JUDGMENT
I.A. Ansari, J.
1. This criminal reference has arisen out of the judgment and order, dated 25.10.2004, passed by the learned Addl. District Magistrate (Judl.), Aizawl, in Crl. T.R. No. 1625 of 2003, convicting the accused Vanlalchhanga under Sections 376(2)(f) and 341 of the I.P.C. and sentencing him to suffer rigorous imprisonment for 10 years with a fine of Rs. 3,000 and, in default, to suffer rigorous imprisonment for a further period of two months.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows:
On 17.7.2003 at about 11 A.M., while Ms. X, aged about 9 years, a student of Class-III, was walking down on the steps near Vancy Hotel at Chandmary, accused Vanlalchhanga, who was standing on the stairs, caught hold of both the arms of Ms. X and told her to come with him to buy sweets. As Ms. X refused to go, the accused forcibly dragged her into the said hotel, brought her in one of the double-bedded rooms of the hotel and threatening the said child with a knife, gagged her mouth e and forcibly committed sexual intercourse with her. As a result of the said acts of the accused, there was bleeding from the genitals of the victim. On being freed by the accused, the victim, somehow, reached home and reported the occurrence to her mother, Ms. V. The victim’s mother noticed that the genitals of the victim had sustained injuries and the same were smeared with blood. This apart, the accused had also been seen by some persons taking the girl inside the said hotel. On a written FIR having been lodged, in this regard, by the mother of the said victim, police registered a case under Section 376/341 of the IPC. During investigation, the victim was medically examined and after his arrest, the accused made judicial confession. The police, accordingly, laid charge sheet against the accused under Section 376/341 I.P.C.
3. During trial, charges under Sections 376(2)(f) and 341 of the IPC were framed against the accused person. To the charge so framed, the accused person pleaded not guilty. In all, prosecution examined as many , as 11 witnesses.
4. The accused was, then, examined by the learned trial court and in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of total denial. The defence also adduced witness by examining as many as 5 witnesses. On finding the accused a guilty of the charges framed against him, the learned trial court convicted him accordingly and passed sentence against him as already mentioned hereinabove.
5. We have heard Mr. N. Sailo, learned Public Prosecutor, and Mr. H. Lalringthanga, learned Counsel, as Amicus Curiae.
6. When we proceed to dispose of the appeal on merit, we, for the reasons indicated hereinbelow, notice that a vital lapse on the part of the learned trial court does not permit us to appreciate the evidence be record effectively.
7. 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 relied 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.
8. We may refer, at this stage, to the case of Sharad Birdhichand 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 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 9 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 his 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.P.C. have to be completely excluded from consideration.
9. 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 a 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.
10. 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 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 arid it cannot, and must not be treated as an empty formality.
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 there to but the same having not been done, learned trial court ought not to have based its findings on such incriminating pieces of evidence.
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 of 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 enable him to offer his explanation, if any, thereto.
13. 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.
14. Ordinarily, we would have reappreciated 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 observation of this Court on any price of evidence on record and if may feel free to come to its own independent findings after appropriate examination of the accused-appellant.
15. In the result, this appeal, for the reasons 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.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.