JUDGMENT
I.A. Ansari, J.
1. This criminal reference has arisen out of the judgment and order, dated 5.8.2003, passed by the learned Addl. District Magistrate (Judicial), Aizawl, in G.R. Case No. 1 of 1996, convicting the accused Lalninghaka under Section 302 read with Section 34 of the I.P.C. and sentencing him to suffer imprisonment for life.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows :
On 1.1.96 at about 11 p.m., when Laldawnga, accompanied by his wife, Lalhmuaki, was about to reach his home, Vanlalnela (since deceased) who was the younger son of Laldawnga, assaulted Laldawnga at the back of his head. The accused Lalninghaka, who was the elder son of Laldawnga too assaulted his father on the back of his head with a stick and when Laldawnga fell down, Vanlalnela took out a knife, which accused Lalninghaka snatched from his brother and slit the throat of his father, Laldawnga. Thereafter, the said two sons of the deceased Laldawnga with the help of their mother, buried the dead-body of their father within the compound of their house. On the following day, however, accused Vanlalnela went to one Vanthaga, who was a member of the local VCP, and narrated to him the occurrence. Vanthaga, then, sent a written complaint to the Officer-in-Charge, Champhai P.S., through accused Vanlalnela and, on receiving the same, the police registered a case under Section 302 I.P.C. against the said two sons of deceased Laldawnga and his widow. During investigation, police exhumed the said dead-body and held inquest thereon. The accused Lalninghaka made a judicial confession and, on completion of investigation, police laid charge sheet against the both said sons of Laldawnga and their mother, accused Lalhmuaki.
2. During trial, the three accused persons aforementioned pleaded not guilty to the charge framed against them under Section 302 read with Section 34 I.P.C. During the course of the trial, accused Vanlalnela died and the trial proceeded against the remaining two accused persons.
3. In all, prosecution examined 10 witnesses in support of their case. The two accused were, then, examined under Section 313 Cr.P.C. and in their examination aforementioned, the accused denied that they had committed the offence alleged to have been committed by them, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. On finding accused Lalninghaka guilty of the charge framed against him, the learned trial Court convicted him accordingly and passed sentence against him as already mentioned hereinabove. The accused Lalhmuaki was, however, acquitted.
4. We have heard Mr. N. Sailo, learned Public Prosecutor, and Mr. Michael Zothankhuma, learned Counsel, as Amicus Curiae.
5. When we proceed to dispose of the appeal on merit, we, for the reasons indicated herein below, notice that a vital lapse on the part of the learned trial court does not permit us to appreciate the evidence on record effectively.
6. We have carefully perused the examination of the accused-appellant under Section 313 Cr.P.C. by the learned trial Court and we have noticed that the examination of the accused-appellant was most perfunctorily done inasmuch as the learned trial Court relief upon a number of incriminating circumstances, appearing from the evidence on record, against the accused-appellant, but it did not put to the accused-appellant many of the incriminating circumstances appearing against him and upon which the learned trial Court relied to hold the accused-appellant guilty of the charges aforementioned.
7. We may refer, at this stage, to the case of Sharad Birdhi Chand Sarda v. State of Maharashtra AIR 1984 SC 1662 wherein 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.PC, 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.PC, 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 by 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.PC have to be completely excluded from consideration.
8. 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.
9. 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.PC 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 conviction on such circumstances. It is in this view of the matter that the examination of an accused person under Section 313 Cr.PC is a solemn act of a trial Court and it cannot, and must not, be treated as an empty formality.
10. 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.
11. Situated thus, one has no option, but to conclude that if the accused-appellant is not examined in terms of Section 313(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.PC. We are, therefore, clearly of the view that this case needs to be remanded to the learned trial Court.
12. Coupled with the above, we notice that the examination of the accused under Section 313 of the Code of Criminal Procedure was in the form of cross-examination. What needs to be borne in mind is that the examination an accused under Section 313 of the Code cannot be used by the trial Court to examine the accused in such a manner as if he is under cross-examination by the Court. The examination of the accused under Section 313 of the Code is not really his interrogation ; rather, the object is to provide an effective opportunity to the accused to explain the incriminating circumstances, which appear from the evidence on record against him and to offer his explanation, if any, thereto.
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.PC in accordance with the requirements of law contained in that behalf and that, for this purpose, the case needs to be remanded 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 observations of 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, this appeal, for the reasons indicated above, succeeds. The impugned judgment and order shall 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.PC 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.