CRL.A(J) - Gauhati High Court

THE GAUHATI HIGH COURT
(High Court of Assam Nagaland Meghalaya Manipur Tripura
Mizoram and Arunachal Pradesh)
CRIMINAL APPEAL (J) No 82 OF 2006
The 17th day of March, 2011
P R E S E N T
THE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR
THE HON’BLE MR JUSTICE A K GOSWAMI
Appellant:
By Advocate:
Respondent:
By Advocate:
Shri Gopal Goraik,
Son of late Mangal Goraik,
resident of Dakhinhengra Tea Estate,
P S- Golaghat, District- Golaghat, Assam.
Mr PK Deka, Amicus Curiae
The State of Assam
Mr Z Kamar, PP, Assam.
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 3rd
DAY OF MARCH, 2011, THE COURT PASSED THE FOLLOWING-
(Goswami, J)
JUDGMENT
Criminal Appeal No 82/2006
This appeal is directed against the judgment and order dated
16.6.2006 passed by the learned Sessions Judge, Golaghat, in
Sessions Case No 50/2005, convicting the accused appellant
under section 302 IPC and sentencing him to suffer imprisonment
for life and to pay fine of `. 5,000.00, in default, rigorous

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imprisonment for one year, for committing the offence of murder by
intentionally causing death of one Haren Goraik.
2. We have heard Mr P K Deka, learned Amicus Curiae and Mr
Z Kamar, learned PP, Assam.
3. Smt. Sumitra Goraik, wife of the deceased Haren Goraik,
had filed an ejahar before the Officer-in-Charge, Kamarbandha
Police Station on 11/1/2005, stating therein that on 10/1/2005,
at about 4:30 PM, the accused appellant, Gopal Goraik @ Bubai,
hacked her husband with a “Kalam Katari” (pruning knife), at the
office premises of the tea estate while he was on duty. Her
husband suffered serious injuries and accordingly, he was shifted
to the Golaghat Civil Hospital by the garden authorities. However,
he had succumbed to his injuries at 6:30 PM on the very day. On
the basis of the ejahar, Golaghat Police Station Case No 25/2005
under section 302 IPC was registered.
4. The investigation was started and finding sufficient materials
against the accused appellant, charge sheet was submitted under
section 302 IPC. As the case was exclusively triable by the Court of
Sessions, the case was committed by the learned Magistrate to the
Court of the learned Sessions Judge, Golaghat.
5. The learned trial Court framed charge under section 302
IPC. Charges having been read over to the accused appellant, he
pleaded not guilty and claim to be tried.
6. During the trial prosecution examined 14 witnesses. Defence
adduced no evidence. PW-1, the wife, is a reported witness. PW-2,
who is the president of the Labour Sangha of Dakhin Bhangra Tea
Estate, where the deceased was working, also did not witness the
incident. He was, however, a witness to the inquest report, Ext- 1.

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7. PW-3 is also an employee in the tea garden. He saw the
deceased (then injured), when he was in the process of being
shifted to a vehicle, for the purpose of taking him to Golaghat Civil
Hospital. According to him, the deceased was not in a position to
speak. He was also a witness to Ext-1.
8. PWs-4, 5, 6, 9 and 10 claimed to be eye witnesses of
incident of accused appellant hitting / cutting the deceased with a
pruning knife and they gave their versions of the incident. PW 7
was a reported witness and he did not contribute anything towards
furthering the prosecution case.
9. PW-8 is the doctor who had conducted post mortem
examination on the dead body of Haren Goraik.
10. PW- 11, 12 and 13 were witnesses to the seizure list, Ext- 2,
by which one pruning knife stained with blood, was seized, when
the same was produced by the accused from the backside of the
house of PW 12.
11. PW 14 is the Investigating Officer. In his deposition, he
stated that the accused surrendered on 13.1.05 at about 3.00 PM
and on interrogation, he had stated that he had cut one Haren
Goraik with a pruning knife and had kept the weapon used in the
assault in the house of PW- 12. He had also stated that the police
was led by the accused appellant to the house of PW- 12 and on
being asked by the accused, PW- 12 had produced the pruning
knife, M. Ext-1.
12. The learned trial Court relied on the evidence of PWs- 4, 5, 6,
9, 10, 11, 12 and 13 as eye witnesses and took a view that the
defence could not discredit their testimony. It is to be noted that
PWs- 11, 12 and 13 were not eye witnesses but were witnesses to
the seizure list, Ext-2. The learned trial Court also appears to have

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accepted the version of the prosecution with regard to the recovery
of the M. Ext- 1, pruning knife, at the instance of the accused
appellant. The learned trial Court, after examination of the accused
under Section 313 CrPC, took the view that the prosecution had
been able to establish the guilt of the accused appellant beyond
reasonable doubt and accordingly, convicted him for committing
offence of murder under section 302 IPC.
13. Learned Amicus Curiae, after outlying the prosecution case,
in brief, had drawn our attention to the examination of the accused
under section 313 CrPC. According to him, the learned trial Court
without any application of mind mechanically put certain
questions to the accused appellant and such questions leave a lot
to be desired. He further submits that the learned trial Court
appeared to have been totally oblivious of the purpose for which
section 313 CrPC finds place in the statute. He submits that
cursory nature of examination has deprived the accused appellant
the opportunity of explaining the circumstances appearing against
him, warranting setting aside of the order of conviction of the
accused appellant and a direction to the learned trial Court for
disposal of the case afresh after examining the appellant under
section 313 Code of Criminal Procedure, 1973, in accordance with
law. The learned Amicus Curiae has placed reliance on the
following decisions of the Apex Court
(1) Kuldip Singh and others Vs State of Delhi, reported in
(2003) 12 SCC 528.
(2) Ajay Singh Vs State of Maharastra, reported in (2007)
12 SCC 341.
(3) Suraj Gupta and others Vs State of Mghalaya, reported
in 2010 (3) GLT 225.
(4) SH Lalsangzuala Vs State of Mizoram, reported in
2011 (1) GLT 47.

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14. In view of the submissions of the learned Amicus Curiae, we
consider it appropriate to reproduce the examination of the
accused appellant, in its entirety.
“Question – Shri Naren Neog, PW - 4 deposed that on
10.1.2005 on hearing hallah, he saw you
are assaulting Horen Goraik with a Kalam
Katari. What do you say
Answer - No. I am innocent.
Question –
Answer -
Question –
PW - 4 further deposed that Shri Sonaram
Bauri with a Belsa hit on your hand
having Kalam Katari and one Natrat
Mahmmad had also assaulted on your
hand with a view to save Horen Goraik.
What do you say
No. I am innocent.
Md Ramjan Ali, PW - 6 deposed that on
10.1.2005 on your hearing hallah, he
came out from the office and saw that you
are assaulting Horen Goraik with a Kalam
Katari and he threw a piece of brick
towards you with a view to save Horen
Goraik. What do you say
Answer - No. I am innocent.
Question –
Whether you state anything about the
occurrence
Answer - No.
Question –
Whether you will adduce any evidence in
your defence
Answer - No.”
15. We have already indicated, albeit, very briefly, the nature of
the evidence appearing against the accused appellant. We are
dismayed by the farcical nature of the examination of the accused
appellant conducted by the learned trial Court . It gives the

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impression that the examination of the accused appellant under
section 313 CrPC was an avoidable ritual and that the same has
no role at all in a criminal trial. The learned trial Court discharged
its responsibility by merely asking a few questions on the basis of
testimony of PWs- 4 and 6 only, without adverting to other
materials on record, on which the learned trial court had placed
reliance.
16. To appreciate the scope and purpose of Section 313 CrPC,
we consider it expedient to quote the section 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 question, 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.”.

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17. It will also be apposite to state that in the earlier Code of
Criminal Procedure, 1898, power to examine an accused was
found in section 342. We also extract section 342 of the earlier
Code hereinbelow:
342. (1) For the purpose of enabling the
accused to explain any circumstances appearing in
the evidence against him, the Court may, at any stage
of any inquiry or trial without previously warning the
accused, put such questions to him as the Court
considers necessary, and shall, for the purpose
aforesaid, question him generally on the case after the
witnesses for the prosecution have been examined and
before he is called on for his defence.
(2) The accused shall not render himself liable to
punishment by refusing to answer such questions, or
by giving false answers to them; but the Court and the
jury (if any) may draw such inference from such
refusal or answers as it thinks just.
(3) 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.
(4) No oath shall be administered to the accused
when he is examined under sub-section (1).”.
18. Comparison of two sections extracted hereinabove would
show that sub-section (1) of the present section 313 corresponds to
section (1) of the old Code. However, sub-section has been rearranged.
The word “personally” has been added after the words
“accused” in the expression “ for the purpose of enabling the
accused to explain any circumstance appearing in the evidence
against him” and the proviso has been newly added. Sub-section
(2) corresponds to sub-section (4) of the old Code. Sub-section (3)
corresponds to sub-section (2) of Old Code. The provision for
drawing inference for the refusal to give answer or to give false
answer appearing in old sub-section (2) has been omitted in the

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present section. Sub-section (4) corresponds to sub-section (3) of
the old Code.
19. The basic purpose of section 313 CrPC as it stands today is
to give an opportunity to the accused to “personally” explain the
circumstances appearing against him in the evidence and that is
why the word “personally” has now found a place in the present
section 313 CrPC. This is significant because his statement can be
taken into consideration in judging his innocence or guilt.
20. In Tara Singh Vs State of Punjab, reported in AIR 1951 SC
441, in the context of section 342 of the earlier Code, the Apex
Court had stated that it cannot stress too strongly the importance
of observing faithfully and fairly the provisions of section 342 of the
Code and it is not sufficient compliance to string together a long
series of facts and ask the accused what he had to say about them.
Bearing in mind the aim and object of the section, which is to
afford a fair and proper opportunity of explaining the
circumstances which appeared against him, logically and
rationally, the questioning must be done in such manner and in
such a form which even an ignorant and illiterate person can
appreciate and understand. Even otherwise, an accused would be
somewhat perturbed when he is facing a charge and, therefore,
fairness demands that each material fact should be put simply
and separately. The Apex Court also noted that every error or
omission to record the statement in that behalf would not
necessarily vitiate a trial because errors of these type fall within
the domain of curable irregularities. The fall out of such omission
or errors in each case depends upon the degree of error and
whether prejudice had been occasioned or is likely to have
occasioned.
21. In Kuldip Singh and others(supra), the Apex Court held
that the question of establishing prejudice does not arise in view of

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the fact that the prosecution seeks to rely upon the incriminating
circumstances to indicate the involvement of the accused.
22. The Apex Court in Basavaraj R Patil and others Vs State of
Karnataka, reported in (2000) 8 SCC 740, had discussed the aims
and object of section 313 of the Code as under:
“( 10 ) Dealing with the position as the Section
remained in the original form under the old Code, a
three Judge Bench of this Court (Fazal Ali, Mahajan
and Bose, JJ.) interpreted the section in Hate Singh
Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC
468 that
"The statements of the accused recorded by
committal Magistrate and the Sessions Judge are
intended in India to take the place of what in England
and in America he would be free to state in his own
way in the witness box; they have to be received in
evidence and treated as evidence and be duly
considered at the trial. "
………………………………………………………………
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“( 20 ) At the same time it should be borne in mind
that the provision is not intended to nail him to any
position, but to comply with the most salutary
principle of natural justice enshrined in the maxim
"audi alteram partem". 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 subsection
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.”.
23. In Ajay Singh (Supra), the Supreme Court, in paragraphs 13
and 14 stated thus :

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“13. The object of examination under this section is to
give the accused an opportunity to explain the case
made against him. This statement can be taken into
consideration in judging his innocence or guilt. Where
there is an onus on the accused to discharge, it
depends on the facts and circumstances of the case if
such statement discharges the onus.
14. The word “generally” in sub-section (1)(b) does not
limit the nature of the questioning to one or more
questions of a general nature relating to the case, but
it means that the question should relate to the whole
case generally and should also be limited to any
particular part or parts of it. The question must be
framed in such a way as to enable the accused to
know what he is to explain, what are the
circumstances which are against him and for which an
explanation is needed. The whole object of the section
is to afford the accused a fair and proper opportunity
of explaining circumstances which appear against him
and that the questions must be fair and must be
couched in a form which an ignorant or illiterate
person will be able to appreciate and understand. A
conviction based on the accused’s failure to explain
what he was never asked to explain is bad in law. The
whole object of enacting Section 313 of the Code was
that the attention of the accused should be drawn to
the specific points in the charge and in the evidence on
which the prosecution claims that the case is made
out against the accused so that he may be able to give
such explanation as he desires to give.
24. In SH Lalsangzuala (supra) and Suraj Gupta (supra), this
Court, for the failure of the learned trial Court to put
incriminating evidence to the accused in his examination under
section 313 CrPC, had set aside the conviction and sentence and
had remanded the case to the learned trial Court for fresh
consideration after examining the accused in accordance with law.
25. In view of what has been stated herein above, we are of the
opinion that the examination of the accused appellant under
section 313 CrPC, in the facts and circumstance of the case, do
not satisfy the requirement of the section. Accordingly, conviction
recorded and sentence awarded are hereby quashed. The matter is

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remanded to the learned trial Court with a direction that the
learned trial Court in accordance with the underlying principles of
section 313 CrPC, shall put all the circumstances appearing
against the accused appellant to him to enable him to explain the
incriminating circumstances and provide him all opportunity to
adduce evidence, if he wishes, in his defence. The learned trial
Court is directed to complete the trial of the case within a period
of 2 months from today. We also quash the statements of the
accused appellant recorded earlier under section 313 CrPC. The
learned trial Court would dispose of the case after hearing the
parties.
26. Before parting with the records, we make it clear that we
have not made any observation touching upon the merits of the
case and the broad feature of the evidence of the prosecution
witnesses, as indicated in the judgment, was, only for the purpose
of bringing to the fore the shortcomings of examination of the
accused under Section 313 CrPC.
27. In the result, the appeal is partly allowed.
28. The trial Court records be sent down forthwith.
gch
JUDGE
CHIEF JUSTICE