The examination of the accused under Section 313 of the Cr.P.C is not a mere formality and incriminating circumstances must be asked to the accused. The accused's opportunity to explain incriminating evidence is essential for a fair trial.

JUDGMENT

Bibek Chaudhuri, J. - The judgment and order of conviction and sentence passed in Session Trial No.9(11) of 2017 arising out of POCSO Case No.25 of 2017 passed by the leaned Additional Sessions Judge, 2nd Court and the designated court under the POCSO Act, Raiganj, Uttar Dinajpur is assailed in the instant appeal.

2. The accused was convicted under Section 341/342/120B/354/363/34/506/509 of the IPC, Section 3(1)(r)/ 3(1)(s) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act and Section 3/10/21 of the POCSO Act. The learned trial judge passed the following sentence which is recorded hereinbelow in tabular form:-

3. At the time of hearing of the appeal the learned Advocate on record for the appellant did not take any step. Therefore, Ms. Meenal Sinha, learned Advocate was requested to assist the court in the hearing of the instant appeal on behalf of the appellant. The learned Advocate readily accepted the request made by this Court and she assists this Court on behalf of the appellant diligently with full devotion. The court at the outset appreciates her effort on behalf of the appellant.

4. Having heard the learned Advocate for the appellant as well as the Mr. Ranabir Roy Chowdhury, learned P.P-in-Charge this Court concurs with the submission made by the learned Advocate for the appellant that the learned trial judge committed gross error in course of examination of the accused persons under Section 313 of the Cr.P.C. Mr. Roy Chowdhury, also submits that only on this score the appeal should be allowed and the case should be remanded back to the trial court for proper examination of the accused persons under Section 313 of the Code of Criminal Procedure and delivery of judgment.

5. Ms. Meenal Sinha refers to the decision of the Hon'ble Supreme Court in Naval Kishore Sinha vs. State of Bihar reported at (2004) 7 SCC 502, it is held by the Hon'ble Supreme Court that the questioning of the accused under Section 313 of the Cr.P.C is not a mere formality but a part of fair trial where the accused gets the opportunity to explain his version on the incriminating evidence adduced by the witnesses on behalf of the prosecution during trial. Under Section 313 of the 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 questions and he should have been given opportunity to give his explanation. The practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, is deprecated 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 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 against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in slipshop manner, it may result in imperfect appreciation of evidence.

6. A Three Judges Bench of the Hon'ble Supreme Court in Maheshwar Tigga vs. State of Jharkhand reported in (2020) 10 SCC 108 observed and held that the circumstanced not put to an accused