[Cites 16, Cited by 0]
Gauhati High Court
Simanta Boruah vs The State Of Assam And Anr on 26 March, 2026
Page No.# 1/18
GAHC010154072023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./294/2023
SIMANTA BORUAH
S/O LATE DINESH CHNADRA BARUAH,
R/O BAMUNGAON PT- I,
P.O.- BORIGAON, P.S.- ABHAYAPURI, DIST.- BONGAIGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM.
2:JAYAMONI CHOUDHURY
D/O LOHIT CHOUDHURY
R/O AAMTOLA
P.S.- ABHAYAPURI
PIN- 783384
DIST.- BONGAIGAON
ASSAM
Advocate for the Petitioner : MS. S NAZNEEN, MR A W AMAN,MR. SURAJIT DAS,SAMIM
RAHMAN,MS SURAYA RAHMAN,MR SARFRAZ NAWAZ,MR. K M HASSAN
Advocate for the Respondent : PP, ASSAM,
Linked Case : Crl.A./261/2023
UTPAL RAY @ UTPAL CH RAY @ NAMAL RAY
Page No.# 2/18
S/O LATE SURESH CH. RAY
RESIDENT OF BAMUNGAON PART I
PS ABHAYAPURI
DIST BONGAIGAON
ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP ASSAM
------------
Advocate for : MR. M J BARUAH
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : Crl.A./221/2023
PRAFULLA RABHA
S/O DIFURA RABHA
RESIDENT OF VILLAGE BAMUNGAON
PO AND PS ABHAYAPURI
DIST BONGAIGAON
ASSAM 783384
VERSUS
STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:SMTI JOYAMANI CHOUDHURY
D/O LOHIT CHOUDHURY
RESIDENT OF AMTALA
PS ABHAYAPURI
DIST BONGAIGAON
ASSAM
783384
------------
Advocate for : MR J DAS
Advocate for : PP
ASSAM appearing for STATE OF ASSAM AND ANR.
Page No.# 3/18
Linked Case : I.A.(Crl.)/522/2023
PRAFULLA RABHA
S/O DIFURA RABHA
RESIDENT OF VILLAGE BAMUNGAON
PO AND PS ABHAYAPURI
DIST BONGAIGAON
ASSAM 783384
VERSUS
STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
------------
Advocate for : MR J DAS
Advocate for : PP
ASSAM appearing for STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
ORDER
26.03.2026
Heard Mr. S. Nawaz, learned counsel for the appellant in Crl.A.
No.294/2023; Mr. P. Bharadwaj, learned counsel for the appellant in Crl.A.
No.221/2023 (with I.A.(Crl.) No.522/2023) and Mr. M.J. Baruah, learned counsel for
the appellant in Crl.A. No.261/2023. Also heard Ms. S.H. Bora, learned APP for the
State.
2. These criminal appeals assail the judgment and order dated 16.05.2023
passed in Sessions Case No. 173(A) of 2014 by the Court of the learned Additional
Sessions Judge (FTC), North Salmara, Abhayapuri, whereby the appellants were
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convicted under Sections 341/354/323/376/34 of the IPC.
3. The records reveal that the alleged offence occurred on 21.07.2013 and the
FIR was lodged on 23.07.2013. The contents of the FIR are quoted below for ready
reference:
"The above-named informant begs to state that around 3:00 p.m. on
21/07/13, the informant along with her three friends, namely Runima
Chetry, Hirakjyoti Ray and Jeki Basumatary, went to Bamungaon tourist
spot for an outing. Some 15/20 minutes after they had arrived there,
three unknown individuals, who were lying in ambush nearby,
suddenly attacked them with the intention of fulfilling their dishonest
motives. After assaulting the two boys and taking them some distance
away, two of the accused committed rape on the informant and
physically tortured another girl Runima Chetry.
Be it mentioned here that the informant is studying in H.S. 1st year.
The other two boys and the girl are also students.
The informant is not acquainted with the said three persons; however,
she will be able to recognize them if she happens to see them.
The lodging of this ejahar was delayed as the informant belatedly
informed her guardian about the incident."
4. All three appellants thereafter faced trial. The recording of evidence
commenced on 31.07.2015, and the judgment was delivered on 16.05.2023,
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whereby all the accused were convicted for offences punishable under Sections
341/323/34 of the IPC. The appellants in Crl. A. No. 294/2023 and Crl. A. No.
221/2023 were also convicted under Sections 376/34 of the IPC, while the
appellant in Crl. A. No. 261/2023 was additionally convicted under Section 354 of
the IPC.
5. It is submitted at the Bar that the appellants in Crl. A. No. 294/2023 and Crl.
A. No. 221/2023 are in custody serving their sentences, whereas the appellant in
Crl. A. No. 261/2023 is on bail.
6. Having convicted the appellants as hereinbefore stated, the following
sentences were imposed upon them respectively. The appellants in Crl. A. No. 294
of 2023 and Crl. A. No. 221 of 2023 were each sentenced to undergo rigorous
imprisonment for 10 years and to pay a fine of Rs. 50,000/-. The appellant in Crl.
A. No. 261 of 2023 was sentenced to undergo rigorous imprisonment for 2 years
and to pay a fine of Rs. 20,000/- for the offence punishable under Section 354 of
the IPC. All three appellants were further sentenced to undergo rigorous
imprisonment for 6 months each, for the offence punishable under Sections 323/34
of the IPC and to undergo rigorous imprisonment for 15 days each for the offence
punishable under Sections 341/34 of the IPC. All the sentences were directed to
run concurrently.
7. The learned counsel for the appellants submits that during the trial, the trial
court committed a grave error while conducting the examination of the accused
under Section 313 of the CrPC. Drawing attention to the manner in which the
appellants were examined after the prosecution evidence was closed, learned
counsel submitted that each of the accused was confronted with the entire
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evidence of each of the prosecution witnesses at one go and asked to explain the
circumstances.
8. It is contended that such a course is not in accordance with the procedure
prescribed under Section 313 of the CrPC. By putting the entire evidence of each
prosecution witness without breaking it into distinct incriminating circumstances,
the accused were deprived of a fair opportunity to offer their explanations to the
evidence led by the prosecution.
9. In support of the aforesaid submission, learned counsel for the appellants
has placed reliance on the judgment in Gobind Singhal S/o Shri Radheshyam
Singhal vs. State of Assam and Another, reported in (2022) 2 GLT 790,
wherein the relevant principles have been discussed in paragraphs 42 to 49. For
ready reference, the said paragraphs are reproduced herein below:
"42. In the case of Paramjeet Singh vs. State Uttarakhand reported in
(2010) 10 SCC 439 the Supreme Court, while elaborating on the
importance of the statement of the accused under section 313 of the
Cr.P.C, has observed that section 313 CrPC is based on the fundamental
principle of fairness. The attention of the accused must be specifically
brought to the inculpatory piece of evidence so as to give him an
opportunity to offer an explanation if he chooses to do so. Therefore, the
court would be under a legal obligation to put the incriminating
circumstances to the accused and solicit his response. The provision is
mandatory in nature and casts an imperative duty upon the court and
confers a corresponding right on the accused to have an opportunity to
offer an explanation for such incriminatory materials appearing against
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him.
43. Taking note of the law declared in Paramjeet Singh (supra) and several
decisions governing the issue, the Hon'ble Supreme Court, in Nar Singh vs.
State of Haryana reported in (2015) 1 SCC 496, has re-examined the
scope and ambit of Section 313 of the Cr.P.C. and held that section 313 (1)
(b) of CrPC aims at bringing the substance of the accusation to the
accused so as to enable him to explain every circumstance appearing in
the evidence against him and as such, the provision is mandatory and
casts a duty upon the court to offer an opportunity to the accused to
explain every incriminating evidence available against him. Having held as
above, it has also been clarified that, whether a trial has been vitiated or
not due to noncompliance of section 313 CrPC would depend on the
degree of error or violation and the accused must show that such non-
compliance has materially prejudiced him or is likely to cause prejudice to
him. Having observed as above, the Apex Court, has laid down the
following guiding principles to be followed by the courts which are
reproduced herein below :-
"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 summarized 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
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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 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."
44. In Nar Singh (supra) the Apex court had agreed with the stand of the
appellant/ accused on the issue of non-compliance of the mandatory
provisions of section 313 CrPC and has held that omission to put every
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material circumstance to the accused did not ipso facto vitiate the trial nor
was the accused entitled to acquittal on the ground of such non-
compliance but the matter could be sent for retrial. Accordingly, the case
was remitted back to the trial court, after setting aside the conviction of
the accused, with a direction to proceed afresh from the stage of
recording the statement of the accused under section 313 CrPC. While
examining the accused, the trial court was also directed to marshal the
evidence on record and put specific and separate questions to the accused
with regard to the incriminating circumstances and also to offer him an
opportunity to examine defense witnesses, if so advised.
45. Similar view has been expressed by the Apex Court in another decision
in the case of Reena Hazarika vs. State of Assam reported in AIR 2018 SC
5361 wherein, the following observations have been made in paragraph 16
which are quoted herein below :-
"16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram
partem. It confers a valuable right upon an accused to establish his
innocence and can well be considered beyond a statutory right as a
constitutional right to a fair trial under Article 21 of the Constitution, even
if it is not to be considered as a piece of substantive evidence, nor being
on oath under Section 313(2), Cr.P.C. The importance of this right has
been considered time and again by this court, but it yet remains to be
applied in practice as we shall seen presently in the discussion to follow. If
the accused takes a defence after the prosecution evidence is closed,
under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section
313(4) Cr.P.C. to consider the same. The mere use of the word 'may'
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cannot be held to confer a discretionary power on the court to consider or
not to consider such defence, since it constitutes a valuable right of an
accused for access to justice, and the likelihood of the prejudice that may
be caused thereby. Whether the defence is acceptable or not and whether
it is compatible or incompatible with the evidence available is an entirely
different matter. If there has been no consideration at all of the defence
taken under Section 313 Cr.P.C., in the given facts of a case, the conviction
may well stand vitiated. To our mind, a solemn duty is cast on the court in
dispensation of justice to adequately consider the defence of the accused
taken under Section 313 Cr.P.C. and to either accept or reject the same for
reasons specified in writing."
46. What crystallizes from the above decisions of the Apex Court is that
the provision of section 313 CrPC is mandatory in nature and the same
also confers a right upon the accused to offer explanation in respect of
each of the incriminating evidence available against him, if so desired.
Therefore, the failure on the part of the trial judge to comply with section
313 CrPC may vitiate the trial if prejudice can be shown to have been
caused or likely to be caused to the accused.
47. Following the principles laid down in the case of Nar Singh (supra),
this court, in a recent decision rendered in the case of Md. Sahid Khan vs.
State of Assam [2021 0 Supreme (Gau) 557] had taken note of the failure
on the part of the trial court to put all the incriminating materials to the
accused which were relied upon so as to convict him and on being
satisfied that prejudice had been caused to the accused on account of
such non-compliance, set aside the conviction and remitted the matter to
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the trial court for re-trial from the stage of recording the statement of the
accused under section 313 CrPC with a direction to the learned court
below to frame specific questions on each incriminating circumstances and
to offer an opportunity to the accused to explain his stand.
48. It is to be borne in mind that the purpose of section 313 CrPC is to
afford a fair opportunity to the accused so as to offer explanation with
regard to each incriminating evidence available against him. During
examination of the accused under section 313 CrPC, the questions are put
to the accused orally. Therefore, the trial court should avoid posing long
and arduous queries to the accused and instead bring to his notice, in a
concise form only the incriminating evidence available on record against
him. If the questions put to accused turns out to be very long and
arduous, containing voluminous details or if the same is put in the form of
interrogatories, then the accused would naturally not be in a position to
understand the actual incriminating circumstances available against him
and may even fail to comprehend the questions in the proper perspective
so as to offer an explanation, in which event, the accused would
undoubtedly suffer prejudice. Therefore, it would be the duty of the trial
court to put the substance of all the incriminating circumstances to the
accused by framing specific and separate question on each incriminating
evidence brought on record against him and give an opportunity to the
accused to offer explanation.
49. In the present case, having regard to the manner in which the
incriminating circumstances were brought to the notice of the accused (A-
1) while recording his statements under section 313 CrPC, we are
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convinced that the accused did not get a proper opportunity to respond to
all the incriminating evidence available against him in a proper manner.
The learned trial Judge was not correct in putting such long and
voluminous questions to the accused pertaining to the incriminating
circumstances. We also find that some of the incriminating evidences were
put to the accused in the form of interrogatories, hinting at some form of
predisposition on the part of the trial Judge against the accused. The
learned court below had also failed to put all the incriminating
circumstances to the accused which were eventually relied upon for his
conviction. We are, therefore, of the opinion that there was noncompliance
of the mandatory provision of section 313 CrPC. Going by the nature and
degree of non-compliance, as noticed above, there can hardly be any
doubt about the fact that prejudice to the accused was inherent, having a
vitiating effect on the trial. We, therefore, find sufficient force in the
submission of the learned counsel for the appellant that a fair trial was
denied to his client."
10. The learned counsel for the appellants submits that, as per the findings of
the Division Bench of this Court, the trial court ought to avoid posing long and
complex questions to the accused and instead bring to their notice, in a concise
form, only the incriminating evidence available on record.
11. It has further been held that it is the duty of the learned trial court to put the
substance of all incriminating circumstances to the accused by framing specific and
separate questions on each such circumstance brought on record, thereby
affording the accused a fair opportunity to offer an explanation.
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12. The learned counsel for the appellants has also placed reliance on Nar
Singh vs. State of Haryana, reported in (2015) 1 SCC 496, wherein at
paragraph 30, the Hon'ble Supreme Court has laid down the relevant principles.
Further reliance has been placed on Rajkumar @ Suman vs. State (NCT of
Delhi), reported in (2023) 17 SCC 95, to contend that unless the material
circumstances forming the basis of the prosecution case are put to the accused in
the form of concise questions, prejudice would be caused to the defence.
13. It is argued that the specific case of the defence, as reflected in the cross-
examination of the prosecution witnesses as well as the evidence of the defence
witness, was that there were material irregularities in the prosecution case,
inasmuch as a false story had been projected in the FIR and subsequently sought
to be proved through the charge-sheet.
14. The learned counsel submits that the consistent stand of the defence has
been that, the appellants were not involved in the alleged incident; rather, the
persons accompanying the alleged victims had committed the offence and were
subsequently detained by the family members and co-villagers of the victims. It is
further submitted that only after a compromise was arrived at between the alleged
victims and the actual perpetrators, that the FIR was lodged, falsely implicating the
present appellants.
15. It is further contended that by putting long and composite questions to the
accused without specifying the exact incriminating evidence against them, the
appellants were deprived of a meaningful opportunity to furnish proper
explanations to each circumstance.
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16. According to learned counsel, this aspect assumes significance as the
defence of the appellants has been rejected by the learned Trial Court primarily on
the ground that they failed to offer any explanation during their examination under
Section 313 of the CrPC. In this regard, reference has been made to paragraph 51
of the impugned judgment, wherein it has been observed that during the
examination under Section 313 of the CrPC, the accused persons merely denied the
incriminating material put to them. Para 51 is quoted below for case reference:
"It is important to note here that during the examination of the
accused persons u/s-313 of Cr.P.C., when the incriminating materials
appearing in the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 were put to
them, they simply denied the same. However, they did not narrate any
incident which the defence tries to project through the defence
witnesses."
17. Ms. S. H. Bora, learned APP for the State, submits that the appellants were
afforded an opportunity to explain the circumstances appearing against them
during their examination under Section 313 of the CrPC, and having failed to do so,
there is no illegality or irregularity in the judgment and order dated 16.05.2023,
passed by the learned Trial Court holding the appellants guilty of the offences.
18. However, learned APP fairly submits that the examination of the accused
under Section 313 of the CrPC in the present case does not appear to be in strict
compliance with the law laid down by the Hon'ble Supreme Court, inasmuch as
specific questions were not put to the accused. It is apparent that the entire
evidence of each of the prosecution witnesses was put to the accused in a
composite form, calling upon them to explain the circumstances.
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19. The learned APP further submits that even if it is held that the accused have
suffered prejudice on account of not being afforded an adequate opportunity to
defend themselves during their examination under Section 313 of the CrPC, the
appropriate relief would be to remand the matter for re-trial from the stage of
recording the statements of the accused under Section 313 of the CrPC.
20. This Court has considered the submissions made at the Bar, perused the
impugned judgment, and also examined the records made available in the paper
book in the present set of criminal appeals.
21. It is a settled position of law that when an accused is called upon to offer an
explanation to the evidence led against him by the prosecution, he must be made
aware of each incriminating circumstance, so as to afford him a fair opportunity to
explain the same. The accused also has the right to present his defence and offer
his explanation with respect to the evidence brought on record against him.
22. It is not the case of the State that the questions put to the accused were
concise so as to place only the incriminating circumstances appearing against
them. A perusal of the record of the learned Trial Court pertaining to the
examination of the accused under Section 313 of the CrPC reveals that the
questions were lengthy, complex, and contained voluminous details, rather than
being framed in the form of specific interrogatories.
23. In Govind Singhal (supra), this Court had found fault with the manner in
which the examination of the accused under Section 313 of the CrPC was
conducted. Upon examining the nature of the questions put to the accused in the
said case, this Court finds no substantial difference in the manner in which the
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statements were recorded therein and the manner in which the examination under
Section 313 of the CrPC has been conducted in the present case.
24. Since the appellants have been able to demonstrate the prejudice caused to
them on account of their inability to effectively put forth their explanations during
their examination under Section 313 of the CrPC, and upon a careful consideration
of the evidence on record, more particularly the cross-examination of the
prosecution witnesses as well as the defence evidence, this Court is of the view
that the learned Trial Court committed an error in observing that the appellants
had failed to explain the incriminating circumstances appearing in the evidence of
PW-1, PW-2, and PW-3.
25. In view of the above findings, this Court is of the considered opinion that the
present case warrants a remand to the learned Trial Court for a re-trial from the
stage of recording the statements of the accused, namely, Simanta Boruah, Prafulla
Rabha, and Utpal Ray @ Utpal Ch. Ray @ Namal Ray, under Section 313 of the
CrPC.
26. As held in Govind Singhal (supra), this Court deems it appropriate to
remand the case to the learned Trial Court. While doing so, the learned Sessions
Judge shall reframe and put specific and separate questions to each of the accused
with respect to every incriminating circumstance appearing in the evidence against
them, and thereafter proceed to decide the case on merits in accordance with law,
without being influenced by any observations made in this order.
27. Considering that the occurrence took place in the year 2013, and in order to
ensure expeditious justice, the learned Trial Court shall make an endeavour to
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conclude the trial as expeditiously as possible, preferably within a period of six
months from the date of receipt of the records, if necessary,by conducting the trial
on a day-to-day basis.
28. Having regard to the fact that the examination of the accused under Section
313 of the CrPC was not conducted in accordance with law, this Court refrains from
adjudicating the appeals on merits. It is in this view of the matter that the case is
remanded to the learned Trial Court to bring the proceedings to their logical
conclusion at the earliest.
29. Accused Nos. 1 and 2, who are stated to be in custody since 18.05.2023, are
directed to be released on bail by the learned Trial Court on such terms and
conditions as may be deemed appropriate to ensure their participation in the re-
trial. This privilege of bail is granted, inter alia, on the submission of learned
counsel for the appellants that they had remained on bail during the trial till the
date of conviction without default.
30. Although the learned APP has objected to the grant of bail, this Court is of
the opinion that, considering the fact that the appellants had sin the trial, had
surrendered after conviction, and have undergone a part of the sentence, they are
entitled to be released on bail during the pendency of the re-trial proceedings.
31. Insofar as the appellant in Crl. A. No. 261/2023, namely, Utpal Ray @ Utpal
Ch. Ray @ Namal Ray, is concerned, it is submitted that he has been on bail during
the pendency of the appeal. Accordingly, he shall continue to remain on bail till the
conclusion of the retrial.
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32. Records received, if any, be returned forthwith.
33. Appellants at liberty to produce certified copies of the order to pray for
release on bail.
34. The criminal appeals stand disposed of.
JUDGE
Comparing Assistant
