SUDHANSHU DHULIA, J.

1. This criminal jail appeal has been filed by the appellant challenging the judgment and order dated 26.06.2013 passed by the Sessions Judge, Pithoragarh in Sessions Trial No.23 of 2012 “State Vs. Bhagwan Singh”, whereby the accused/appellant has been convicted under Section 302 of IPC and has been sentenced for rigorous imprisonment for life with a fine of Rs.50,000/- (Rupees Fifty Thousand Only), and in case of default in payment of fine, he shall undergo six months additional simple imprisonment.

2. The appellant is presently in jail. As the appellant was not able to engage a counsel to defend himself, the trial court under the provisions of Section 304 of the Code of Criminal Procedure (from hereinafter referred to as “Cr.P.C. ”) provided a defence counsel to the accused, who was a practicing Advocate in the District Court at Pithoragarh. The appellant is being represented by an Amicus Curiae before this Court Sri Kailash Chandra Tiwari.

3. At the time when we were hearing this appeal against conviction, an aspect has been raised before us by the Amicus Curiae, which we propose to deal first with before we proceed any further in the matter.

4. The case of the prosecution is that the accused/appellant who was the neighbour of the complainant had assaulted complainant’s son with an axe, and killed him. The incident happened in the house of the accused/appellant at about 8:30 P.M., on 10.08.2012. There are eye witnesses of the incident in the shape of the complainant and others.

5. The prosecution in order to prove its case has examined as many as seven witnesses. After all the witnesses of the prosecution were examined, instead of putting questions to the accused in terms of Section 313 (1) (b) of Cr.P.C., the Court, on its own motion, asked the accused, (through his counsel) to give written statement under sub-section (5) of Section 313 Cr.P.C., as the Trial Court was of the opinion that it would be sufficient compliance of Section 313 of Cr.P.C. The appellant/accused was convicted under Section 302 of IPC and sentenced for life imprisonment.

6. After hearing the learned counsel for the appellant as well as the learned State Counsel at length, we are of the considered opinion that there has been a procedural lapse in the present case, as under the facts and circumstances of the case merely asking the accused to submit his written statement under sub-section (5) of Section 313 of Cr.P.C. without the accused requesting for the same, particularly when there were no question answers either put to the accused under sub-section (1) (b) of Section 313 of Cr.P.C., nor were such questions prepared in a written form by the Court, with the help of the prosecutor and the defence counsel (as provided in sub-section (5) of Section 313 Cr.P.C. ).

7. Sub-section (5) has been inserted in Section 313 of Cr.P.C. by way of an amendment Act No. 5 of 2009. This amendment in turn was based on the 154th report of the Law Commission.

8. The Law Commission was of the view that Section 313 of Cr.P.C. is primarily based on the principle of natural justice and fair play. The provision empowers a trial Judge to give reasonable opportunity to the accused to give explanation of the incriminating facts and the evidences against him presented by the prosecution. The Law Commission was of the view that many a times mechanical and meaningless questions were being put, without the accused understanding the implications of the questions, though the provision envisages a meaningful and realistic role of the judges in the examination of the accused. The Law Commission was of the view that many a times questions are prepared by the Bench Clerk of the court in a mechanical and stereotyped manner. It suggests following changes:-

“5. In the Workshops held at various places the Judges and senior Advocates, while reiterating the need for this provision as a valuable safeguard to the accused in the trial processes, felt that with a view to elimina