TaxTMI 
TaxTMI 
2008 (7) TMI 1081
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....t about 8.00 p.m. an FIR was lodged by one Abbash Ali (PW-1) before the Officer-in-Charge, Bharalumukh Police Station mentioning therein that about 9.30 a.m. on that day the accused Asraf Ali assaulted Khairul Hoque, son of Nazim Ali with a piece of wood as a result of which said Khairul Hoque (hereinafter referred to as the `deceased') sustained injuries on his head. The injured was removed to the Gauhati Medical College Hospital where he succumbed to injuries at about 5.30 p.m. Police registered a case and after completion of the investigation submitted charge sheet under Section 302 IPC. On committal, learned trial Court framed charges under Section 302 IPC. During the trial prosecution examined 10 witnesses including the doctor and the Investigation Officer. Accused also examined 3 witnesses to substantiate its plea of innocence. P.W.1 is the informant who reported about the incident and attended Gauhati Medical College Hospital. He was present during the inquest. PW-2 Md. Nurul Islam deposed that he was not in Gauhati and when he was contacted by police he informed the police that he knew both accused and deceased. Police took his help to identify the accused but accused c....
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....s with black silk. After removal of the stitches the gap is 0.6 cm wide and is bone deep. Injury No. 2- Lacerated injury in the scalp 5 cm x 0.5 cm in the left temporal region - transversely placed and slightly carving upwards to the parietal region and bone deep. No ligature mark on the neck on dissection, next tissues are healthy. Cranium and Spinal Canal: Scalp- As described in injury No. 1 and injury No. 2 clotted blood present underneath the whole of the scalp except in the frontal region. Skull- Featured fracture of the skull 16 cm long involving the frontal and right parietal bone extending from above the right orbit backwards and posteriority and ending in the landoid suceer.... 4. According to the doctor the cause of death was due to coma resulting from head injury. The injuries were ante- mortem and caused by blunt weapon and consistent to be homicidal in nature. PW-8 is Mozafar Hussain, who at the relevant time was clearing the jungle of the well of his rented house at Santipur and at that time he saw Khairul run past behind him. He saw accused Asraf Ali going five feet behind him. He saw and found Khairul lying on the road some 25 yards awa....
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....sed person under Section 313 of the Code is to provide an opportunity to the accused of explaining the circumstances that appear against him in evidence. It was further noted that the evidence against the accused consisted of circumstantial evidence only and the circumstances should have been brought to his notice and his explanation called for. It was noted that the trial Court faltered in its duty in the examination. But the High Court felt that no material prejudice was caused to the accused and the accused was found to be absconding for long time and rancorous relationship between the deceased and the accused was established. However, the High Court found that the proper conviction would be under Section 304 Part II IPC. 7. Learned Counsel for the appellant submitted that the true purpose and import of Section 313 of the Code has not been kept in view by the High Court. It is pointed out that none of the witnesses were really eye witnesses. But the Court proceeded on the basis as some persons had seen the incidence. 8. Learned Counsel for the respondent on the other hand submitted that the questions though broadly formulated covered the basic features. 9. Section 313 o....
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....ion as the section remained in the original form under the Old Code, a three-Judge Bench of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat AIR1953SC468 that: The statements of the accused recorded by the Committing 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. 12. In Sharad Birdhichand Sarda v. State of Maharashtra 1984CriLJ1738 it was inter-alia noted as follows: 143- Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Mad....
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....ee- Judge Bench of this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973CriLJ1783 as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three- Judge Bench made the following observations therein: (SCC p. 806, para 16) It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for ....