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2008 (7) TMI 1081 - SC - Indian LawsMurder - Challenge the judgment of a learned Single Judge for altered the conviction to Section 304 Part II - What is the object of examination of an accused u/s 313 of the Code? - HELD THAT:- The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab [1962 (7) TMI 38 - SUPREME COURT] Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. It is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in Clause (a) of Sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under Clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. In certain cases when there is perfunctory examination u/s 313 of the Code, the matter is remanded to the trial Court, with a direction to re-try from the stage at which the prosecution was closed. In the instant case, the questions put to the accused in his examination u/s 313 read as follows: The witnesses have stated in their evidence that at about 9.30 a.m. on the day of occurrence you caused severe injuries to Khairul Hoque by assaulting him on the head from behind with a piece of timber and that in the evening on the very day he succumbed to the injuries in Guwahati Medical College Hospital. You may say if you have any regarding the evidence. P.W. 10 Ahindra Kumar Kalita (S.I. of Police) has stated in his evidence that during his investigation into this case when you produced a piece of timber he seized it through Ext.4. You may say if you have any regarding this evidence. You may say if you have any as regards allegation of committing murder leveled against you and other evidence. You may adduce evidence in defence if you have any. Summon witnesses. As rightly contended by learned Counsel for the appellant no witness has stated that on the date of occurrence the accused had caused severe injury to the deceased by assaulting him on the head from behind. The circumstances which were relied upon by the trial Court to find the accused guilty were not specifically brought to the notice of the accused. Therefore, in essence, his examination u/s 313 of the Code was rendered an empty formality. On that count alone, the impugned judgment of the High Court cannot be sustained and is set aside. The conviction recorded stands set aside. The bail bond of the appellant who is on bail shall stand discharged. The appeal is allowed.
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