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Circumstances that were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration: Meghalaya High Court

The Court is legally required to bring before the complainant and request his response to the incriminating circumstances. This rule is obligatory and imposes an essential obligation on the court and gives the convicted a corresponding right to explain all criminal information against him. Circumstances that have not been sent to the defendant in his investigation according to Section 313 of the CrPC cannot and must not be held against him. The judgement was passed by the High Court of Meghalaya in the case of Shri. Alphon Khardewsaw Vs. State of Meghalaya [Crl. A. No. 1 of 2018] by Single Bench consisting of Hon’ble Justice Justice Ranjit More & Justice W.Diengdoh.

The facts of the case are the accused had assaulted the deceased with a hammer, stones and an iron chain causing multiple fractured wounds on the head of the deceased and as a result, the deceased died on the spot instantaneously. The family members of the deceased on hearing the hue and cry of the deceased rushed to the spot while the accused persons fled away from the spot. During the investigation, it was found that a prima facie case under Section 302 r/w 34 IPC has well been established against both the accused and hence Charge-sheet under Section 302 IPC was filed.

Learned counsel for the petitioner submitted that there are inherent contradictions between the witnesses. He further submitted that though the prosecution in the Charge-sheet named 13 witnesses to establish their case against the appellant, but only 8 witnesses were examined. He stated that since the prosecution has not examined the Investigating Officer and the Doctor who conducted the autopsy on the deceased, the contradiction could not be brought on record and therefore, great prejudice is caused to the accused. It was also submitted that in the absence of medical evidence of the Doctor, the prosecution failed to prove that the death of the deceased was homicidal. He further submitted that benefit of the doubt has to be given to the appellant and impugned judgment and order may be quashed and set aside.

The court while allowing the petition observed that the court must bring the substance of the accusation to the accused to enable him to explain each circumstance appearing in the evidence against him. The provision of Section 313 CrPC is not only mandatory but it cast a duty upon the court to allow the appellant to explain each circumstance and incriminating evidence against him. Obviously, in the present case, this was not done and therefore in our considered opinion, great prejudice is caused to the accused.

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