IMPORTANT POINT
All the incriminating circumstances are required to be put to appellant accused in his examination u/s 313 Cr. P.C. so that he can other explanation in respect of same.

R.K. Datta, J - The appellant was tried for murder of his wife and also for causing the evidence to disappear under Sections 302 and 201 of the Indian Penal Code. He was found guilty of both the charges and was sentenced to undergo life imprisonment under Section 302 of the Indian Penal Code, as also rigorous imprisonment for two years under Section 201 of the Indian Penal Code besides imposition of. The substantive sentences were ordered to run concurrently. The appellant challenges said conviction and sentence in this appeal.

2. Mr. M.R. Daga the learned Advocate for the appellant urged before us that the material circumstances upon which reliance has been placed by the trial Court in the judgment have not at all been put to the accused-appellant under Section 313 of the Code of Criminal Procedure and as such the same cannot be used against the appellant. He has particularly pointed out that the evidence of Mojes s/o Ishwardas Josef (P.W. 5), upon which conviction is based has not at all been put to the appellant. It is also pointed out that seizure of clothes of the appellant report of the Chemical Analyser letter Exh. 23 report Exh. 23A, letter Exh. 29 and report Exh. 29-A though admitted have not at all been put to the appellant. Mr. Mirza the learned APP submits that said facts and circumstances being material and relevant and against the appellant should have been put to the accused appellant. According to him said circumstances be put to the appellant accused by this Court and thereafter the matter should be heard.

3. After going through the evidence we and that many incriminating circumstances which have been used by the trial Court have not been put to the appellant-accused. It is now well settled by plethora of judgments that all the incriminating circumstances are required to be put to the appellant-accused so that he can offer explanation in respect of the same. The trial Court has relied upon the evidence of Mojes Josef (P.W. 5). but no circumstance from his evidence is put to the appellant accused. Likewise seizure of clothes of the appellant-accused as also report of the Chemical Analysex: have not been put to the appellant-accused under Section 313 of the Code of Criminal Procedure. Letters Exhs. 23 and 29 as also Medical Examination reports Exhs. 23-A and 29-A though are admitted documents have also not been put to the appellant-accused. There are also other incriminating circumstances which have come on record and which have not been put to the appellant accused. Therefore, it is considered necessary that the matter be remanded back to the trial Court so that all the incriminating circumstances are put to the appellant-accused under Section 313 of the Code of Criminal, Procedure. We tail to understand as to how the Sessions Judge Mr. R.S. Gaikaiwari has failed to put all incriminating circumstances to the appellant-accused under Section 313 of Cr. P.C. We also fail to understand as to why the Public Prosecutor conducting the trial did not point out to the Sessions Judge that all the incriminating circumstances have not been put to the appellant-accused.

In our opinion besides duality cast on the Sessions Judge it is the duty of the Public Prosecutor to ensure that all the incriminating circumstances are put to the appellant-accused. In case the same are not put by the trial Court the Public Prosecutor conducted the prosecution may either make oral request or me written application for the said purpose.

4. The Apex Court in State of Maharashtra v. Sukhdeo Singh and another1 has observed that Section 313 of the Code of Criminal Procedure imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put 10 the accused and his response Is solicited.

5. In Arvind D. Choure v. State or Maharashtra2 to which one of us (Battaj) was party. t,his aspect has been dealt with in detail.

6. It is also noticed that information in relation to witness Kusum (P.W. 2) in res