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2. The facts briefly are that on 3.1.1995 and FIR was lodged before the Office Incharge of Bongaigaon GR Police Station by one Shri Chiran Chandra Dutta stating that at about 10 AM of 2.1.1995 his daughter Ranjita Dutta aged about 14 years had left home for Birjhora Girls High School to collect from there her mark sheet of the last annual examination but she did not return home till evening and they enquired about her all around and later at 8.30 PM an FIR was lodged with the Bongaigaon Police put ost and the search for the girt was continued all night but she was not found anywhere and at abqut 9 AM in the morning of 3.1.1995 the girl as found lying dead with injuries by a railway track near 144/7 KM milestone between Bangaigaon and New Bangaigaon railway statical- in the FIR it was further stated that sight of the body of the girl indicated that someone had raped her and later murdered her and left the body on the railway track to pass it as a train accident with the intention of causing disappearance of evidence. Bengaigoan GR Police Station Case No, 1/95 was registered under Sections 376/34, 302/34 and 201/34, IPC and the case was transferred to the Bongaigoan Police Station on 5.1.1995 and registered afresh as Bongaigaon Police Station Case No. 1/95 and investigation started. On 9.1.1995, the appellant Ambarish was arrested and produced before the learned Chief Judicial Magistrate, Bongaigoan, who remanded him to police custody. On 16.1.1995, the other appellants were arrested and produced before the learned Chief Judicial Magistrate and were remanded to police custody arid were subsequently enlarged pn bail. On 3.11.1996, Hitech Chandra Roy was arrested. On 15.11.1896, Hitech was produced from police custody and his statement was recorded under Section 164, CrPC, by the Executive Magistrate and thereafter he was remanded again to the police custody. On 21.11.2001, Hitesh was again produced from police custody before the learned Chief Judicial Magistrate who recorded his second confessional statement under Section 164, CrPC. On 5.2.1997, charge sheet was filed against the accused persons. On 13.5.1997, Hitesh filed an application for granting him pardon stating therein that he will make full disclosure of the incident as an approver and the said application was heard and orders were passed by the learned Chief Judicial Magistrate granting pardon to Hitesh pn the condition that he will have to make full disclosure pf the commission of the offence and the statement of Hitesh was recorded by the learned. Chief Judicial Magistrate. On 20.6.1997, learned Chief Judicial Magistrate passed orders committing the case to the learned Sessions Judge, Bongaigaon, for trial. By the said order dated 20.6.1997, the learned Chief Judicial Magistrate declared two accused persons, namely Binoy Roy @ Chatu and Prafulla Choudhury @ Fu as absconders and observed that the case against them was to proceed under the provisions of Section 299, CrPC. By the said order dated 20.6.1997, the learned Chief Judicial Magistrate also rejected the prayer for bail moved on behalf of the appellants Narottom Barman, Dalim Sinha and Naba Kumar Das who were on bail. On 2.7.1997, the learned Sessions Judge framed charges against the appellants under Sections 376/34, 302/34 and 201/34, IPC. The appellants pleaded not guilty. At the trial as many as 20 witnesses were examined. The approver Hitesh was examined as PW 1. His statement recorded under Section 164, CrPC, before the Executive Magistrate on 15.11.1996 was marked as Ext-1, his statement recorded under Section 164, CrPC, on 21.11.1996 by the learned Chief Judicial Magistrate was marked as Ext-2. In his statement recorded under Section 306, CrPC, was marked as Ext-4. In his evidence before the Court as well as in Exts-1, 2 and 4, the approver Hitesh narrated the incident which took place on 2.1.1995. He has stated that in the night of 2.1.1995 he and the appellants committed rape on Ranjita Dutta at the varanda of the Hindi High School, thereafter the accused Prafulla strangulated her and the accused Ambarish scratched her face and the accused Prafulla gave her a blow on her buttock with a Kukri and thereafter they carried the dead body to the railway line and left it there. The learned Sessions Judge considered the evidence and held, inter alia, that the approver has not only unfolded the prosecution story but also proved it by his reliable and trust worthy evidence being materially corroborated by other true and reliable evidence and that he has no reason to disbelieve it. The learned Sessions Judge further held that the appellant and the approver in furtherance of their common intention committed rape on Ranjita Dutta, committed murder of the girl and caused disappearance of the dead body of the girl to shield themselves from legal punishment. The learned Sessions Judge held that the appellants are guilty of the offences punishable under Sections 376/34, 302/34 and 201/34, IPC and convicted them accordingly.

4. Mr. M.U. Mamud, learned counsel for the appellant in Criminal Appeal No. 7/98, adopted the aforesaid arguments of Mr. Bhattacharjee. In addition, he submitted that Sub-section (4) of Section 306, CrPC, provided that a person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in subsequent trial, if any. Thus the approver Hitesh was to be examined as witness in the Court of the learned Chief Judicial Magistrate who took cognizance of the offences. The learned Chief Judicial Magistrate examined the approver Hitesh on 13.5.1997 under Sub-section (4) of Section 306, CrPC. But such examination took place in the absence of the accused persons and the accused persons were not afforded any opportunity to cross examine the approver Hitesh. This irregularity, according to Mr. Mamud, learned counsel for the appellant in Criminal Appeal No. 7/98, vitiated the entire trial. He cited some decisions to which we will advert while dealing with this contention.

7. We will first deal with the contention of Mr. M.U. Mamud, learned counsel for the appellants in Criminal Appeal No. 7/98, that the entire trial stood vitiated as the appellants were not afforded the opportunity to cross-examine the approver Hitesh when his statement was recorded on 13.5.1997 by the learned Chief Judicial Magistrate under Sub-section (4) of section 306, CrPC. It is not disputed by Mr. Mamud that the appellants were afforded opportunity to cross-examine the approver Hitesh at the subsequent trial before the learned Sessions Judge, it is the evidence of the approver Hitesh (PW1) at the trial tested by cross-examination by the appellants which the Court has to consider for finding out whether the charges leveled against the appellants stand proved or not. Hence the appellants have not suffered any prejudice if they were not given any opportunity to cross-examine the approver Hitesh when he was earlier examined by the learned Chief Judicial Magistrate on 13.5.1997 under Subsection (4) of Section 306, CrPC. Further in case the appellants were aggrieved for not being afforded with the opportunity to cross-examine the approver when he was examined by the leaned Chief Judicial Magistrate on 13.5.1997, they should have raised objection before or soon after the learned Chief Judicial Magistrate committed the case to the learned Sessions Judge for trial. But instead of raising any such objection, the appellants participated at the trial in which as many as 20 witnesses were examined. In State of HP v. Surinder Mohan and others, (2000) 2 SCC 396, cited by Ms. K. Deka, learned Public Prosecutor, Assam, the Supreme Court after analyzing the ingredients of Section 306, CrPC, held that at the stage of investigation, enquiry or trial of the offence, the person to whom pardon is granted, is to be examined for collecting evidence and at this stage the accused cannot claim any right under law to cross-examine and the right to cross-examine would arise only at the trial. On the facts of that case, the Supreme Court further found that before or after the case was committed to the Sessions Court, the accused had not raised any objection that they were not permitted to cross-examine the approver, nor did they contend so when the approver was examined and cross-examined during the trial and the Supreme Court held that at the stage of final argument the accused cannot raise this contention. The Supreme Court further held that as a matter of fact after the accused had cross-examined the approver in detail at the trial there is no question of failure of justice nor any prejudice had been caused to the accused. The Supreme Court also held that acceptance of the objection of the accused in these facts would only promote technical plea which would adversely affect dispensation of justice and in such circumstances provisions of Section 465, CrPC, would come into operation.

8. In State (Delhi Administration) v. Jagjit Singh, 1989 1 SCJ 221 and A Devendran v. State of TN, (1997) 11 SCC 720, cited by Mr. Mamud, the Supreme Court has no where laid down that the accused has to be afforded an opportunity to cross-examine the person who is examined under Sub-section (4) of section 306, CrPC, by the Magistrate before commitment of the case of trial. In Uravakonda Vijayaraj Paul v. State and others, 1986 CRLJ 2104, cited by Mr. Mamud, the Andhra Pradesh High Court held that examination of the approver under Sub-section (4) of Section 306, CrPC, has to be done in the manner provided under Section 138, of the Evidence Act and hence the accused had to be given an opportunity to cross-examine the approver who is examined as witness. In the aforesaid case of Uravakonda Vijayaraj Paul v. State and others, (supra) the order of committal had been challenged on the ground that the accused had not been given an opportunity to cross-examine the approver when he was examined by the Magistrate under Sub-section (4) of Section 306, CrPC, and the Andhra Pradesh High Court quashed the order of committal and directed the Magistrate to give opportunity to the accused to cross-examine the approver. But in this case, as discussed above, the appellant did not raise any objection either before or soon after the committal of the case by the learned Chief Judicial Magistrate to the learned Sessions Judge. In our considered opinion the contention of Mr. Mamud that the trial stood vitiated as appellants were not given an opportunity to cross-examine the approver when his statement was recorded by the learned Chief Judicial Magistrate on 13.5.1997 under Sub-section (4) of Section 306, CrPC, has no merit.