babulal Paul, who had stated before him on 03.09.2011 at about 5.50 pm

that while he was sitting near his cash box in the hotel, Jungli and Sahid Khan came

to his hotel. PW-1 had also stated before him that after taking tea, both of them went

out and were gossiping in front of his hotel. The witness had further stated that Sahid

Khan had suddenly assaulted Jungli with a dao as a result of which Jungli fell down

and then Sahid Khan gave some more blows on his neck and severed the head of

Jungli. PW-1 had also stated before him that accused Sahid Khan took the severed

head of Jungli and chased the other people to cut them. PW-1 had also stated that

he had seen with his own eyes that Sahid Khan was cutting Jungli with a dao. The I.O.

Page No.# 9/19

has also exhibited the statement of Babulal Paul recorded by him as Ext-5 and

proved his signature as Ext-5(1). PW-6 has also proved Mat. Ext-1 which was the dao

seized by him but has confirmed during his cross-examination that there is neither any

seizure of the severed head from the accused nor was the dao sent to the Forensic

Science Laboratory for its report. The I.O. (PW-6) has also stated during his cross-

examination that although he had recorded the statements of Babulal Paul, Akash

Tanti, Gobin Sawachi, Ajoy Sahu, Mitu Gogoi, Santosh Jajuwa and Hiramoni Mahato

on 03.09.2011 and has also recorded the statements of seizure witnesses Gouri

Shankar Verma and HC Nipen Bora, Constable 1059 Reboti Konwar all of those

witnesses were not examined by the prosecution during trial.

14. From an analysis of the evidence available on record we find that PW-1, in all

probability, was examined by the prosecution as an eye-witness to the occurrence.

The version given by PW-1 during his deposition apparently finds due corroboration

from the statement of this witness recorded under Section 164 Cr.P.C. which is marked

as Ext-1. Not only that, it appears that even the I.O. (PW-6) has corroborated the

version of PW-1 during his deposition. However, we find that the incriminating

materials, more particularly the evidence of PW-1, together with his statement

recorded under Section 164 Cr.P.C., was not put to the accused while recording his

statement under Section 313 of the Cr.P.C. Notwithstanding the same, the learned

trial court had placed heavy reliance on the testimony of PW-1 while convicting the

accused person under Section 302 of the I.P.C.

15. Section 313 of the Cr.P.C. lays down the procedure for recording the Page No.# 10/19

statement of the accused person so as to allow him an opportunity to explain the

incriminating circumstances, if any, appearing in the evidence brought on record by

the prosecution side. Section 313 of the Cr.P.C. is quoted herein below for ready

reference :-

"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) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub- section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."

Page No.# 11/19

16. From a plain reading of Section 313 of the Cr.P.C., it is evident that the said

provision has two distinct part i.e. 313(1)(a) and 313(1)(b). While Section 313(1)(a)

makes it optional for the court to put question to the accused at any stage without

previous warning, Section 313(1)(b) makes it obligatory for the court to question the

accused generally after the witnesses of the prosecution have been examined and

before the accused is called upon to enter his defense.

17. Interpreting Section 313 of the Cr.P.C. the Hon'ble Supreme Court has held in

the case of Asraf Ali vs. State of Assam reported in (2008)16 SCC 328 that Section 313

of the Code casts a duty on the court to put in an inquiry or trial, questions to the

accused for the purpose of enabling him to explain any of the circumstances

appearing in the evidence against him. Each material circumstance appearing in

the evidence against the accused is required to be put to him specifically, distinctly

and separately and failure to do so, would amount to serious irregularity vitiating the

trial if it is shown that the accused was prejudiced. It has further been held that the

object of Section 313 of the Code is to establish a direct dialogue between the court

and the accused and if a point in the evidence is important against the accused

and the conviction is intended to be based upon such point, it would be right and

proper that the accused should be questioned about the matter and be given an

opportunity of explaining it. It has also been held that a circumstance, about which

the accused was not asked to explain, cannot be used against him and in certain

cases when there is a perfunctory examination under Section 313 of the Code, the

matter can be remanded to the trial court with a direction to retry from the stage at

which the prosecution evidence was closed.

Page No.# 12/19

18. In another decision of the Hon'ble Supreme Court rendered in the case of

Paramjeet Singh vs. State of Uttarakhand reported in (2010)10 SCC 439 the Apex

Court, while interpreting the provisions of Section 313 Cr.P.C., has observed that

Section 313 is based on the fundamental principles of fairness. The attention of the

accused must specifically be brought to the inculpatory pieces of evidence so as to

give him an opportunity to offer an explanation if he chooses to do so. Therefore, the

court is under a legal obligation to put the incriminating circumstances before the

accused and solicit his response. This provision is mandatory in nature and casts an

imperative duty on the court and confers a corresponding right on the accused to

have an opportunity to offer an explanation for such incriminatory material

appearing against him. Circumstances which were not put to the accused in his

examination under Section 313 Cr.P.C. cannot be used against him and have to be

excluded from consideration. Having held as above, the Supreme Court has further

observed that an inadequate examination of the accused under section 313 Cr.P.C.

cannot be presumed to have caused prejudice and every error or omission in

compliance of the provision does not necessarily vitiate trial as such errors would fall

within the category of curable irregularities. The question as to whether the trial is

vitiated in a case would depend upon the degree of error and upon whether

prejudice has been or is likely to have been caused to the accused.

19. In the cases of Wasim Khan vs. State of Uttar Pradesh reported in AIR 1956 SC

400 and Bhoor Singh & another vs. State of Punjab reported in AIR 1974 SC 1256 it has

been held that every error or omission in compliance of the provisions of Section 342

of the Cr.P.C. (Section 313 of the new Code) does not necessarily vitiate the trial and Page No.# 13/19

that the accused must show that prejudice has been caused or is likely to have been

caused to him.

20. From the above, it is clear that every error or omission to comply with the

requirement of Section 313 of the Cr.P.C. would not automatically vitiate the trial

unless it can be shown that such error has caused prejudice to the interest of the

accused. However, incriminating materials which were not put before the accused

while recording his statement under section 313 of the Cr.P.C. would have to be

excluded by the trial court while appreciating the evidence available on record so as

to convict the accused person.

21. After considering the various decisions of the Supreme Court on the aforesaid

issue including the law laid down in the case of Wasim Khan (supra) and Bhoor Singh

(supra) the Apex Court has, in the case of Nar Singh (supra), examined the scope

and object of section 313 Cr.P.C and highlighted the importance of the statement

recorded under the said provision. In the said decision, it has been observed that the

provisions of Section 313(1)(b) of the Cr.P.C. are aimed at bringing the substance of

accusation to the accused so as to enable him to explain every circumstances

appearing in the evidence against him and as such, the said provision is mandatory

and casts a duty upon the court to offer an opportunity to the accused to explain

every such incriminating evidence available against him. While reiterating the law

governing the subject, the Apex Court has further clarified that the question whether

a trial is vitiated or not due to non-compliance of Section 313 Cr.P.C. would depend

upon the degree of the error and the accused must also show that such non-

Page No.# 14/19

compliance of Section 313 Cr.P.C. has materially prejudiced him or is likely to cause

prejudice to him. Having observed as above, the Supreme Court has further held that

whenever a plea of omission to put a question to the accused on a vital evidence is

raised before the court and the accused has also shown that prejudice has been

caused to him or where prejudice is implicit, the following course of action would be

available to the appellate court.

"30. Whenever a plea of omission to put a question to the accused on vital

piece of evidence is raised in the appellate court, courses available to the

appellate court can be briefly summarised as under:-

30.1. Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is

within the powers of the appellate court to examine and further examine the

convict or the counsel appearing for the accused and the said answers shall

be taken into consideration for deciding the matter. If the accused is unable to

offer the appellate court any reasonable explanation of such circumstance,

the court may assume that the accused has no acceptable explanation to

offer;

30.2. In the facts and circumstances of the case, if the appellate court comes

to the conclusion that no prejudice was caused or no failure of justice was

occasioned, the appellate court will hear and decide the matter upon merits.

30.3. If the appellate court is of the opinion that noncompliance with the

provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned

prejudice to the accused, the appellate court may direct retrial from the stage Page No.# 15/19

of recording the statements of the accused from the point where the

irregularity occurred, that is, from the stage of questioning the accused under

Section 313 Cr.P.C. and the trial Judge may be directed to examine the

accused afresh and defence witness if any and dispose of the matter afresh;

30.4. The appellate court may decline to remit the matter to the trial court for

retrial on account of long time already spent in the trial of the case and the

period of sentence already undergone by the convict and in the facts and

circumstances of the case, may decide the appeal on its own merits, keeping

in view the prejudice caused to the accused."

22. In Nar Singh (supra) the appellant/accused had raised a plea before the

Hon'ble Supreme Court by urging that material evidence in the form of Ext. P-12 i.e.

the information of the ballistic expert, was not put to him while recording his

statement under Section 313 of the Cr.P.C. causing serious prejudice to his interest.

According to the appellant, such material ought to have been completely excluded

from consideration and barring the same, there is no other evidence to sustain the

conviction. That was a case where the High Court had dismissed the appeal filed by

the convict against his conviction by the trial court under Section 302 of the IPC read

with Section 25(1-B) of the Arms Act by rejecting his plea that the only incriminating

material against the appellant was the FSL report Ext. P-12 which was not put to him

while recording his statement under Section 313 of the Cr.P.C. By observing that the

omission to put such material circumstances to the accused did not ipso facto vitiate

the trial nor was the accused entitled to acquittal on the ground of such non-

Page No.# 16/19

compliance with the mandatory provision of Section 313 of the Cr.P.C., the Apex

Court had agreed with the appellant that to some extent his interest had been

prejudiced on account of omission to put the question as to the information of

ballistic expert (Ext.P-12) which was relied upon by the trial court. Accordingly, the

conviction of the appellant in that case under Section 302 of the I.P.C. read with

Section 25(1-B) of the Arms Act awarded by the learned Sessions Judge and affirmed

by the High Court was set aside and the matter was remitted back to the trial court

for proceeding afresh from the stage of recording of statement of the accused under

Section 313 of the Cr.P.C. It was also directed that the trial court shall examine the

accused afresh under Section 313 Cr.P.C. and put specific and separate questions to

the accused with regard to the incriminating evidence and circumstances and shall

also offer an opportunity to the accused to examine the defense witness, if any, and

proceed with the matter. In the meantime, the appellant (convict) was granted

liberty to move the court below for bail if he was so advised.

23. Coming to the facts of the present case, we find that this is also a case where

the learned Additional Sessions Judge has clearly committed a mistake by failing to

question the accused on the evidence adduced by the PW-1 which was not only

sufficiently incriminating against the accused but was also relied upon by the trial

court for convicting the accused. Not only that, we also find that the learned

Additional Sessions Judge had recorded the statement of the accused under Section

313 of the Cr.P.C. in a most perfunctory manner without properly applying his mind on

the nature of prosecution evidence available on record. The learned trial court, in our

view, had failed to frame specific questions on the incriminating materials brought on Page No.# 17/19

record by the prosecution so as to put it to the accused while examining him under

Section 313 Cr.P.C. Having failed to do so, the learned trial court had relied upon the

evidence of PW-1 to convict the accused. The aforesaid recourse, in our opinion, was

not permissible under the law. Having regard to the nature of evidence adduced by

the PW-1 and the degree of reliance placed by the learned trial court on the

testimony of PW-1 while convicting the appellant by the impugned judgment dated

24.09.2018,we are of the opinion that prejudice on the part of the accused is implicit

in the matter and the same does not call for any elaborate argument from the

counsel for the appellant to convince this Court on the aforesaid aspect of the

matter. However, having regard to the facts and circumstances of this case, we are

also of the considered view that such irregularity in the trial is curable in nature and,

therefore, the same cannot be a valid ground for acquittal of the appellant.

24. This Court is conscious of the fact that there is a complaint regarding an act of

gruesome murder of the victim by beheading the deceased in a public place and

there is some evidence led by the prosecution to bring home the charge brought

against the accused. Whether such evidence would be sufficient to prove the

charge brought against the accused and whether, the testimony of hostile witnesses,

more particularly PW-1, either wholly or in part, can be relied upon, by the learned

trial court for the purpose of conviction of the appellant are matters that can be

gone into while appreciating the evidence during trial. However, we are of the view

that the impugned judgment, having taken note of incriminating material brought

against the accused which were not put to him while recording his statement under

Section 313 of the Cr.P.C., stood vitiated in the eye of law. As such, by applying the Page No.# 18/19

principles laid down in the case of Nar Singh (supra) the impugned judgment dated

24.09.2018 is held to be unsustainable in law. We are also of the view that this matter

deserves to be remitted to the learned trial court for re-trial.

25. Although the learned counsel for both the sides have advanced elaborate

arguments, supported by case-laws on the merit of the appeal, having regard to the

recourse that we propose to adopt in this appeal and in order to avoid any prejudice

being caused to either party, we refrain from making any observation on the merit of

the appeal at this stage and leave the learned trial court at liberty to appreciate the

evidence afresh during retrial without being influenced by any observation made in

this order.

26. For the reasons indicated here-in before, the impugned judgment dated

24.09.2018 is hereby set aside. The matter is remitted back to the learned trial court so

as to conduct a retrial of the case from the stage of recording of statement of the

accused under Section 313 of the Cr.P.C. In doing so, the learned trial court shall

formulate specific and separate questions pertaining to all the incriminating evidence

and circumstances brought on record by the prosecution so as to give the accused

an opportunity to furnish proper explanation and thereafter, proceed to decide the

Sessions Case in accordance with law.

27. Considering the fact that the incident took place on 03.09.2011, we direct that

an endeavour be made to conclude the trial and deliver the judgment in Sessions

Case No.201/2012 on merit, as expeditiously as possible, preferably within a period of

six months from the date of receipt of the case record, if necessary, by holding day to Page No.# 19/19

day trial.

Registry to transmit the LCR to the learned trial court through a special

messenger.

Before parting with the record, we also deem it appropriate to observe herein

that since the conviction of the accused/appellant has been set aside on a

technical ground and the matter is being remitted back for retrial and also

considering the fact that the appellant is presently in the jail, he is granted liberty to

move the learned trial court seeking bail, if so advised. If a bail application is move by

the accused, then the same be considered by the learned court below on its own

merit and an appropriate order be passed therein without being influenced by any

observations made in this order.

This appeal stands disposed of accordingly.

                                JUDGE                               JUDGE

T U Choudhury




Comparing Assistant