Failure to put vital incriminating evidence to the accused during examination under Section 313 Cr.P.C. causes material prejudice, necessitating a remand for additional examination and a fresh judgment to ensure a fair trial.

Whether the pronouncement is of the : N/A

operative part of the judgment ?

Whether the full judgment has been : Yes

pronounced?

JUDGMENT & ORDER (CAV)

(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 IPC. 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 IPC, while the co-accused, Dipa Kar, was acquitted of the charge under Sections 304 (B)/302/34 IPC.

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 l