ABID HOSSAIN ALIAS BECHU Vs. STATE

JUDGEMENT

(1.) The instant Death Reference No. 3 of 1994 and the Criminal Appeal being No. 265 of 1994 arise out of the Judgment dated 20th September, 1994 passed by the learned Additional Sessions Judge, 11th Court, Alipore in the case being ST Case No. 4(6) of 1994 thereby convicting the appellant Abid Hossain alias Bechu under Section 302 of the Indian Penal Code and sentencing him to death.

(2.) We have heard Mr. Roy, the learned Counsel appearing for the appellant and the learned Additional Public Prosecutor. We have gone through the Lower Court Records and the impugned Judgement. It appers from the Lower Court Records that the accused was charged under Section 302/34 for committing murder of one Sk. Faruque @ Sanu on the night of 4th of April, 1993 at about 9.15/9.30 P.M. It also appears from the Lower Court Records that besides the Investigating Officer, the Post Mortem Doctor, Seizure list witnesses, the prosecution has examined as many as 5 (five) witnesses to the occurrence. They are PW. 1, PW. 6, PW. 8, PW. 9 and PW. 13, PW. 7 and PW. 10 are the witnesses who allegedly appeared at the place of occurrence immediately after the occurrence. From the examination of the accused under Section 313 of the Code of Criminal Procedure as made by the learned Additional Sessions Judge, Alipore, it appears that the accused was not properly examined under the aforesaid Sections in accordance with the provisions of law. The question No. 1 is a general question being an involved one covering two many circumstances clubbed together. Besides this, no other question was put to the accused appellant to enable him personally to explain the circumstances appearing in the evidence against him. In our view such examination has been done by the learned Additional Sessions Judge in a most perfunctory manner and we are convicted that non-compliance of the provisions of Section 313 on the part of the learned Additional Sessions Judge has materially prejudiced the appellant-accused which has been rightly emphasized by Mr. Roy. The law is quite well-settled that the accused must be questioned separately upon each material circumstance which is intended to be used against him. Because, the whole object of the Section is to afford the accused a fair and proper opportunity of explaining circumstances which appeared against him and the question must be fair and must be couched in such a form so that an ordinary person being charged with an offence may be able to appreciate and understand the same. It also appears from the impugned judgment that in order to find the appellant guilty of an offence under Section 302 of the Indian Penal Code, the learned Additional Sessions Judge has taken into consideration many pieces of evidence on record to which he did not draw the attention of the appellant in course of his examination under Section 313 of the Code of Criminal Procedure.

(3.) Under the circumstances as has been rightly submitted by Mr. Roy, it would not be proper and legal to uphold the order of conviction and sentence and to confirm the death reference made by the learned Additional Sessions Judge. The appellant should have been and must be given an opportunity to be examined under Section 313 of the Code of Criminal Procedure in the spirit of the law contained therein.