MAIN POINT
Defective examination of accused u/s 313 does not by itself vitiate the trial unless accused is seriously prejudiced thereby.

Judgment :-

M.Y. Eqbal, J.

1. This appeal by special leave is directed against the judgment and order dated 4th February, 2009 passed by the High Court of Rajasthan at Jodhpur in D.B. Criminal Appeal No.304 of 2003 whereby the High Court partly allowed the appeal of the appellants and remanded the matter to the Trial Court for further trial.

2. The facts of the case in brief are that on 25.07.1999 at 2.00 P.M., one Mustaq Khan resident of Rajpura submitted a written typed report at Police Station Dudwakhara alleging inter alia that his two daughters Jumila and Bulkesh were married to two brothers Liyakat and Jakir of village Jhariya on 11.6.1993. After marriage, his daughters told that their father-in-law Ajeem Khan and mother-in-law Jannat harassed them for dowry, and therefore, as and when they used to come, the informant was giving necessary articles of dowry. It was further alleged that some three years ago, when Liyakat had gone abroad, a demand of Rs.40,000/- was made and the informant arranged to give the money after mortgaging his household articles. Still daughters were treated with cruelty, inasmuch as, they were not even given food. It is also alleged in his report that some two months ago, Liyakat, (husband of deceased daughter Jumila) returned back from abroad (Dubai) and raised a demand of she-buffalo, which was conveyed by Jumila to the effect that if she-buffalo is not given, she would be killed. However, the informant could manage a cow and sent his daughter with a cow to her in-laws house. Mr. Khan alleged in his report that on 23.7.1999, he received information that Jumila has died. Thereupon, he along with his brother Sattar Khan went to Jhariya, by which time it was already night and it started raining as well. The dead body of Jumila was already buried and the body was not shown to him. It is alleged that his other daughter Bulkesh was unconscious at that time, and therefore, they brought her with them.

3. On 24.7.1999, after gaining consciousness, Bulkesh disclosed that the three accused persons have murdered Jumila by throttling, which she had seen and consequently become unconscious. She also disclosed that the accused planned to kill her also but she does not know as to how she was not killed and that three persons gave beating and killed Jumila on account of her having taken cow instead of buffalo. On learning this, the informant Mustaq Khan along with his brother Sattar, Inayat Khan, Nawab Khan, Yakub Khan, Wahid Ali, Bhanwaru Khan and Kasam Khan went to Jhariya and narrated the things disclosed by Bulkesh. Thereupon, the three accused confessed their guilt that they had collectively killed Jumila, which was their mistake and they should be pardoned.

4. On the basis of his report, FIR No.76/99 was registered for offence under Sections 498-A, 304B and 201 of the Indian Penal Code, (in short, ‘IPC’). Postmortem of the dead body was got conducted, site map and Halat Mauka was prepared, statements of witnesses were recorded, documents were seized, accused persons were arrested. After the investigation, chargesheet was filed against accused persons in the competent Court.

5. The trial court framed charges for the offences under Sections 302 or in the alternative 302/34 read with Section 201 and 498A of the Indian Penal Code and the trial was commenced. During trial, statements of some five witnesses were recorded upto 9.5.2000. Thereafter, accused Liyakat could be arrested from Delhi Airport and fresh trial was conducted by re-examining the witnesses, whose statements had already been recorded. This fresh trial commenced on 9.10.2000, wherein the prosecution examined 13 witnesses to prove the charges and several documents including written report, site map, memo of dead body, Panchayatnama, statement of Inayat Khan, seizure memo, postmortem report etc. have been exhibited as evidence.

6. The statement of accused persons under Section 313 of the Code of Criminal Procedure (in short, ‘Cr.P.C.’) were recorded, wh