The Meghalaya High Court recently in the case of Shri. Alphon Khardewsaw  v. State of Meghalaya comprising of a bench of Hon’ble Mr. Justice Ranjit More, and Hon’ble Mr. Justice W.Diengdoh, observed 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.

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.

As per section 313 of CrPC, accused is examined any stage of proceedings

and shall after completion of evidence of prosecution.

Section 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—
    1. may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
    2. 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 had committed.

Facts Of the case:

In the present case the appellant was convicted under sec 302 of IPC by the District Council Court. Khasi Hills, Shillong.

The prosecution case in short is that on the night of 20-07-1985, the accused persons namely, Shri. Alphon Khardewsaw (present appellant) and Shri. Siren Marshiangbai of Tiriang had assaulted the deceased namely, U Drikshon Khardewsaw at Rwiang on the PWD main road 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.

Contentions of the Parties:

The Learned counsel appearing for the appellant contended that the deposition of witnesses, especially the alleged eyewitnesses, that is, PW-2, PW-3, PW-4 and PW-5 and submitted that there are inherent contradictions.

He further submitted that though the prosecution in the Charge-sheet named 13(thirteen) witnesses to establish their case against the appellant, only 8(eight) witnesses were examined. He stated that since the prosecution has not examined the Investigating Officer and the Doctor who conducted the autopsy on the deceased, the contradiction could not be brought on record and therefore, great prejudice is caused to the appellant/accused. It was also submitted that in the absence of medical evidence of the Doctor, prosecution failed to prove that the death of the deceased was homicidal.

Mr. Gautam further invited the court’s attention to the statement of the appellant/accused under Section 313 CrPC and submitted that same is recorded in a perfunctory mannerand thereby great prejudice is caused to the appellant/accused. In above circumstances, he submitted that benefit of doubt has to be given to the appellant and impugned judgment and order may be quashed and set aside. In order to support his submission, he relied upon the decision of the Apex Court in Bahadur Naik v. State of Bihar (2000) 9 SCC 153, the decision of the Division Bench of High Court of Jharkhand in Manik Singh & Anr. v. State of Jharkhand, 2019 SCC Online Jhar 244, the decision of the Apex Court in Samsul Haque v. State of Assam, 2019 SCC Online SC 1093and Nar Sing v.State of Haryana (2015) 1 SCC 496.

On the other hand, counsel appearing for Respondent opposed this appeal vehemently and submitted that evidence of the eye witnesses, that is PW-2, PW-3, PW-4 and PW-5 has fully supported the prosecution case as to the occurrence, as such, in spite of the fact that the Doctor and the Investigation Officer could not be examined, the appellant has been rightly tried and sentenced by the court below and no prejudice has been caused to the defence due to non-examination of these witnesses. In this regard, he relied upon the decision of the Apex Court in Dayal Singh & Ors. v. State of Uttaranchal (2012) 8 SCC 263and Bahadur Naik v. State of Bihar(supra). The counsel heavily relied upon the decision of the Apex Court in Dayal Singh (supra) to contend that non-examination of the Doctor in the present case is not fatal to the prosecution case. This decision however, is not applicable since in the present case, the prosecution failed to examine not only the Doctor but the Investigating officer.

Court Observation and Judgment:

Observations:

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.

Judgment:

In the above circumstances, the court 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 is directed to be released forthwith if not required in any other case.

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