IMPORTANT POINT
If any irregularity in recording statement of accused u/s 313 Cr.P.C. was not pointed out before High Court and it did not show any prejudice caused to accused, it could not be raised in appeal before Supreme Court.

ORDER

The sole appellant was tried along with six other accused and the appellant and one another were found guilty by the Sessions Court for the offence of murder punishable under Sections 302/34 IPC. Both the convicted persons filed appeal and the High Court acquitted one of them and present appellant was found guilty under Section 304 and was sentenced to undergo seven years imprisonment.

2. The incident happened on 17.11.1974. Deceased Baijnath Singh son of PW-1 Lal Deo Singh was engaged in cutting leaves of banana. The case of the prosecution is that the appellant along with other co-accused came to the place of incident and the present appellant was armed with spear. The accused persons asked Baijnath why he was putting banana leaves near the house of the accused. The deceased gave some reply. The further case of the prosecution is that the present appellant thrust the spear in the abdomen of the deceased Baijnath Singh. Meanwhile, PW-1, PW-2 and others came to the scene of occurrence. PW-2 also was attacked by one of the accused. The injured Baijnath was taken to the hospital where he succumbed to the injuries. PW-1 later gave information to the police and the case was registered against the accused.

3. In the Sessions Court, 16 witnesses were examined. PWs 1, 2, 3 and 8 are the eye-witnesses. PW-1, the father of the deceased deposed that when his son was cutting banana leaves, the accused came there and picked up a quarrel with him and he saw the present appellant thrusting the spear on the abdomen of his son. PW-2, brother of PW-1 also came to the place of incident and saw the appellant causing injury to the deceased.

4. The counsel for the appellant submitted that there are series of contradictions between the evidence of PW-1 and PW-2. We do not think that the contradictions pointed out by the appellants counsel are sufficient to disbelieve their evidence, especially, when the presence of these two witnesses cannot be doubted. PW-2 sustained injury on his face and PW-3 and PW-8 also were in the house and came to the place of incident at the time of occurrence. PW-3 deposed that she could see that her son Baijnath in the plantation grove and doing work and there is evidence of the prosecution to prove that the present appellant caused injury to deceased Baijnath.

5. Counsel for the appellant pointed out that the Sessions Court committed serious error in not properly examining the accused under Section 313 Cr.P.C. our attention was drawn to the statement taken from the present appellant. Only three questions were put to the appellant. The first question was whether he heard the statement of witnesses and the second question was that the evidence given by witnesses showed that he committed the murder of the deceased and whether he had to say anything in defence. The questioning of the accused under Section 313 Cr.P.C. was done in the most unsatisfactory manner. Under Section 313 Cr.P.C. the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of question and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence agai