Calcutta High Court (Appellete Side)
The State Of West Bengal vs Palash Ghosh & Ors on 19 May, 2016
Author: Patherya
Bench: Patherya
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present : The Hon'ble Justice Nadira Patherya And The Hon'ble Justice Debi Prosad Dey Death Reference No.1 of 2016 In connection with C.R.A. 104 of 2016 The State of West Bengal VERSUS Palash Ghosh & Ors.
Palash Ghosh & Ors.
VERSUS The State of West Bengal For the Appellants :Mr. Sekhar Basu, Ld. Sr. Advocate, Mr. Tapan Deb Nandy, Mr. Soubhik Mitter.
For the State :Mr. Manjit Singh, Ld. P.P.
Mr. Pawan Kumar Gupta,
Mr. Rudradipta Nandy.
Heard on : 29.03.2016, 30.03.2016, 04.04.2016,
05.04.2016 & 06.04.2016.
Judgment on : 19th May, 2016.
Patherya J. :
This Death Reference is directed against the order of conviction and judgment dated 2nd February, 2016, 3rd February, 2016 and 4th February, 2016 passed by the Additional Sessions Judge, 3rd Court, Nadia, Krishnanagar in Sessions Trial No.III (March)15 arising out of Sessions Case No.22(3)15 whereby and whereunder the Trial Court sentenced the accused appellants to death for the offence under Section 302 I.P.C. read with Section 34 I.P.C. and to pay a fine of Rs.50,000/- each, in default to suffer further rigorous imprisonment for two years, for the offence under Section 307 I.P.C. read with Section 34 I.P.C to suffer rigorous imprisonment for life and pay a fine of Rs.50,000/- each, in default to suffer further rigorous imprisonment for two years, for the offence under Section 27(1) of the Arms Act read with Section 35 of the Arms Act to suffer rigorous imprisonment for 7 years each and pay a fine of Rs.10,000/-, in default to suffer further rigorous imprisonment for one year, for the offence under Section 9B(1)(b) of the Explosives Act, 1884 the accused appellants were sentenced to suffer rigorous imprisonment for two years each and pay a fine of Rs.3,000/- each, in default to suffer further rigorous imprisonment for six months each. The said sentences were to run concurrently.
On passing of the said order a reference was made by the Trial Judge under Section 366 Cr.P.C. and it is only pursuant thereto that the reference has been placed before us for confirmation of the death reference. The accused appellants have also filed appeals against the said judgment and order of conviction which has been registered as CRA 104 of 2016. Both the death reference being Death Reference No.1 of 2016 and Criminal Appeal No.104 of 2016 arise from a common judgment and order of conviction and is being disposed of by a common judgment.
The case of the prosecution is that on 23rd November, 2014 at 7 a.m. the accused appellant no.2 alongwith some miscreants entered into the land of the victim with two tractors with an intent to plough the said land and take possession thereof. A protest was raised and in the said protest the accused appellant no.2 and the miscreants opened fire. One bullet injury was suffered by the victim lady and because of such bullet injury, she succumbed to her injuries. Others who were injured in the firing were P.W.7 (Latika Tarafder), P.W.15 (Shyamali Tarafder) and P.W.16 (Rajib Mondal). The victim lady was taken to the Krishnaganj hospital where she was declared dead. P.W.7 and P.W.15 were referred to Shaktinagar hospital while P.W.16 was referred to NRS hospital, Calcutta.
An F.I.R. was filed on 23rd November, 2014 at 16:05 hours by P.W.1. The husband of the victim lady (P.W.6) filed a complaint on 25th November, 2014. A surathal was conducted in U.D. Case No.63/14 dated 23rd November, 2014 over the body of the victim lady. Thereafter, the body of the victim lady was sent for postmortem to Krishnaganj hospital through Constable-256, Prasad Pramanik. On the basis of the complaint filed, investigation was undertaken, seizures made under a Seizure List and on completion of investigation charge-sheet was submitted against Palash Ghosh, Paresh Ghosh, Lankeswar Ghosh and Jhantu Ghosh under Section 302/34 I.P.C., 307/34 I.P.C., Section 27(1) Arms Act and Section 9B(1((b) of the Explosives Act.
On 26th November, 2015 on surrender of Basudeb Ghosh, Joydeb Ghosh, Rajkumar Ghosh, Nepal Ghosh so also Sanat Ghosh, Shyamal Ghosh and Gautam Ghosh charges were reframed and charge-sheet was submitted against them under Sections 307/34, 302/34 I.P.C., Section 27(1) of the Arms Act and Section 9(B) of the Explosives Act. The case was committed to the Court of Sessions, Nadia, who transferred it to the Court of the Additional Sessions Judge, 3rd Court, Nadia for trial. The charges were read out to the accused appellants who pleaded not guilty and claimed to be tried. The I.O. at the time of submitting the charge- sheet sought for leave to file a supplementary charge-sheet on receipt of the report from FSL and ballistic expert. The prosecution examined 41 witnesses and exhibited 35 documents and VI material exhibits in order to prove the charges against the accused appellants.
On consideration of both oral and documentary evidence the Trial Court passed the order of conviction and sentence dated 2nd February, 2016, 3rd February, 2016 and 4th February, 2016 for the offence under Sections 302/34 I.P.C., 307/34 I.P.C., 27(1) of the Arms Act and 9B(1)(b) of the Explosives Act. Being aggrieved by the said order of conviction and sentence CRA 104 of 2016 has been filed by the accused appellants and the death sentence has been referred by the Trial Court to this Hon'ble Court for confirmation.
Defence Counsel submits that the date of incident is 23rd November, 2014. The F.I.R. was filed by P.W.1 on the same day at 16:05 hours. Prior thereto U.D. case no.63/2014 was started and inquest was conducted on the body of the victim lady in the presence of P.W.6 (husband of the victim lady), P.W.11 and P.W.23. The body of the victim lady was sent for postmortem. Postmortem was also conducted on 23rd November, 2014. A complaint was filed by the husband of the victim lady on 25th November, 2014 which P.W.6 (husband) in his substantive evidence has stated was as per instruction of the police. Therefore, the said complaint filed on 25th November, 2014 cannot be relied upon, is unbelievable and cannot form the basis of investigation. Charge-sheet was filed on 24th March, 2015 on the arrest of Palash Ghosh, Paresh Ghosh, Lankeswar Ghosh and Jhantu Ghosh. Charges were reframed on surrender of Basudeb Ghosh, Joydeb Ghosh, Rajkumar Ghosh, Nepal Ghosh, Sanat Ghosh and Gautam Ghosh. At the time of filing the charge-sheet the I.O. sought for leave to file a supplementary charge- sheet on receipt of report of ballistic expert and FSL report. A supplementary charge-sheet was filed on 5th August, 2015 but not for bringing on record the report of the ballistic expert or the FSL report, in fact, the report of the ballistic expert was received only after the trial was completed. By the supplementary charge-sheet filed on 5th August, 2015 the statement recorded of P.W.31 and P.W.32 under Section 161 Cr.P.C. was brought on record and on 7th August, 2015 the said two witnesses (P.W.31 and P.W.32) were examined in Court. P.W.1, defacto complainant was examined in Court on 28th April, 2015. Thereafter, witnesses were examined till 4th August, 2015 and each of the witnesses except the autopsy surgeon (P.W.5), P.W.6 (husband of the victim lady) and P.W.22 were declared hostile. The evidence of P.W.6 is full of contradiction and does not aid the prosecution. It is at this stage of trial when all prosecution witness had turned hostile that on 4th August, 2015 further investigation was undertaken and the statement of P.W.31 and P.W.32 allegedly recorded. This desperate attempt by the prosecution to prove its case was in futility as P.W.31 has stated in cross-examination that three days after her return from her maternal uncle's house she met the police, she then informed the police of the incident and thereafter did not meet the police and was making statement thereafter before the Court that day. Similarly, P.W.32 has also in her cross-examination stated that after half an hour of the incident the police came to the P.O. and she informed of the incident to the police, which was noted by them, thereafter she did not meet the police and after the incident she was making the statement in Court that day. Therefore, the statement recorded under Section 161 Cr.P.C. could not have been recorded in August, 2015. It has been brought in only to save the prosecution's case as all its witnesses P.W.1 to P.W.30, barring P.Ws.5, 6 and 22 had turned hostile and their evidence did not aid the prosecution's case. The evidence of P.W.31 and P.W.32 has also not helped the prosecution. If the evidence of P.W.31 and P.W.32 is believed then that of P.W.41 is to be disbelieved. The evidence of P.W.6 has also not been believed by the Trial Court. P.W.31 and P.W.32 (daughters) are the daughters of P.W.6 (husband) and the victim lady. According to P.W.31 the mother was present in the house while P.W.32 has stated that P.W.31, P.W.6 and the victim lady along with herself were present in the house. On hearing that miscreants had come to take possession of their land, P.W.31, P.W.32, P.W.6 and the victim lady went to the said land where P.Ws.31 and 32 found Lankeswar Ghosh and others cultivating their land forcibly by three tractors. Both P.W.31 and P.W.32 have stated that they saw the miscreants firing and in that firing the victim lady sustained a bullet injury. According to P.W.31 the victim lady sustained bullet injury as she protested to the miscreants cultivating their land and it was then, that the miscreants opened fire. Both P.W.31 and P.W.32 have stated that the miscreants carried Gun, Dao and Lathi at the P.O. While P.W.31 found Lankeswar Ghosh and others cultivating the land P.W.32 did not say so. All that P.W.31 and P.W.32 have stated is that the miscreants opened fire without specifically naming the miscreants. Although P.W.31 and P.W.32 have spoken of embracing their mother when she fell down hit by the bullet, the presence of P.W.31 and P.W.32 finds no mention in the evidence of P.W.6 (father). P.Ws.1 to 4, 7 to 21 and 23 to 30 though hostile, have not mentioned the presence of P.W.31 and P.W.32 at the P.O. on the date of incident. P.W.31 and P.W.32 have stated that their wearing apparels was stained with blood as they embraced the body of their mother when she fell down to the floor but there is no mention in the evidence of P.W.6 of the stained apparels of P.W.31 and P.W.32 far less their presence. The evidence of P.W.41 (the second I.O.) with regard to recording the statement of P.W.31 and P.W.32 must be tested on the anvil of the evidence of P.W.31 and P.W.32 in respect of meeting the police. Both P.W.31 and P.W.32 have not stated about meeting the I.O. or making a statement to him in August, 2015. The evidence of P.W.41 ought not to be relied on when compared with the evidence of P.W.40. In his cross-examination P.W.41 has stated that on going through the case diary he realized that Nivarani Sarkar (P.W.21) and Sailen Sarkar (P.W.23) were vital witnesses who had not been examined by P.W.40 the first I.O., but this is an incorrect statement as P.W.40 has specifically stated that he examined both P.W.21 and P.W.23. He has also admitted that for further investigation he proceeded to the house of P.W.6 but in the case diary did not mention the date or time when he went to the house. He also did not inform his superior officer in writing that the daughters of the victim lady had not been examined. The said creates a suspicion whether 161 statement of P.W.31 and P.W.32 were at all recorded and, in fact, are fabricated documents. According to the Trial Court further investigation cannot be faulted when trial was ongoing. P.W.31 and P.W.32 have stated that they along with the victim lady and P.W.6 left their home for the field. P.W.6 has not corroborated the accompaniment of P.W.31 and P.W.32. In fact, he has stated that the victim lady went to the field to cultivate land. He had gone with his van at about 7 a.m. in the morning and it was after hearing the noise he went to the P.O. and saw the victim lady lying there with gunshot injury. He did not identify Palash Ghosh and Paresh Ghosh in Court. The evidence of P.W.6 was recorded on 26th June, 2015. He is not an eyewitness and his evidence is filled with embellishment. According to him Nepal Ghosh was not at the P.O. at the time of incident. P.W.5 (Autopsy Surgeon) found one bullet injury and one bullet was recovered from the fractured vertebra. Although the wearing apparels and visera was handed for FSL examination, but no FSL report was taken, the ballistic expert's report also came after the trial. Therefore, Exhibit-2/2 could not be considered as the ballistic expert's report was not a part of the evidence and Exhibit- 2/2 is only on paper without being proved. The second I.O. was appointed on 12th January, 2015 and the first charge-sheet was submitted on 26th February, 2015. Therefore, there was ample opportunity for the second I.O. to further investigate into the case before the charge-sheet could be submitted. According to the prosecution it was two tractors which damaged the crops but the tractors were seized from Durgapur P.S., Krishnaganj, Nadia on 27th November, 2016. It is the case of each of the witnesses that the accused appellants with a tractor cultivated the land and damaged the crops but there is no evidence to this effect. P.W.40 has stated that Lankeswar Ghosh the accused appellant no.2 was arrested from the field. It is contrary to the evidence of P.W.13 and P.W.14 in this regard as it is the specific evidence of P.W.13 and P.W.14 that it was from the house of P.W.14 that Lankeswar Ghosh was arrested. The statement of Lankeswar Ghosh recorded under Section 161 Cr.P.C. is inadmissible. P.W.40 has stated that he examined all the witnesses who came before him at the P.O. on the fated day. He has specifically stated that he did not visit the house of the victim lady on the fated day, neither did he meet the two daughters at the time of inquest. He did not also enquire the whereabouts of P.W.31 and P.W.32. Therefore, on the date of incident P.W.31 and P.W.32 were not examined. P.W.31 has deposed that she made a statement to the police a few days after the incident. P.W.32 has deposed that she made a statement to police on date of incident. Both did not meet the police thereafter. P.W.41 has stated that he examined P.W.31 and P.W.32 on 4th August, 2015. When the said depositions are considered only one conclusion can be reached, i.e., the statement of P.W.31 and P.W.32 are fabricated documents. The statement of Lankeswar Ghosh recorded under Section 161 Cr.P.C. is inadmissible and the only portion which will be admissible is aiding in recovery of the bullets and gun and nabbing the other accused. His evidence recorded as regards his mobile seized, is totally irrelevant. No relevant incriminating material was put to the accused appellant when examined under Section 313 Cr.P.C. The questions put were totally irrelevant and unrelated. There was no recovery or arrest. Therefore, there was nothing incriminating. No questions with regard to the evidence of the autopsy surgeon, FSL and Jalkathis were put while the accused appellants were examined under Section 313 Cr.P.C.
The principle laid down in the decision reported in (2007) 8 JT (SC) 332 and (2015) 2 Criminal Law Reporter (Cal) 82 be applied while assessing the evidence of P.W.31 and P.W.32. No T.I. Parade was held and as held in (1997) SC 332, AIR 1970 SC1321 and AIR 1972 SC 102 that in the absence of T.I. Parade identification report cannot be accepted with certainty as reliable identification. The purpose of T.I. Parade has also been explained in the decisions abovementioned. It is not only to strengthen the trustworthiness of the evidence but is also necessary to ensure justice and fair play both to the accused and to the prosecution. In the instant case no T.I. Parade was conducted, therefore, identification of the miscreants by the P.W.32 cannot be relied upon. The case of the prosecution is under Section 34 I.P.C. that is of common intent. The offence of vicarious liability under Section 149 I.P.C. has not been pressed and to allege common intent would imply a pre-arranged plan. Similar intent and common intent cannot be confused as held in AIR 1945 Privy Council 118 and followed in (2015) 4 AICLR 753. Section 313 examination is not only defective but has prejudiced the accused appellants as the incriminating material, namely, the evidence of the autopsy surgeon was not put to the accused appellants while being examined under Section 313 Cr.P.C. This has prejudiced the appellants and rendered the sentence and conviction bad in law as held in (2014) 3 Supreme 460, (2013) 12 SCC 406, (2015) 2 Calcutta Criminal Law Reporter (SC) 12, (1995) 4 SCC 262 and Narshingh's case (2015) 2 Calcutta Criminal Law Reporter (SC) 12 and the matter be remitted to the Trial Court to enable the incriminating circumstance to be put to the accused without considering the case on merits. For all the said reasons, therefore, the order of conviction and death sentence be set aside.
Opposing the appeals filed by the accused appellant and supporting the death reference learned Public Prosecutor submits that this is a case where poor cultivators were being dispossessed by powerful people from their land. The reason for all witnesses turning hostile is writ large. The law is only to be followed by the poor and is to be used to their advantage by the rich and the strong. Although in India the accusatorial system is followed, it is high time that this system is replaced by the inquisitorial system. P.W. 7 is an injured witness and she has stated that the police did not meet her and did not ask her about the incident of the case. Similarly P.W.15 another injured witness has also stated that the police did not ask him about the incident of the case, P.W.16 another injured witness has also stated that the police did not meet him in the hospital. From the aforesaid, therefore, the conduct of P.W.40 (the first I.O.) is evident. P.W.27 and P.W.28 are the doctors who treated the injured witness P.Ws.7, 15 and 16 respectively. None of them asked the injured persons about the history of assault. Many bullets were fired and the said bullets fired were found and seized as will appear from Exbhibit- 2/2. P.W.31 and P.W.32 are the only witnesses whose evidence is of importance and they can be described as eyewitness. The supplementary charge-sheet was filed on 5th August, 2015 and the only reason for doing so was to bring on record the statement which P.W.40 did not bring on record. This P.W.41 was entitled to do under Section 173(8) Cr.P.C. P.W.31 and P.W.32 are both trustworthy witness and their evidence cannot be discarded as the supplementary charge-sheet was never challenged or questioned by the defence. From the evidence of P.W.7, P.W.15 and P.W.16 it is evident that the first I.O. (P.W.40) did not examine them. T.I. Parade is only conducted to ensure that the investigation is moving in the right direction and there was no doubt in the mind of the I.O. that it was not moving in the right direction. At the stage of investigation it was not contemplated that a large number of witnesses would turn hostile. Therefore, not conducting of T.I. Parade cannot be fatal to the case of the prosecution, more so, in the light of the evidence of P.W.31 and P.W.32.
In reply Counsel for the defence submits that till 3rd August, 2015 all the witnesses were hostile and only to cover up the lacuna P.W.31 and P.W.32 were brought in. Section 173(8) Cr.P.C. was not needed to cover such lacuna.
Having considered the submission of the parties in this case 11 persons have been sentenced to death. In all 41 witnesses were examined by the prosecution. Out of the 41 witnesses P.Ws. 1, 2, 3, 4, 8, 9, 11, 21 and 23 turned hostile. P.Ws. 7, 15 and 16 though injured witness also turned hostile. P.Ws. 26, 27 and 28 are Doctors who examined the injured witness. P.Ws. 10, 12, 17, 18, 19, 20, 29, 30, 33, 34, 37, 39, 40 and 41 are formal witness. P.W.13 is the landlord of P.W.14, the daughter of Lankeswar, accused appellant no.2. P.Ws. 22 and 36 are the owners of the land. P.Ws. 24 and 25 are drivers of the tractors.
The evidence of P.W.35 is nothing but hearsay. P.W.5 is the autopsy surgeon who opined that the death of the victim was due to shock and hemorrhage caused by fire arm missile injury. He found injuries as mentioned by him in the postmortem report. P.W.6 is the husband of the victim whose evidence is unbelievable. He reached the P.O. one hour after hearing the noise and according to him the complaint was lodged as per the instruction of the police. He came to know the names of Lanka, Palash and Paresh from the police.
P.Ws. 22 and 36 are the landlord and landlady of the land cultivated.
P.Ws. 24 and 25 are the drivers of the tractors who did not cultivate land at the P.O. on the fated day.
P.Ws. 26, 27 and 38 are the doctors who treated P.W.16, P.W.7 and P.W.15 respectively but did not record the history of assault. P.W.28 examined all the injured persons, namely, P.Ws. 7, 15 and 16 but did not record the history of assault.
P.Ws. 31 and 32 are the daughters of the victim who are eyewitness to the occurrence of the incident.
Therefore, on an analysis of the evidence of P.W.5 (autopsy surgeon), P.W.6 (husband), P.Ws.22 and 36 (Landlords), P.Ws.24 and 25 (drivers of the tractors), doctors of the injured witness (P.Ws.7, 15 and
16) and the daughters of the victim lady (P.Ws. 31 and 32), the land belonged to P.W.22 and P.W.36. A year ago P.W.22 had executed a deed in the presence of Lanka Ghosh for which no money had been received. P.W.22 was however not in a position to state in whose name the deed had been executed. P.W.36 is also the owner of a land in Ghugragachi. A Power of Attorney was executed by him in favour of Gautam Ghosh and Joydeb Ghosh to look after the said property and to sell it to the cultivators. Therefore, one of the landlords executed a registered deed in the presence of Lanka and the other executed a power of attorney in favour of Gautam Ghosh and Joydeb Ghosh. The doctors of the injured persons found an open wound with a bullet inside the wound (P.W.26), circular lacerated skin cut injury (P.W.27), gunshot injury on face (P.W.38) but none of the doctors recorded the history of assault in spite of them finding the injured to be conscious and alert. P.W.28 also found the injuries mentioned above but did not record the history of assault. Exhibit-21 is the injury report of P.W.15 (Shyamali Tarafdar) where no name of the assailant has been mentioned.
The prosecution case is that the accused appellants had ploughed the land with tractors but this is belied by the drivers of the tractors (P.W.24 and P.W.25) who were not at the P.O. on the date of incident. P.W.24 was at Durgapur - 6/7 Km. away from the P.O. on the date of incident and P.W.25 never went to the fields at the P.O. with tractor.
The autopsy surgeon (P.W.5) found the victim with the injures and death was due to such injuries but he too was in no position to say who caused the injury.
Therefore, none of the aforementioned witness, namely, P.Ws. 5, 6, 24, 25, 26, 27, 28 and 38 could name the assailants. It is only P.Ws.31 and 32 who have named the assailants. P.Ws. 31 and 32 are the daughters of the victim lady and both deposed that on the date of incident on hearing the miscreants had come to take possession of their land P.Ws. 31 and 32 accompanied by their parents went to the land. On reaching there P.W.31 found Lankeswar Ghosh, the accused appellant no.2 cultivating their land forcibly with three tractors. Therefore, Lankeswar Ghosh was identified by P.W.31. P.W.32 also corroborated this statement by stating that when they reached the P.O. the accused persons were cultivating the land with tractors and on protest by the victim lady opened fire. She identified Lankeswar Ghosh as the person with a tumour on his head. Therefore, the presence of Lankeswar Ghosh was proved by P.Ws. 31 and 32.
Both P.Ws. 31 and 32 found the accused persons/miscreants possessing bombs, guns, lathi, dao etc. and protest by the victim lady led to open fire. P.W.31 in her examination-in-chief identified the accused persons along with accused appellant no.2 but no attempt was made to demolish the said statement in cross-examination. P.W.32 identified the accused persons who opened fire in cross-examination, and although Counsel for the accused appellant submits that a supplementary charge- sheet was submitted but not for the reason for which leave had been taken. The 161 statement of P.W.31 and P.W.32 was recorded on 4th August, 2014 and they deposed in Court on 7th August, 2014 but no objection was taken by the defence counsel in the Court below to the examination of the said two prosecution witnesses or the supplementary charge-sheet filed.
P.W.31 in cross-examination has stated that she told of the incident to the police who noted the statement but she did not sign. Thereafter she did not meet the police. P.W.40, the 1st I.O. has stated that he did not examine P.Ws.31 and 32. This was detected by the 2nd I.O. (P.W.41) who recorded their statement. Not finding the statement in the CD may be for many reasons. One that the police who recorded it did not give it to the I.O. (P.W.40). This at best will be a lapse on the part of the I.O. (P.W.40) and will amount to defective investigation. But for lapse on the part of the I.O. or defective investigation unless it goes to the root cannot be reason to set aside the order of conviction and sentence. Defective investigation by P.W.40 (1st I.O.) was by P.W.41 (2nd I.O.) rectified. Both P.Ws. 31 and 32 were allowed to depose without any objection being raised by the defence counsel in the Court below. Therefore, their evidence cannot be discarded. When P.W.22 signed or executed a deed according to her, Lankeswar Ghosh (accused appellant no.2) was present. Powers of Attorney was executed by P.W.36 in favour of Joydeb Ghosh (accused appellant no.6) and Gautam Ghosh (accused appellant no.11). These were for the 21½ plus Bighas of land in Ghugragachi. The presence of Lankeswar at the time of execution of papers suggests that he was in someway interested in the said lands and his presence at the P.O. suggests that instead of initiating legal proceedings thought it best to resort to muscle power to take possession of the said lands. If there was any legal proceedings then those who were cultivating the land may have contested and would have known the fate of the proceedings. In the situation of panic created the cultivators did not know the reason for Lankeswar taking forcible possession of the land and, therefore, the protest. To take forcible possession Lankeswar would have to be equipped with something more than himself and what he was equipped with were men and ammunition found by P.W.31 and P.W.32 and although P.W.32 found the accused persons at the P.O. and the evidence of P.Ws.31 and 32 cannot be disbelieved or rejected but one factor prevents us from confirming the order of conviction that being the examination of the accused appellants under Section 313 Cr.P.C. which in the absence of relevant questions and incriminating circumstance being put to the accused appellants while being examined under Section 313 Cr.P.C. has caused prejudice to the accused appellants and as held in (2015) 1 SCC 496 the case ought to be remitted to the Trial Court for redecision from the stage of recording the statement under Section 313 Cr.P.C. From a reading of the examination of the accused appellants under Section 313 Cr.P.C. it appears that all the incriminating circumstance were not put to the accused appellants and this has caused prejudice to the accused appellant and it is only for this reason that the matter is remitted to the Trial Court for retrial from the stage of recording the statements of the accused, i.e., from the point where the irregularity occurred, i.e., from the stage of questioning the accused under Section 313 Cr.P.C. The Trial Court may examine the accused and defence witness afresh and dispose off the matter thereafter within 6 weeks from the date of receipt of this order.
It is only for this reason that the order of conviction and sentence is set aside.
Let the lower Court record be sent to the trial Court forthwith by the Department.
Let a photostat copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.
(Patherya, J.) I agree (Debi Prosad Dey, J.)