IMPORTANT POINT
Where there is perfunctory examination under Section 313 Cr.P.C., matter is capable of being remitted to trial court from the stage at which prosecution was closed.

JUDGMENT

Ranjit More, J.—Heard Mr. K.C.Gautam, learned counsel for the appellant and Mr. K.Khan, learned Sr. PP for the respondents.

2. By the judgment and order dated 22-02-2018, passed in G.R.Case. No. 488 (A) of 1985, the learned Judge, District Council Court. Khasi Hills, Shillong convicted the present appellant, original accused No. 1 for an offence punishable under Section 302 IPC. The learned Judge, District Council Court thereafter, heard the appellant on the quantum of punishment on 07-03-2018 and by order dated 09-03-2018, directed him to suffer sentence for life imprisonment. The appellant by filing the above appeal, has challenged both the orders referred herein above.

3. The prosecution case in short is that in the night of 20-07-1985, at about 8p.m. the accused persons namely, Shri. Alphon Khardewsaw (present appellant) and Shri. Siren Marshiangbai of Tiriang had assaulted the deceased namely, U Drikshon Khardewsaw at Rwiang on the PWD main road 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 investigation, it was found that prima facie case under Section 302 r/w 34 IPC has well been established against both the accused and hence Charge-sheet No. 43/1985 under Section 302 IPC was filed. In the Charge-sheet, police named 13 witnesses.

4. The trial of the case started in the year 1992. In the course of the trial, the prosecution examined 8 (eight) witnesses between June 1993 to August, 1993 and from August 1993 till 2002, the court repeatedly issued summons to the remaining prosecution witnesses including the Investigating Officer of the case and the Doctor who conducted the post-mortem. However, the remaining witnesses despite repeated issuance of process by the trial court failed to appear. Consequently, these witnesses were dropped and prosecution evidence was treated to be closed. Thereafter, the statement of the accused was recorded under Section 313 CrPC in the month of December, 2003. Meanwhile, it appears from the record that accused No. 2, Shri. Siren Marshiangbai expired in the year 2006. Thereafter, defense examined their witnesses, DW-No.1 and DW-No. 2 in the month of September, 2006. The learned Judge, District Council Court thereafter, heard the argument of the prosecution and defense and by passing the impugned order, convicted and sentenced the accused No. 1 (present appellant).

5. Mr. K.C.Gautam, learned counsel for the appellant took us through the deposition of witnesses, especially the alleged eye witnesses, that is, PW-2, PW-3, PW-4 and PW-5 and submitted that there are inherent contradictions. He further submitted that though the prosecution in the Charge-sheet named 13(thirteen) witnesses to establish their case against the appellant, but only 8(eight) 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 appellant/accused. It was also submitted that in the absence of medical evidence of the Doctor, prosecution failed to prove that the death of the deceased was homicidal. Mr. Gautam further invited our attention to the statement of the appellant/accused under Section 313 CrPC and submitted that same is recorded in a perfunctory manner and thereby great prejudice is caused to the appellant/accused. In above circumstances, he submitted that benefit of doubt has to be given to the appellant and impugned judgment and order may be quashed and set aside. In order to support his submission, he relied upon the decision of the Apex Court in Bahadur Naik v. State of Bihar (2000) 9 SCC 153, the decision of the Division Bench of H