Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Gau) 867

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, SANJEEV KUMAR SHARMA, JJ.
Bapon Kar, S/o. Late Swapan Kar – Appellant
Versus
The State Of Assam, Represented By The Public Prosecutor And Anr – Respondent
Crl.A. 405 of 2019
Decided On : 18-05-2026

Advocates Appeared:
For the Appellant :Mr. N Mahajan Advocate
For the Respondent: mrs. A begum, addl. Pp

The failure to put specific incriminating evidence to the accused during his examination under Section 313 Cr.P.C. causes implicit material prejudice, violating the right to a fair trial and necessitating a remand for the limited purpose of curing the procedural defect.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 313 - Examination of accused - Incriminating evidence - Failure to put incriminating circumstances to the accused during examination - Consequences thereof - It is a mandatory requirement that all incriminating circumstances appearing in evidence against an accused must be put to him to provide an opportunity to offer an explanation - Failure to bring such vital evidence to the notice of the accused results in implicit prejudice and a failure of justice - The trial court cannot base a conviction on evidence that was not put to the accused during such examination. (Paras 11, 12, 15)

(B) Criminal Trial - Remand - Procedure for curing defects in examination under Section 313 - Where a material incriminating circumstance has been omitted during the examination of the accused, the appellate court may set aside the judgment and remand the matter for the limited purpose of conducting an additional examination regarding those specific circumstances to ensure compliance with legal safeguards. (Paras 16, 17, 18)

Facts of the case:
The appellant was convicted for murder under the penal code, sentenced to rigorous imprisonment for life, and ordered to pay a fine. The conviction was based upon circumstantial evidence, specifically the testimony of a witness stating the deceased and the accused were sleeping together in the same room on the night of the incident. This incriminating circumstance was not put to the accused during his statement recorded under section 313 of the Code of Criminal Procedure.

Findings of Court:
The reliance of the trial court upon evidence not presented to the accused during his mandatory examination caused substantial prejudice to his defense. Because the omission involved a vital piece of evidence central to the guilt finding, the prejudice is deemed implicit, thereby necessitating a procedural correction to preserve the integrity of the trial.

Issues: Whether the failure to put key incriminating evidence to an accused during his examination under Section 313 of the Code of Criminal Procedure constitutes a sufficient ground to set aside an order of conviction and mandate a remand for further proceedings.

Ratio Decidendi: The provision requiring the questioning of an accused on incriminating evidence is a fundamental safeguard of criminal law. When the trial court relies on a circumstance that was not put to the accused, it violates the right to a fair hearing. To rectify this without necessarily acquitting the accused, the matter must be remanded for the limited purpose of conducting an additional examination under Section 313 to allow the accused to address the specific incriminating evidence found.

Result: Appeal allowed; conviction set aside and matter remanded to the trial court for a limited further examination of the accused under Section 313, followed by a fresh judgment.

Table of Content
1. factual background and procedural trial history of the criminal case. (Para 1 , 2 , 3 , 4 , 5 , 6)
2. trial court's reliance on circumstantial evidence to reach a conviction. (Para 7 , 8)
3. arguments concerning section 313 crpc omission and section 106 evidence act burden. (Para 9 , 10)
4. legal requirement that incriminating circumstances must be put to the accused under section 313 crpc. (Para 11 , 12 , 13 , 14)
5. mandatory remand for re-examination when vital incriminating evidence was omitted. (Para 15 , 16)
6. procedural directions for trial court remand and disposal of the appeal. (Para 17 , 18 , 19 , 20 , 21 , 22)

Judgment :

Sanjeev Kumar Sharma, J.

Heard Mr. N Mahajan, learned counsel for the appellant. Also heard Mrs. A Begum, learned Addl. Public Prosecutor for the State.

2. This appeal is directed against the Judgment dated 09.08.0219, passed by the learned Sessions Judge, Nogaon, in Sessions Case No. 64(N)/2014, convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-, in default further imprisonment for 6 months.

3. The prosecution case in a nutshell is that the deceased wife was married to the appellant Bapon Kar, about 3 years prior to the alleged occurrence which took place on 15.04.2014, and out of the said wedlock, a female child was born to them, who was aged about 6 months at the time of occurrence. Although initially there was a good relation between the two i.e. husband and wife, the husband/appellant subsequently started demanding dowry and used to torture the deceased for the said purpose despite which the victim remained with the appellant.

4. It is the further case of the prosecution that the appellant, during the night-time, killed the deceased by strangulating her in their bedroom.

5. An FIR was lodged on 15.04.2014 before the O.C, Roha Police Station, and upon registration of Roha P.S Case No. 75/2014 under Section 304(B)/34 IPC, investigation commenced, culminating in a charge-sheet, whereafter, the learned Sessions Judge, Nagaon framed charges against the present appellant as well as his mother, co-accused Dipa Kar under Section 302/304 . In course of trial, prosecution adduced evidence through 7 witnesses (PWs), at the end of which the accused persons were examined under Section 313 Cr.P.C., and the defence did not adduce any evidence in the case.

6. Upon consideration of the evidence and hearing the rival arguments, the learned trial court came to the view that Section 304(B) IPC, relating to dowry death, is not attracted in the present case, but found the present appellant guilty under Section 302 , while the co-accused, Dipa Kar, was acquitted of the charge under Sections 304 (B)/302/34 .

7. A perusal of the impugned judgment would go to show that the learned trial court had, amongst other material, relied upon the evidence of PW-6, who, in his cross-examination stated that on the relevant night the accused and the deceased were sleeping in their room. The learned trial court came to the conclusion that there is no evidence that any other person had access to the same room on the relevant night, which negated the possibility of any person other than the present appellant having committed the murder of the deceased.

8. The learned trial court also relied on the evidence of PW-1, who stated that he found the accused in his house. It may be mentioned here that PW-6 is one of the brothers of the accused who also stated that the accused appellant, Bapon Kar and his wife, deceased Simpi Baruah, used to live separately in a separate room in the same courtyard. Further, from the evidence of PW-3 and PW-6, the learned trial court came to the conclusion that the dead body was found lying on the bed in the room of the accused appellant, which was also confirmed by PW-7, the I.O., who visited the house. The cause of death was also proved by the medical evidence, as held by the learned trial court.

9. Learned counsel