Sk. Anowar vs State Of West Bengal

We find although most of the prosecution witnesses have been declared hostile, the trial judge had relied on a dying declaration of the victim recorded

by P.W.15, Dr. Ashok Kr. Maity who had treated the victim at Garh Moyna B. P. H. C. Evidence of P.W.15 shows that on 5.4.2013 he examined

one Bistu Ghorai with history of burn injury due to pouring of hot mustard oil by Sk. Anowar son of Md. Of Shyampur, Moyna at 7.30 P.M.

Patient was brought by one Ratan Maity, P.W.7. In cross-examination, the said witness clarified that the aforesaid dying declaration was made by

none but the patient as no other specific name is stated in the dying declaration. He also deposed that the patient was conscious and co-operative at

the material point of time. Ratan Maity, P.W.7, however, was declared hostile and has not supported the dying declaration.

Learned Counsel while assailing the said dying declaration on various other infirmities has brought to our notice to the fact that this circumstance had

not been put to the appellant during his examination under Section 313 of the Code of Criminal Procedure. We have examined the statement of the

appellant under Section 313 of the Code of Criminal Procedure and we are in agreement with the submissions of the learned Counsel appearing for

the appellant.

It is settled law that any circumstance which may be used against an accused must be placed to him during his examination under Section 313 of the

Code of Criminal Procedure. Such exercise is not an empty formality but a facet of natural justice and fair procedure. We are not unmindful of the

fact that every infraction of the aforesaid requirement does not vitiate trial. However, if such infraction is of a grave nature and prejudices the

accused or occasions failure to justice it shall result in a mistrial.

In the instant case, we note that most of the eye witnesses have been declared hostile and have not supported the prosecution case. In this backdrop

the dying declaration if believed by the court would be the most vital circumstance pointing to the guilt of the appellant. Such circumstance had not

been placed to him during his examination under Section 313 Cr.P.C. No doubt, this has caused prejudice to the appellant. However, in view of the

fact that the offence relates to one of murder, we are not inclined to grant an order of acquittal merely on the score of inartistic examination of the

appellant under Section 313 of the Code of Criminal Procedure. That apart, it is no longer res integra that the appellate court can itself seek

explanation from the appellant with regard to any circumstance which had been omitted to be put to him in the course of trial [see State of Punjab vs.

Naib Din, (2001) 8 SCC 578].

Accordingly, we direct the Sessions Judge to conduct further examination of the appellant under Section 313 of the Code of Criminal Procedure by

putting the aforesaid question relating to the dying declaration of the victim (Exbt. 11) as transpiring from the evidence of P.W.15 and place the record

of such further examination before this Court on the next date of hearing. The lower court records be sent to the Sessions Judge at once and he is

directed to conclude the entire exercise within four weeks from receipt of lower Court records.

Let the hearing of this matter be adjourned till 10th August, 2018. Department is directed to forthwith send the lower court records along with the

copy of this order to the Sessions Judge for due compliance and the Sessions Judge shall remit the lower court records along with the records of

further examination of the appellant under Section 313 of the Code of Criminal Procedure before this Court immediately after conclusion of such

exercise. Department shall place the entire records before this Court on the next date of hearing.