JUDGMENT
I.A. Ansari, J.
1. This criminal appeal is directed against the judgment and order, dated 1.6.2004, passed by the learned Addl. Dy. Commissioner, Champphai District, Champhai, in G.R. Case No. 323 of 2003, convicting the accused-appellant under Section 307 I.P.C. and sentencing him to suffer R.I. for a period of 10 years.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows:
On 24.12.2003 at about 2 p.m., the accused-appellant came home at Hermon Veng, Khawzawl in intoxicated condition. Seeing his father, Zatinduna, sitting at the veranda of their house, the accused-appellant felt angry, for, his parents had not been giving him money despite demands raised by him. So enraged, the accused-appellant broke three tiles of the wall and on hearing the commission, when his father came and tried to stop him, the accused-appellant threw his father on the floor of the house, caught hold of his neck and started strangulating him. Hearing, however, the hue and cry raised by Zatinduna, their neighbours arrived and rescued him. The accused-appellant’s father, Zatinduna, lodged an FIR on 24.12.2003 at 4.30 p.m. with Khawzawl P.S. and a case was, accordingly, registered against the accused under Section 307 I.P.C. On completion of the investigation, the police laid charge sheet against the accused-appellant under Section 307 I.P.C.
3. During trial, the accused appellant pleaded not guilty to the charge framed against him under Section 307 I.P.C. In support of their case, prosecution examined two witnesses, namely, the parents of the accused-appellant and, thereafter, the learned trial Court, having found the accused-appellant guilty of the offence charged with, convicted him accordingly and passed sentence against him as already indicated hereinabove. Hence, the present appeal.
4. We have heard Mr. A.R. Malhotra, learned Counsel, as Amicus Curiae, and Ms. Dinario, learned Public Prosecutor, Mizoram, for the respondent.
5. While considering the present appeal, what is pertinent to note is that the learned trial Court did not, as has been pointed out by the learned Counsel for the parties appearing before us, frame formally any charge under Section 307 I.P.C. and could not have, therefore, read over and explained the contents of the charge to the accused-appellant, though an order, as the record reflects, appears to have been passed in this regard on 30.4.2004. The passing of this Order and yet not actually framing of the charge against the accused-appellant reveals either complete lack of attention or complete lack of knowledge of the learned trial Court that in terms of the order, which it had passed on 30.4.2004, it ought to have formally framed a charge under Section 307 I.P.C. against the accused-appellant and the same ought to have been read over and explained the same to the accused-appellant in the language in which the accused-appellant could have understood and it was then that the accused ought to have been asked if he pleaded guilty or not guilty to the charge so framed. Since the accused-appellant has not expressed any grievance, in this regard, we infer that no prejudice has been caused to the accused-appellant for the omission to formally frame a charge against the accused-appellant under Section 307 IPC. We would have had, therefore, proceeded to dispose of this appeal on merit but for the reasons, which we indicate hereinbelow.
6. We are amazed to note that the learned trial court has not examined at all the accused in terms of Section 313 of the Code of Criminal Procedure (in short, the ‘Code’). What needs to be noted is that the spirit of the Code is applicable to the State of Mizoram and in terms of Section 313 of the Code, the trial Court shall, particularly, in a sessions case, (after the prosecution case : stands closed) examine the accused for the purpose of enabling the accused to explain every incriminating circumstance appearing in the evidence against him and shall allow him to make any statement, which the accused wishes to make. The accused is then, required to be given, if he so wishes, opportunity of adducing evidence.
7. In the case at hand, as we have already indicated above, the learned Court did not examine the accused-appellant on the incriminating pieces of evidence, which transpires against the accused-appellant, and the circumstances on which the learned trial Court relied upon to found conviction of the accused-appellant.
8. It is, now, settled beyond dispute by a catena of judicial pronouncements that every circumstance, on which a trial Court relies to hold an accused guilty, must be put to the accused person and his answer sought thereto. The very purpose of Section 313 Cr.P.C. will stand defeated if a trial Court, without affording any opportunity to the accused of explaining the circumstances, which appear to the trial Court to be incriminating in nature, bases its convictions on such circumstances. It is in this view of the matter that the examination of an accused person under Section 313 Cr.P.C. is a solemn act of a trial Court and it cannot, and must not, be treated as an empty formality.
9. We may refer, at this stage, to the case of Sharad Birdhi Chand Sarda v. State of Maharashtra AIR 1984 SC 1662, therein their lordships have succinctly laid down the law on the above subject as follows:
As these circumstances were not put to the appellants in their statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellants did not have any chance to explain them. This has been consistently held by this Court as far back as 1953, wherein the case of Hata Singh Bhagar v. State of Madhya Bharat this Court held that any circumstances in respect of which an accused was not examined under Section 342 of the Cr.P.C., cannot be used against him. Ever since this decision there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Cr.P.C., the same cannot be used against him…It is not necessary for us to multiply authorities on this point as this question now stands concluded lay several decisions of this Court in this view of the matter the circumstances, which were not put to the appellant in his examination under Section 313 Cr.P.C. have to be completely excluded from consideration.
10. Even in the case of State of Maharashtra v. Sukhdeo Singh and Anr. their lordships have observed as follows:
The trial Judge is not expected, before he examined the accused under Section 313 of the Code, to sift the evidence regarding any incriminating material to determine whether or not to examine the accused as that material. To do so, would be prejudice the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak of scanty prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon.
11. In the case at hand, the incriminating circumstances spoken to by each prosecution witness, on which the learned trial Court has relied upon ought to have been put to the accused-appellant and his answer sought thereto; but the same having not been done, learned trial Court ‘ ought not to have based its findings on such incriminating pieces of evidence.
12. Situated thus, one has no option, but to conclude that if the accused-appellant is not examined in terms of Section 313(1)(b) of the Code as warranted by law, it will deny to the accused-appellant a valuable right vested in him by law to properly and effectively project his defence. At the same time, prosecution, to our mind, cannot be made to suffer solely for the lapse on the part of the learned trial Court in properly examining the accused-appellant under Section 313(1)(b) of the Cr.P.C. We are, therefore, clearly of the view that this case needs to be remanded to the learned trial Court.
13. Ordinarily, we would have re-appreciated the entire evidence on record to arrive at legally correct findings ; but in the instant case, as we have found that before the evidence on record is re-appreciated in this appeal, the accused-appellant be examined under Section 313(1)(b) of the Cr.P.C. in accordance with the requirements of law contained in that behalf and that for this purpose, the case needs to be remanded d back to the learned Court below, we do not wish to ‘enter into the merit of the various grounds on which the conviction of the accused-appellant has been impugned in this appeal. We, in fact, do not even remotely wish to make any observation about the evidence on record so that the learned trial Court does not get fettered by any of the observation of e this Court on any piece of evidence on record and it may feel free to come to its own independent findings after appropriate examination of the accused-appellant.
14. In the result, the appeal, for the treasons indicated above, succeeds. The impugned judgment and Order shall stand set aside and the case is remanded to the learned Court below with direction to frame a charge as indicated hereinabove, examine the accused-appellant in terms of the requirements of Section 313 Cr.P.C. and, then dispose of the case in accordance with law by providing the accused-appellant to adduce, if he so wishes evidence in his/defence.