The Meghalaya High Court recently comprising of a bench of Justices Ranjit More, and W.Diengdoh, observed that circumstances that were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration. (Shri. Alphon Khardewsaw v. State of Meghalaya)
The court observed that it was the duty of the court to bring the substance of accusation to the appellant/accused to enable him to explain each and every circumstance appearing in the evidence against him. The provision of Section 313 CrPC is not only mandatory but it cast a duty upon the court to afford an opportunity to the appellant to explain each and every circumstance and incriminating evidence against him.
The Court further observed that the provision of Section 313 CrPC is not only mandatory but it cast a duty upon the court to afford an opportunity to the appellant or accused.
Facts Of the case:
The accused had assaulted the deceased with a hammer, stones and an iron chain causing multiple fractured wounds on the head of the deceased and as a result, the deceased died on the spot instantaneously. The family members of the deceased on hearing the hue and cry of the deceased rushed to the spot while the accused persons fled away from the spot. During the investigation, it was found that a prima facie case under Section 302 r/w 34 IPC has well been established against both the accused and hence Charge-sheet under Section 302 IPC was filed.
Contention of the Parties
Mr. K.C.Gautam, the counsel for the accused contended that the fact that the doctor who performed the medical examination of the body could not be examined meant that the prosecution could not even establish the homicidal nature of the death of the victim. The counsel further stated that the contradictions of the prosecution witnesses were not brought on record and the accused’s statements under Section 313 of CrPc was recorded in a perfunctory manner, all of which caused great prejudice to the accused.
Mr. K.Khan, the Senior Public Prosecutor opposed the appeal and said that there were no inconsistencies in the witness testimonies and the non-examination of the doctor was not fatal to the case, relying on Dayal Singh & Ors. v. State of Uttaranchal (2012) 8 SCC 263. The bench dismissed these arguments, stating that in the present scenario, both the investigating officer and the doctor were not examined, and thus great prejudice was caused to the accused. To this, the prosecutor contended that in such a case, an appeal ought to be remanded back to the trial court.
Court Observation and Judgment:
The court relied on the Apex court judgment given in the Nar Singh Case and Samsul Haque case that it was the duty of the court to bring the substance of accusation to the appellant/accused to enable him to explain each and every circumstance appearing in the evidence against him. The provision sec 313 CrPC is not only mandatory but it cast a duty upon the court to afford an opportunity to the appellant to explain each and every circumstance and incriminating evidence against him. The court observed that it is established principle of law that where there is a perfunctory examination under Section 313 CrPC, the matter is capable of being remitted to the trial court from the stage at which prosecution was closed.
In the present case, examination under Section 313 CrPC of the appellant/accused was not only perfunctory but the prosecution also failed to examine the Investigating Officer and the Doctor. On that count also, great prejudice is caused to the appellant/accused. Coupled with this fact, we also must consider the inordinate delay in the trial of the appellant/accused. Though the charge-sheet was submitted in the year 1985, appellant/accused was convicted by impugned judgment and order dated 22-02-2018. Thus, the trial remained pending for 33 years.
The court in the above circumstances, was of the view that the appellant/accused could not have been convicted and sentenced by the trial court. Rather, the appellant/accused is entitled to be given the benefit of the doubt. As such, the impugned judgment of conviction and sentence passed by the court below cannot be sustained in the eyes of law and the same is quashed and set aside. The appeal was accordingly allowed.
The appellant/accused was directed to be released forthwith if not required in any other case.
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