Patna High Court
Pushanjit Burman @ Prasenjit Burman @ … vs The State Of Bihar on 8 January, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1085 of 2018
Arising Out of PS. Case No.-52 Year-2015 Thana- SONBERSHA RAJ District- Saharsa
======================================================
Pushanjit Burman @ Prasenjit Burman @ Prasenjit Verma S/o late Sushil
Burman resident of village/ mohalla - Gausani, P.S. Kuch Vihar, District Kuch
Vihar, West Bengal.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 90 of 2018
Arising Out of PS. Case No.-52 Year-2015 Thana- SONBERSHA RAJ District- Saharsa
======================================================
Pawan Yadav S/o Late Ram Bahadur Yadav, resident of Village- Manori, P.S.-
Sonbarsa Raj, District- Saharsa.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1085 of 2018)
For the Appellant : Mr. Amarnath Singh, Advocate
Mr. Kamal Kishore Singh, Advocate
Mr. Anil Kumar, Advocate
For the Respondent : Mr. Ajay Mishra, APP
(In CRIMINAL APPEAL (DB) No. 90 of 2018)
For the Appellant : Mr. Amarnath Singh, Advocate
Mr. Kamal Kishore Singh, Advocate
Mr. Anil Kumar, Advocate
For the Respondent : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 08-01-2025
Both these appeals under Section 374(2) of the Code
of Criminal Procedure arise out of common judgment of
conviction dated 13.12.2017 and the order of sentence dated
03.01.2018 rendered by learned Additional Sessions Judge-II,
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
2/29
Saharsa in Sessions Trial No. 247 of 2015, arising out of Sonbarsa
Raj P.S. Case No. 52 of 2015 (G.R. No. 940 of 2015), whereby
both the appellants have been convicted for committing the
offences punishable under Sections 302, 120(B)/34 of the Indian
Penal Code (IPC) and they have been sentenced to suffer rigorous
imprisonment for life and fine of Rs.5000/- each and, in default of
payment of fine, they will have to undergo further rigorous
imprisonment for six months each.
2. As both these appeals arise out of the common
judgment and order, learned counsel for the parties requested that
both the appeals be heard together as the evidence is common in
both these appeals and accordingly we have taken up both the
appeals together for final disposal.
3. Heard Mr. Amarnath Singh, learned counsel assisted
by Mr. Kamal Kishore Singh and Mr. Anil Kumar, learned counsel
for the appellants and Mr. Ajay Mishra, learned APP appearing on
behalf of respondent State in Cr. Appeal (D.B.) No. 1085 of 2018
and Mr. Sujit Kumar Singh, learned APP representing the
respondent State in Cr. Appeal (D.B.) No. 90 of 2018.
4. The facts leading to filing the present appeals are as
under:
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
3/29
4.1. A written complaint was given by one Navin
Kumar Singh to the Station House Officer, Sonbarsha Raj Police
Station in which he has mainly stated that on 18.04.2015
(Saturday) at about 7:00 PM, when he reached near brick kiln,
Manori of his elder brother Mani Prasad Singh, he heard his
brother shouting near the brick kiln. When he reached near him
running, he saw that three-four persons were brutally attacking
him to kill him, whereafter he started shouting and upon hearing
his shouts, Daulat Singh, Arvind Singh, Ajay Singh, Uday Singh
and Amar Singh came to the place of occurrence and went near
him (deceased) to save him. They saw that Sirajul Mian, Purunjeet
Burman and Pawan Yadav and three-four unknown persons armed
with knife, Dabiya and other sharp edged weapons were killing
him. Thereafter, the assaulters fled away. Thereafter, when they
lifted his elder bother, he was soaked with blood and fell
unconscious. They tried to take him to hospital, but by then he
died.
4.2. After receipt of the aforesaid written
complaint, formal First Information Report (FIR) came to be
registered on 19.04.2015 at about 7.30 AM. After registration of
the FIR, the Investigating Officer (IO) carried out investigation
and during the course of investigation, the IO collected the
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
4/29
evidence and recorded the statement of witnesses. Thereafter, he
filed charge-sheet against the appellants-accused.
4.3. As the case was exclusively triable by the court
of Sessions, the concerned Magistrate committed the case on
09.09.2015
under Section 209 of the Code to the concerned
Sessions court.
4.4. Before the trial court, the prosecution has
examined ten witnesses and also produced documentary evidence.
Thereafter, further statement of the accused-appellants under
Section 313 of the Code came to the recorded.
4.5. After conclusion of the trial, the trial court
passed the impugned judgment and order of conviction and
sentence against which the convicts have preferred present
separate appeals.
5. Learned counsel for the appellants would mainly
submit that there is delay in lodging the FIR. It has been pointed
out by learned Advocate that, as per the case of the informant,
incident took place at about 7:00 PM on 18.04.2015 for which
written complaint was given after three hours though the police
station is situated at a distance of 1½ km. from the place of
occurrence. It is further submitted that in the written complaint
itself, the informant has initially stated that he had seen three-four
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
5/29
persons giving blows to his brother, however, in the written
complaint itself the informant has thereafter narrated that the
present two appellants with one Sirajul Mian, with the help of
three-four unknown persons, were giving blows with knife, dabiya
and sharp-edged weapons and thereafter accused fled away from
the place of occurrence. At this stage, learned counsel has referred
the deposition given by the prosecution witnesses, including the
informant, who is PW 10. It is contended that PW 10, the
informant, has deposed in his examination-in-chief that there were
only two persons who were giving blows with deadly weapons to
his brother, i.e., one Sirajul Mian and appellant Pushanjit Burman.
It is further submitted that informant, PW 10, has specifically
stated during cross-examination that appellant-accused Pawan
Yadav was not present at the place of occurrence, despite which
the trial court has convicted the accused Pawan Yadav.
5.1. Learned counsel for the appellants thereafter
contended that PW 3, PW 4 and PW 7 have not supported the case
of the prosecution and they have turned hostile, whereas PWs 1, 2,
5 and 6 are hearsay witnesses. Learned counsel, therefore,
contended that the case of the prosecution rests on the deposition
of PW 9 and PW 10. However, both the aforesaid witnesses have
specifically admitted during cross-examination that Pawan Yadav
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
6/29
was not present at the place of occurrence, despite which he has
been convicted by the trial court.
5.2. Learned counsel thereafter contended that
there are major contradictions and inconsistencies in the deposition
of the prosecution witnesses, including PW 9 and PW 10, who are
near relatives of the deceased and, therefore, their deposition
cannot be relied upon. At this stage, it has been specifically
pointed out by learned counsel that informant PW 10 has admitted
in paragraph 5 of his cross-examination that he reached at the
place of occurrence after 10-15 minutes. Learned counsel,
therefore, contended that PW 10, the informant, is also not an eye-
witness.
5.3. At this stage, learned counsel has referred the
reasoning recorded by the trial court while convicting the present
appellants. It is contended that, in the present case, IO has not been
examined by the prosecution and because of the non-examination
of the IO serious prejudice has been caused to the defence. It is
contended that the trial court has observed that the appellant
Pushanjit Burman as well as the absconding accused Sirajul Mian
have voluntarily produced the weapons before the investigating
agency and confessed their guilt before the IO. However, there is
no evidence on record to suggest that the concerned accused have
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
7/29
confessed before the IO their guilt or they have produced the
weapons before the IO. It is further submitted that even the so-
called weapons were also not produced before the court during the
course of trial.
5.4. Learned counsel, therefore, urged that the
prosecution has failed to prove the case against the appellants
beyond reasonable doubt and, in fact, the prosecution has failed to
point out the motive on behalf of the appellants to commit the
alleged offence. At this stage, learned counsel has referred the
further statement of the accused appellants recorded under Section
313 of the Code and thereafter contended that the trial court has
failed to put all the incriminating evidence before the accused
while recording their statement under Section 313 of the Code.
Learned counsel, therefore, urged that the trial court has
committed grave error while passing the impugned judgment and
order. Hence, the impugned judgment and order be quashed and
set aside and both these appeals be allowed.
6. On the other hand, learned APP has
vehemently opposed both the appeals. Learned APP would mainly
contend that there are eyewitnesses to the occurrence in question.
The informant, PW 10, as well as PW 9 are the eye-witnesses who
have supported the case of the prosecution and specifically
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
8/29
deposed before the court about the role played by the present
appellants. It is further submitted that PW 8, the Doctor who has
conducted the post mortem of the dead body of the deceased, has
also supported the case of the prosecution and more than nine
injuries were found on the dead body of the deceased. Thus, the
medical evidence supports the version of the eyewitnesses.
Learned APP, therefore, urged that the prosecution has proved the
case against the appellants beyond reasonable doubt and, therefore,
the trial court has not committed any error while passing the
impugned judgment and order. Learned APP, therefore, urged that
both these appeals be dismissed.
7. We have considered the submissions canvassed
by the learned counsel for the parties and perused the evidence led
by the prosecution before the trial court. We have re-appreciated
the entire evidence. It would emerge from the record that, as per
the written report/complaint given by the informant-PW 10, the
incident took place at about 7:00 PM on 18.04.2015, for which
written complaint was given at about 10:00 PM, which was
registered on 19.04.2015 at 7:30 AM. It is the specific case of the
informant in the written complaint that he heard his brother
shouting and rushed towards the said direction and at that time he
saw that three-four persons were giving blows with weapons to his
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
9/29
brother. He, therefore, shouted and upon hearing his shouts, five
persons, named in the written report, rushed to the place of
occurrence and at that time they saw that one Sirajul Mian,
Pushanjit Burman and Pawan Yadav, with the help of three-four
unknown persons armed with deadly weapons like knife, dabiya
were giving blows to his brother. Thereafter, all the accused fled
away from the place of occurrence. Thus, from the aforesaid
written complaint, it can be said that initially the informant had
stated about three-four persons giving blows to his brother with
sharp-edged weapons. However, immediately thereafter, he named
three persons and alleged that the three named persons, including
the present appellants, and three-four unknown persons were
giving blows to his brother. It would further reveal from the
evidence led by the prosecution that though the informant has
named Arvind Kumar Singh who reached at the place of
occurrence, the said witness, PW 1, has stated in his examination-
in-chief that when he reached at the place of occurrence, he found
his brother dead. Thus, it can be said that PW 1 is not an eye-
witness and he subsequently reached to the place of occurrence.
7.1. PW 2, Daulat Kumar Singh, has though
deposed in his examination-in-chief in paragraph 1 that at the time
of incident wife of deceased called him on mobile phone and told
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
10/29
him that his elder brother (deceased) was in conflict with Pawan
Yadav and though he never goes to the brick kiln at this hour, he
has gone there, please go and verify, he immediately went to brick
kiln on a vehicle, but none was there in the office. After parking
the vehicle, when he moved forward, he heard some commotion
and when he reached there, he found dead body of Mani Babu
lying there having cut injuries and blood oozing out of it. There
three-four persons Arvind Singh, Navin Singh Uday Singh and
four-five labourers also reached there. Then Navin Singh
(informant) told that Pushanjit Burman, Pawan Yadav and Md.
Sirajul have killed his brother and fled away. He remained there
for some time and thereafter returned back to his house. When he
reached home, he came to know that Pawan Yadav has been
apprehended by the Police near the place of occurrence. The said
witness has admitted during cross-examination in paragraph 5 that
when he reached at the place, he found dead body of Mani Singh.
He has further admitted during cross-examination that police has
recorded his statement after 5-6 days. It is also relevant to observe,
at this stage, that PW 2 has specifically admitted in paragraph 15
that he had not seen anybody giving blow to Mani Singh. Further,
in paragraph 17 of cross-examination, he had once again admitted
that he reached at the place of occurrence after the incident took
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
11/29
place and after he reached at the place of occurrence, he found
Mani Singh dead. Thus, we are of the view that PW 2 is not an
eye-witness to the said occurrence.
7.2. PW 3 and PW 7 have not supported the case of
the prosecution and they have turned hostile.
7.3. PW 4 has admitted in paragraph 2 that he is not
aware about the occurrence and the said witness has signed on the
seizure list.
7.4. PW 5 and PW 6 have also deposed that they
have not seen the incident in question and PW 6 has specifically
stated that he was not present at the said place. He came to know
about the incident after 2-3 days. Thus, the aforesaid witnesses are
hearsay witnesses.
7.5. PW 8, Dr. Akhileshwar Prasad, is the witness
who has conducted the post mortem of the dead body of the
deceased. The said witness has specifically stated before the court
that he found following ante mortem injuries: –
“(a) a sharp-cut wound of about
4″x24″x4″x deep to viscera in the right iliac fossa,
(b) a second sharp-cut wound of about
1/4″x4″x4″x deep to viscera in the right flank,
(c) a third sharp-cut wound of about
1″x½”x deep to abdominal cavity in the right hypo
chondrium,
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
12/29
(d) a fourth sharp-cut wound of about
1″x½”x deep to the thoraxic cavity above the right
coastal margin,
(e) a fifth sharp-cut wound of about
1″x½”x deep to the thoraxic cavity below right
nipple,
(f) a sixth sharp-cut wound of about
2″x4″x1/6″ on right mid axila,
(g) a seventh sharp-cut wound of about
1″x½”x1/6″ lateral to left side of umlicus,
(h) an eighth sharp-cut wound of about
1″x½”x deep to thoraxic cavity just 2 ½” fight above
the right nipple,
(i) a nineth sharp-cut wound of about
3″x1″x cut to the lower end of right humeras bone,
(j) a tenth sharp-cut wound of about
3″x1″x fracture of upper end of right upper limb,
(k) an eleventh sharp-cut wound of about
3″x1″x deep to pelvic cavity on right upper buttock,
(1) a twelfth sharp-cut wound of about
1″x½”x muscle deep into right mid fore arm,
(m) a thirteenth sharp-cut wound of about
½”x2″x muscle deep on left fore arm just above the
wrist joint and
(n) a fourteenth sharp-cut wound of about
1″x½”x muscle deep below right knee joint.”
7.6. PW 8 found following injuries during internal
examination : –
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
13/29“(a) On opening the skull, the brain was
found conjusted.
(b) Upon opening the chest, right side of
upper lobe, middle lobe and lower lobe of lung (right
side) and incised and pleural cavity, all were full of
blood. There was no defect detected in the heart.
(c) Upon opening the abdomen, it was
found that the liver was incised and the peritorial
cavity was full of blood and the viscera of right
iliacfossa was incised.
The cause of death was haemoragic shock
due to injuries to vital organs liver, lungs and
viscera, resulting from the above quoted injuries.”
7.7. PW 9, Uday Singh, has been projected as an
eye-witness by the prosecution. The said witness has deposed in
his examination-in-chief in paragraphs 1 and 2 that the incident
took place at about 7:00 PM on 18.04.2015 when he was present at
the house of Mani Singh (deceased). The wife of deceased said
that Mani Singh has gone to the brick kiln. At that time Navin
Singh arrived there. She said that something has happened at the
brick-kiln, please go and verify. PW 9 along with Navin went to
the brick kiln and searched for the deceased. Then they heard
shouts. Navin and PW 9 rushed there when PW 9 saw that three-
four persons were inflicting knife, Dabiya and chhura blows to
Mani Singh. On seeing them, they started fleeing away. He
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
14/29
identified only two miscreants Md. Sirajul and Pushanjit Burman,
not the rest. Upon hulla Daulat Singh, Arvind Singh etc. came. By
the time they lifted him (deceased) he had died. However, during
cross-examination in paragraph 5, PW 9 has specifically admitted
that accused appellant Pawan Yadav was not present and he has
not killed Mani Babu.
7.8. PW 10 Navin Kumar Singh is the informant,
who is the brother of the deceased. The said witness has stated in
his examination-in-chief in paragraph 1, 2 and 3 that the incident
took place on 18.04.2015 at about 7:00 PM. When he went to the
brick kiln from market, he heard the screams of his brother Mani
Singh to save him. He saw two persons killing him. They were
Sirajul Mian and Pushanjit Burman, who were carrying knife,
dabiya and dagger. They stabbed his brother in the stomach, chest
and thighs. PW 10 thereafter raised alarm upon which Daulat
Singh, Arvind Singh, Uday Singh and Ajay Singh etc. came there,
whereafter both the miscreants fled away. At that time, the
deceased was alive, while on the way to Sonbarsha Hospital, he
passed away. Thereafter, PW 10 went to the police station with the
dead body of his brother and gave written application.
However, it is pertinent to note that PW 10 has admitted
in paragraph 5 of his cross-examination that he reached at the
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
15/29
place of occurrence after 10-15 minutes. Further, he has admitted
in paragraph 7 of his cross-examination that accused appellant
Pawan Yadav was not present at the place of occurrence and he
had not seen him.
8. From the aforesaid evidence led by the
prosecution, it transpires that the prosecution has projected PWs. 9
and 10 as eye-witnesses, however, from the cross-examination of
PW 10-informant, it is clear that he reached at the place of
occurrence after 10-15 minutes and, therefore, he cannot be termed
as an eye-witness. Further, both these witnesses, i.e., PWs. 9 and
10, have specifically admitted that Pawan Yadav was not present at
the place of occurrence and he had not killed Mani Singh.
8.1. It is pertinent to observe, at this stage, that in
the present case, the prosecution has failed to examine the IO who
had conducted the investigation. It is the specific contention raised
by learned counsel for the appellants that because of non-
examination of the IO, serious prejudice has been caused to the
defence. With a view to appreciate the aforesaid submission, we
have gone through the reasoning recorded by the trial court while
passing the impugned judgment and order. It is revealed from the
observation (IX), (X), (A) {mentioned as (B)}, (B) and (C) made
by the trial court that the trial court has placed reliance upon the
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
16/29
confession made by Sirajul Mian as well as Pushanjit Burman
(appellant herein) before the IO and also placed reliance upon the
production of weapon, i.e., knife and sickle by the aforesaid two
accused. It is relevant to note that aforesaid weapons were not
produced before the Court nor the IO, before whom the confession
was made by the accused, was examined by the prosecution. Thus,
in the facts and circumstances of the present case, it can be said
that because of non-examination of the IO, prejudice has been
caused to the defence. On what basis the trial court has made the
observation with regard to the production of the weapons as well
as confessional statement of the accused before the IO is not
revealed from the evidence of the prosecution. It appears that the
trial court has referred the case diary.
8.2. At this stage, we would like to refer the
decision rendered by the Hon’ble Supreme Court in the case of
Kamlakar Patil v. State of Maharashtra, reported in (2013) 6
SCC 417, wherein the Hon’ble Supreme Court has observed in
paragraph 18 as under: –
“18. Keeping in view the aforesaid
position of law, the testimony of PW 1 has to be
appreciated. He has admitted his signature in the
FIR but has given the excuse that it was taken on a
blank paper. The same could have been clarified by
the investigating officer, but for some reason, the
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
17/29investigating officer has not been examined by the
prosecution. It is an accepted principle that non-
examination of the investigating officer is not fatal to
the prosecution case. In Behari Prasad v. State of
Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] ,
this Court has stated that non-examination of the
investigating officer is not fatal to the prosecution
case, especially, when no prejudice is likely to be
suffered by the accused. In Bahadur Naik v. State of
Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri) 1186] , it
has been opined that when no material
contradictions have been brought out, then non-
examination of the investigating officer as a witness
for the prosecution is of no consequence and under
such circumstances, no prejudice is caused to the
accused. It is worthy to note that neither the trial
Judge nor the High Court has delved into the issue of
non-examination of the investigating officer. On a
perusal of the entire material brought on record, we
find that no explanation has been offered. The
present case is one where we are inclined to think so
especially when the informant has stated that the
signature was taken while he was in a drunken state,
the panch witness had turned hostile and some of the
evidence adduced in the court did not find place in
the statement recorded under Section 161 of the
Code. Thus, this Court in Arvind Singh v. State of
Bihar [(2001) 6 SCC 407 : 2001 SCC (Cri)
1148], Rattanlal v. State of J&K [(2007) 13 SCC 18 :
(2009) 2 SCC (Cri) 349] and Ravishwar
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
18/29Manjhi v. State of Jharkhand [(2008) 16 SCC 561 :
(2010) 4 SCC (Cri) 50], has explained certain
circumstances where the examination of investigating
officer becomes vital. We are disposed to think that
the present case is one where the investigating officer
should have been examined and his non-examination
creates a lacuna in the case of the prosecution.”
8.3. From the aforesaid decision rendered by the
Hon’ble Supreme Court, it can be said that non-examination of the
IO is not fatal to the prosecution’s case when no prejudice is likely
to be suffered by the accused. However, if the defence has suffered
prejudice because of non-examination of the IO, it becomes fatal.
8.4. Keeping in view the aforesaid decision, if the
evidence and the facts of the present case as discussed hereinabove
are examined, we are of the view that, in the present case, because
of non-examination of the IO, prejudice has been caused to the
defence.
8.5. It would also reveal from the evidence led by
the prosecution that prosecution has also failed to prove the motive
on the part of the accused to kill the deceased.
8.6. As observed hereinabove, even the prosecution
witnesses, i.e., PW 9 and PW 10 both have specifically admitted
during cross-examination that Pawan Yadav was not present and
he has not killed Mani Singh. Further, so-called confessional
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
19/29
statement was made by accused Sirajul Mian and Pushanjit
Burman and not by Pawan Yadav. Even the weapons were
produced, as per the observation of the trial court, by the two other
accused and not Pawan Yadav, despite which Pawan Yadav has
been convicted by the trial court.
8.7. We have also gone through the further
statement of appellants recorded under Section 313 of the Code.
The trial court has put following question to both the accused
persons: –
“प्रशन : कया आपलोग गवाहो का बयान सु ना है ? (Have you
herd the evidence of the witnesses)
उतर : हा (Yes)
प्रशन : गवाहो का कहना है कक आपलोग दी. 18.04.2015
रोज शकनवार को सं धया 7.00 बजे गनौरी ईट भट् टा कचमनी पर मकण प.
कसं ह को छुड, दकतया से हमला कर हतया कर कदया? (It has been
deposed by the witnesses that you people have killed Mani Prasad
Singh by assaulting him with Chhura, Dabiya on 18.04.2015
(Saturday) at about 7.00 in the evening at Ganauri brick klin).
उतर: गलत है (It is false)
प्रशन : सफाई मे कया कहना है (Do you have to say
anything in defence)
उतर : मै कनदोरष हं “ू (I am innocent)
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
20/298.8. From the aforesaid, it can be said that the trial
court has failed to put all the incriminating evidence led by the
prosecution to the accused and because of the same, prejudice has
been caused to the accused.
8.9 At this stage, we would like to refer to the
decision rendered by the Hon’ble Supreme Court in the case of
Raj Kumar @ Suman Vs. State (NCT of Delhi), rendered on
11.05.2023 in Cr. Appeal No. 1471 of 2023, arising out of S.L.P.
(Cri.) No.11256 of 2018, wherein the Hon’ble Supreme Court has
observed in paragraph 13 to 16 as under:
“13. Then we come to the decision of this Court in
the case of S. Harnam Singh v. State (Delhi
Admn.). In paragraph 22, this Court held thus :
“22. Section 342 of the Code of Criminal
Procedure, 1898, casts a duty on the court to
put, at any enquiry or trial, questions to the
accused for the purpose of enabling him to
explain any circumstances appearing in the
evidence against him. It follows as a
necessary corollary therefrom that each
material circumstance appearing in evidence
against the accused is required to be put to
him specifically, distinctly and separately.
Failure to do so amounts to a serious
irregularity vitiating the trial if it is shown to
have prejudiced the accused. If the
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
21/29irregularity does not, in fact, occasion a
failure of justice, it is curable under Section
537, of the Code.”
(emphasis added)
14. Then we come to a decision in the case of Samsul
Haque relied upon by the learned counsel for the
appellant. In paragraphs 21 to 23, this Court held
thus :
“21. The most vital aspect, in our view, and
what drives the nail in the coffin in the case of
the prosecution is the manner in which the
court put the case to Accused 9, and the
statement recorded under Section 313 CrPC.
To say the least it is perfunctory.
22. It is trite to say that, in view of the
judgments referred to by the learned Senior
Counsel, aforesaid, the incriminating
material is to be put to the accused so that the
accused gets a fair chance to defend himself.
This is in recognition of the principles of audi
alteram partem. Apart from the judgments
referred to aforesaid by the learned Senior
Counsel, we may usefully refer to the judgment
of this Court in Asraf Ali v. State of Assam
[ Asraf Ali v. State of Assam, (2008) 16 SCC
328 : (2010) 4 SCC (Cri) 278]. The relevant
observations are in the following paragraphs :
(SCC p. 334, paras 21-22)
” 21. Section 313 of the Code casts a duty on
the court to put in an enquiry or trial questions
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
22/29to the accused for the purpose of enabling him
to explain any of the circumstances appearing
in the evidence against him. It follows as
necessary corollary therefrom that each
material circumstance appearing in the
evidence against the accused is required to be
put to him specifically, distinctly and
separately and failure to do so amounts to a
serious irregularity vitiating trial, if it is
shown that the accused was prejudiced.
22. The object of Section 313 of the Code is
to establish a direct dialogue between the
Court and the accused. If a point in the
evidence is important against the accused,
and the conviction is intended to be based
upon it, it is right and proper that the accused
should be questioned about the matter and be
given an opportunity of explaining it. Where
no specific question has been put by the trial
court on an inculpatory material in the
prosecution evidence, it would vitiate the trial.
Of course, all these are subject to rider
whether they have caused miscarriage of
justice or prejudice. This Court also expressed
a similar view in S. Harnam Singh v. State
(Delhi Admn.) [S. Harnam Singh v. State
(Delhi Admn.), (1976) 2 SCC 819 : 1976 SCC
(Cri) 324] while dealing with Section 342 of
the Criminal Procedure Code, 1898
(corresponding to Section 313 of the Code).
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
23/29
Non-indication of inculpatory material in its
relevant facets by the trial court to the accused
adds to the vulnerability of the prosecution
case. Recording of a statement of the accused
under Section 313 is not a purposeless
exercise.”
23. While making the aforesaid observations,
this Court also referred to its earlier judgment
of the three-judge Bench in Shivaji Sahabrao
Bobade v. State of Maharashtra [ Shivaji
Sahabrao Bobade v. State of Maharashtra,
(1973) 2 SCC 793 : 1973 SCC (Cri) 1033],
which considered the fallout of the omission to
put to the accused a question on a vital
circumstance appearing against him in the
prosecution evidence, and the requirement that
the accused’s attention should be drawn to
every inculpatory material so as to enable him
to explain it. Ordinarily, in such a situation,
such material as not put to the accused must
be eschewed. No doubt, it is recognised, that
where there is a perfunctory examination
under Section 313 CrPC, the matter is capable
of being remitted to the trial court, with the
direction to retry from the stage at which the
prosecution was closed [ Shivaji Sahabrao
Bobade v. State of Maharashtra, (1973) 2 SCC
793 : 1973 SCC (Cri) 1033].”
(emphasis added)
15. Learned counsel for the respondent
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
24/29
also relied upon a decision of this Court in the case
of Vahitha v. State of Tamil Nadu. This case does
not deal with the consequences of the omission made
while questioning the accused under Section 313 of
CrPC. This deals only with a contingency where
evidence of the prosecution witnesses goes
unchallenged. Now we come to the decision of this
Court in the case of Satyavir Singh relied upon by
the learned counsel for the respondent. The decision
holds that the challenge to the conviction based on
non-compliance with Section 313 of CrPC for the
first time in the appeal cannot be entertained unless
the accused demonstrates that prejudice has been
caused to him. If an objection is raised at the
earliest, the defect can be cured by recording an
additional statement of the concerned accused. The
sum and substance of the said decision is that such a
long delay can be a factor in deciding whether the
trial is vitiated. Moreover, what is binding is the
decision of the larger Bench in the case of Shivaji
Sahabrao Bobade, which lays down that if there is
prejudice caused to the accused resulting in failure of
justice, the trial will vitiate.
16. The law consistently laid down by
this Court can be summarized as under:
(i) It is the duty of the Trial Court to put each
material circumstance appearing in the
evidence against the accused specifically,
distinctively and separately. The material
circumstance means the circumstance or the
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
25/29material on the basis of which the prosecution
is seeking his conviction;
(ii) The object of examination of the accused
under Section 313 is to enable the accused to
explain any circumstance appearing against
him in the evidence;
(iii) The Court must ordinarily eschew
material circumstances not put to the accused
from consideration while dealing with the case
of the particular accused;
(iv) The failure to put material circumstances
to the accused amounts to a serious
irregularity. It will vitiate the trial if it is
shown to have prejudiced the accused;
(v) If any irregularity in putting the material
circumstance to the accused does not result in
failure of justice, it becomes a curable defect.
However, while deciding whether the defect
can be cured, one of the considerations will be
the passage of time from the date of the
incident;
(vi) In case such irregularity is curable, even
the appellate court can question the accused
on the material circumstance which is not put
to him; and
(vii) In a given case, the case can be remanded
to the Trial Court from the stage of recording
the supplementary statement of the concerned
accused under Section 313 of CrPC.
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
26/29
(viii) While deciding the question whether
prejudice has been caused to the accused
because of the omission, the delay in raising
the contention is only one of the several
factors to be considered.”
8.10. At this stage, we would also like to refer and
rely upon the decision rendered by the Hon’ble Supreme Court in
the case of Maheshwar Tigga Vs. State of Jharkhand, reported in
(2020) 10 SCC 108, wherein the Hon’ble Supreme Court has
observed in paragraphs 7 and 8 as under:
“7. A bare perusal of the examination of the
accused under Section 313 CrPC reveals it to
be extremely casual and perfunctory in nature.
Three capsuled questions only were asked to
the appellant as follows which he denied:
“Question 1. There is a witness against you
that when the informant V. Anshumala Tigga
was going to school you were hiding near
Tomra canal and after finding the informant in
isolation you forced her to strip naked on
knifepoint and raped her.
Question 2. After the rape when the informant
ran to her home crying to inform her parents
about the incident and when the parents of the
informant came to you to inquire about the
incident, you told them that “if I have
committed rape then I will keep her as my
wife”.
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
27/29
Question 3. On your instruction, the
informant’s parents performed the “Lota Paani”
ceremony of the informant, in which the
informant as well as your parents were present,
also in the said ceremony your parents had
gifted the informant a saree and a blouse and
the informant’s parents had also gifted you
some clothes.”
8. It stands well settled that circumstances not
put to an accused under Section 313 CrPC
cannot be used against him, and must be
excluded from consideration. In a criminal
trial, the importance of the questions put to an
accused are basic to the principles of natural
justice as it provides him the opportunity not
only to furnish his defence, but also to explain
the incriminating circumstances against him. A
probable defence raised by an accused is
sufficient to rebut the accusation without the
requirement of proof beyond reasonable
doubt.”
8.11. From the aforesaid decision rendered by the
Hon’ble Supreme Court, it can be said that it is the duty of the
Trial Court to put each material circumstance appearing in the
evidence against the accused specifically, distinctly and
separately. The material circumstance means the circumstance or
the material on the basis of which the prosecution is seeking his
conviction. The object of examination of the accused under
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
28/29
Section 313 of the Code is to enable the accused to explain any
circumstances appearing against them in the evidence. The failure
to put material circumstances to the accused amounts to a serious
irregularity and it will vitiate the trial if it is shown to have
prejudiced the accused.
8.12. Keeping in view the aforesaid decision, once
again, if the statement of the accused recorded under Section 313
of the Code is examined, we are of the view that the court has not
put the incriminating circumstances to the accused, as a result of
which prejudice has been caused to the appellants-accused as
contended by learned counsel appearing for the appellants.
9. In view of the aforesaid facts and
circumstances of the present case and the discussion made
hereinabove, we are of the view that the prosecution has miserably
failed to prove the case against the appellants beyond reasonable
doubt, despite which the trial court has passed the impugned
judgment and order of conviction and sentence. Hence, the same
are required to be quashed and set aside.
10. Accordingly, both these appeals stand allowed.
11. The impugned judgment of conviction dated
13.12.2017 and the order of sentence dated 03.01.2018 rendered
by learned Additional Sessions Judge-II, Saharsa, in Sessions Trial
Patna High Court CR. APP (DB) No.1085 of 2018 dt.08-01-2025
29/29
No. 247 of 2015, arising out of Sonbarsa Raj P.S. Case No. 52 of
2015 (G.R. No. 940 of 2015) are quashed and set aside.
12. The appellant of Cr. Appeal (D.B.) No. 1085 of
2018, namely, Pushanjit Burman @ Prasenjit Burman @ Prasenjit
Verma, is in custody. He is directed to be released from jail
custody forthwith, if his presence is not required in any other case.
13. The appellant of Cr. Appeal (D.B.) No. 90 of
2018, namely, Pawan Yadav, is on bail. He is discharged from the
liabilities of his bail-bonds.
(Vipul M. Pancholi, J)
(Dr. Anshuman, J)
Pawan/-
AFR/NAFR AFR CAV DATE N/A Uploading Date 10.01.2025. Transmission Date 10.01.2025.