The mandatory nature of Section 313 Cr.P.C. and the duty of the trial court to afford the accused the opportunity available under the law.

Laxmi Kanta Mohapatra, CJ.

1. Both the appeals are directed against an order of acquittal recorded by the learned Addl. Sessions Judge, FTC Manipur East in ST Case No. 5/04/13/05. Government Cril. Appeal No. 2/2010 has been filed by the State of Manipur challenging the order of acquittal and Cril. Appeal No. 1 of 2010 has been filed by the daughter of the deceased challenging the very same order.

2. The case of the prosecution is that on 4.3.2002 at 7.30 PM one Bramhacharimayum Dhananjoy (informer) reported in writing to the Officer in-Charge, Imphal P.S. that his elder brother, the deceased, had left home at about 7 pm on 3.3.2002 to witness a musical concert at Keishampat Leimajam Leikai but did not return home in the night. Later, he was found killed by some unknown persons with cut injuries on his neck at the Ingkhol (homestead land) of one Phurailatpam Bedgarma Sharma of Sagolband Meino Leirak at about 6:30 AM of 4.3.2002. On the basis of such allegation contained in the FIR, a case was registered for commission of offence u/s 302 and 34 IPC and investigation was undertaken. After completion of the investigation, charge sheet was submitted against the respondent-accused alone for commission of offence under Section 302 of IPC.

3. In course of the trial, 22 witnesses were examined on behalf of the prosecution and none was examined on behalf of the defence. On analysis of the evidence adduced on behalf of the prosecution, the learned Addl. Sessions Judge, FTC, Manipur East did not find any material to record an order of conviction and accordingly acquitted the respondent of the charge.

4. In the present appeal, Shri R.S. Reisang, learned Sr. GA pointed out a serious defect in the procedure adopted by the learned Addl. Sessions Judge while conducting the trial. It was submitted by Mr. R.S. Reisang, learned Sr. GA that the statement of the accused was not recorded u/s 313 Cr.P.C. after closure of evidence from the side of the prosecution. We, therefore, without going into the merit of the case, examined the order sheets and were shocked to find that the learned Addl. Sessions Judge, FTC has adopted a procedure in conducting the trial unknown to law. We would, therefore, like to refer to several dates relevant for the purpose of deciding this question.

5. The first witness, PW-1, on behalf of the prosecution was examined on 11.6.2004. The I.O. of the case was examined as PW-20 on 6.1.2006. After examination of the I.O. was over, the trial was fixed to 7.1.2006 for cross-examination of the I.O. On 7.1.2006 PW-20, the I.O., was cross-examined and a prayer was made on behalf of the prosecution to close evidence from the side of the prosecution. Accepting such prayer, the learned Addl. Sessions Judge, FTC fixed the next date to 10.1.2006 for recording statement of the accused-respondent u/s 313 Cr.P.C. The statement of the accused-respondent was recorded u/s 313 Cr.P.C. on 10.1.2006. Thereafter, the case was taken up on 13.1.2006 and the learned Addl. Sessions Judge, fixed the case to 19.1.2006 for final argument. The learned Addl. PP concluded his argument on 25.1.2006 and the case was fixed for 28.1.2006 for argument from the side of the defence. Thereafter, the case suffered some adjournments and on 20.3.2006 the learned counsel appearing for the defence concluded his argument. Thereafter, the case was again fixed to 31.3.2006 for reply on behalf of the Addl. P.P. The case again suffered certain adjournments and on 17.7.06 when it was taken up, the learned Addl. Sessions Judge felt necessity of examining one of the charge sheet witness, namely Smt. Athokpam Ningol Senjam Apabi @ Tababi Devi, and issued summon. The said charge sheet witness was examined and cross examined on 27.9.2006 and was discharged. The learned Addl. Sessions Judge again, by order dt. 4.10.2006, directed appearance of the then JMIC, Imphal to be examined, she having recorded statement of P.W.21 u/s 164 Cr.P.C. The said JMIC was examined as PW-22 on 18.10