Krishna Mohan Das v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CRA(DB)/9/2022 Krishna Mohan Das Vs.

The State Mr. Gopala Binnu Kumar Ms. Vinita Devi ... for the appellant Ms. A.S.Zinu ... for the State April 9, 2024 [SR] Item No.16 The appeal is directed against the judgment of conviction dated August 31,2022 passed by learned Special Judge (POCSO Act), North and Middle Andaman, Mayabunder in Special POCSO G.R.Case No.11 of 2022, Special POCSO ST No.17 of 2022 and the order of sentence dated September 01, 2022 passed therein. By the impugned judgment of conviction, the appellant was found guilty of the offence punishable under section 4 of the Protection of Children from Sexual Offence Act, 2012. By the impugned order of sentence, the appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.

1,00,000/- out of which 90 per cent amount was directed to be paid to the survivor as compensation under section 357 of the Code of Criminal Procedure. In default of payment, the appellant was directed to undergo rigorous imprisonment for one more year. Learned advocate appearing for the appellant raises various issues with regard to the impugned judgment of conviction and order of sentence. In particular, he draws the attention of the Court to the examination of the appellant under section 313 of the Code of Criminal Procedure. He submits that the examination under section 313 of the Code Criminal Procedure is not an empty formality. By reason of the nature of questions put to the appellant, under section 313 of the Code of Criminal Procedure, the appellant was prejudiced.

perfunctory examination under section 313 of the Code of Criminal Procedure conducted by the learned Trial Judge. With regard to the scope and effect of the section 313 of the Code of Criminal Procedure, he relies upon (2015) 1 SCC 496 (Nar Singh vs. State of Haryana). He submits that in similar circumstances, the Coordinate Bench in CRM(DB) 2 of 2002 and CRM (DB) 18 of 2023 remanded the case for retrial. Learned advocate appearing for the State submits that, the prosecution was able to prove the guilt of the appellant beyond reasonable doubt. She submits that, all incriminating materials in evidence as against the appellant was put to the appellant in the examination under section 313 of the Code of Criminal Procedure. She submits that the impugned judgment of conviction and order of sentence should be upheld.

The appellant was tried in respect of the charge sheet dated August 17, 2022. In order to prove the case of the prosecution, 23 prosecution witnesses were examined. Several documents were marked as exhibits at the trial.

Incriminating materials which was produced as evidence as against the appellant was sought to be put to the appellant in examination under section 313 of the Code of Criminal Procedure. We perused the examination of the appellant under section 313 of the Code of Criminal Procedure conducted by the learned Trial Judge. We find that, in aggregate eight questions were put to the appellant. We also find that the maximum portion of the incriminating materials produced in evidence by the prosecution as against the appellant, was clubbed together in question no.3 and put to the appellant.

Nar Singh is of the following view with regard to section 313 of the Code of Criminal Procedure.

"30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate

court, courses available to the appellate court can be briefly summarised as under:- 30.1 Whenever a plea of non-compliance with Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;

30.2 In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.

30.3 If the appellate court is of the opinion that noncompliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness, if any and, dispose of the matter afresh;

30.4 The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused."

By reasons of the nature of the questions put to the appellant in his examination, under section 313 of the Code of Criminal Procedure by the learned Trial Judge, we are of the view that, that the appellant was prejudiced as it was difficult to understand the questions put to him in such examination. Moreover, in the facts and circumstances of the present case, we are of the view there was a failure of justice so far as the examination of the appellant under section 313 of the Code of Criminal Procedure was concerned. In Nanda Samanta @ Nada Lal Samanta and another (Supra), the Coordinate Bench in its judgment and order dated January 25, 2023 followed the ratio of Nar Singh (supra) and

remitted the matter for proceeding further from the stage under section 313 of the Code of Criminal Procedure. In such circumstances, we set aside the impugned judgment of conviction and the order of sentence. We request the learned Trial Judge to proceed with the trial from the stage of the examination of the appellant under section 313 of the Code of Criminal Procedure. Court is informed that the appellant is on bail. Such bail will continue for a period of four weeks from date or until further orders passed by the learned Trial Judge whichever is earlier. CRA(DB)/9/2022 is disposed of accordingly.

Let the trial court records be sent down along with the copy of this judgment and order to the Court forthwith. ( Debangsu Basak, J. ) ( Bibhas Ranjan De, J.)