Bhaskar Bhattacharya, J.@mdashThis appeal is at the instance of two convicts in respect of charges u/s 302/34 of the Indian Penal Code and is
directed against the findings of guilt dated 10th August, 1.999 and the consequent sentence dated 11th August, 1999 by which they were
sentenced to suffer imprisonment for life and pay a fine of Rs. 1000/- each. In default of payment of such fine, they were directed to undergo a
further imprisonment for a period of one month.
2. The facts giving rise to filing of this appeal may be summarised thus:
(a) At the instance of the Commandant, 140 Battalion of Border Security Force, a written complaint was lodged before the police that on July
31,1995 at about 19:30 hrs., one B.S.F. Constable named Basant Singh of his Unit was murdered at Bhutkirhat at a distance of about 150 yards
from the State High Way No. 12A by some unknown miscreants of Bhutkirhat on that day.
(b) On the basis of such complaint, Rajganj P.S. Case No. 61 of 1995 dated July 31, 1995 u/s 302/34 of the Indian Penal Code was initiated.
(c) After completion of investigations, ultimately, chargesheet u/s 302/34 of the Indian Penal Code was given against both the appellants herein.
Both of them pleaded ""not guilty"" and claimed to be tried.
(d) The prosecution produced as many as eighteen witnesses altogether including the Investigating Officer. Documents marked as Exbts. 1 to 8
were relied upon by the prosecution in support of its case. The accused decided not to lead any evidence in support of their respective defences.
(e) The learned Sessions Judge on the basis of materials on record arrived at the findings that although there was no eye-witness to the incident of
the murder, yet, as the appellants were ""last seen together with the deceased"" immediately before his death, the prosecution had been able to prove
by circumstantial evidence that the appellants committed the murder. Thus, on the basis of the alleged circumstantial evidence, both the appellants
were found to be guilty and as indicated earlier, were sentenced to suffer life imprisonment in addition to fine of Rs. 1000/-.
3. Being dissatisfied, the appellants have come up with the present appeal.
4. Mr. Dutt, the learned Senior Advocate appearing on behalf of the appellants has made threefold submission in support of this appeal.
5. According to Mr. Dutt, even if, we accept all the prosecution evidence to be true, there is no material to indict appellant No. 1 namely, Mongat
Ram Singh (hereinafter referred to as Mongat).
6. As regards the other appellant, namely, Baxis Singh (hereinafter referred to as Baxis), according to Mr. Dutt, the prosecution had failed to
prove any motive behind such murder and as such it will be unsafe to convict even Baxis on the basis of evidence adduced by the prosecution by
applying ""the last seen together"" theory.
7. According to Mr. Dutt, in order to convict a person on the basis of circumstantial evidence, motive behind the murder must be well-established.
Mr. Dutt contends that in this case, the only allegation against Baxis about the motive of murder is that he had illicit relation with the daughter-in-
law of the landlord of the premises where the appellants and the victim were staying as tenants, for which the victim after hearing about the
aforesaid illegal relationship from Mongat cautioned Baxis and for the above reason, Baxis was annoyed with victim.
8. According to Mr. Dutt, if on the basis of complaint by Mongat to the deceased, the latter admonished the appellant No. 2, in such a case, there
was no justification of inferring motive of murder of the deceased alone but Baxis should also be angry with Mongat, the other accused who
allegedly informed the victim about such relationship. But in this case, Mr. Dutt continues, the prosecution has charged both Mongat and Baxis as
the culprit which is a preposterous theory.
9. Mr. Dutt lastly contends that in the case before us, so far the questions put to the accused persons u/s 313 of the Code of Criminal Procedure
are concerned, those were improperly framed and for such inappropriate framing of questions the appellants have been prejudiced resulting in
unfair trial and consequent injustice. He, thus, prays for setting aside the order of conviction and the resultant sentences.
10. Mr. Roy, the learned Counsel appearing on behalf of the State-respondent at the very outset conceded before this Court that framing of
questions u/s 313 of the Code of Criminal Procedure was not proper. Mr. Roy, thus, submitted that this Court should remand the matter to the
learned Sessions Judge for retrial from the stage of framing questions u/s 313 of the Code of Criminal Procedure. This Court, Mr. Roy continues,
therefore, should give an opportunity to the appellants to disclose their defence or to explain the circumstances after directing the learned Trial
Judge to frame proper questions regarding involvement of the accused on the basis of evidence already adduced.
11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that so far Mongat is concerned, the
prosecution has miserably failed to make out any case whatsoever for implicating him in this case. As indicated earlier, there is no eye-witness of
the incident. According to PW-1, the widow of the deceased, on the critical night, immediately after coming back from office, the deceased left for
purchasing battery for his torch and immediately after he went away, she had seen Mongat who is also a tenant of the self-same premises to follow
the deceased.
12. PW-2, a shop owner of the locality, in his evidence stated that on 31sL July, 1995, in the evening the deceased who was his customer-came
to his shop and he found two other persons along with the deceased who were in civil dress. According to this witness, the two accused persons
were standing at a little distance from the shop while the deceased was paying his dues. Thereafter, he found the deceased to talk with the
appellants near a cycle repairing shop and all the three were proceeding towards canal. However, PW-18, the Investigating Officer in his cross-
examination admitted that PW-2 did not tell him that both the accused were standing at a little distance from his shop while the deceased was
paying his dues to him. The said Investigating Officer further admitted that the PW-2 did not tell him that the victim was not only accompanied by
appellant No. 2 but also by appellant No. 1 or that they went towards the canal on the day of occurrence. It is, therefore, apparent that on the face
of such admission of PW-18, the evidence given by PW-2 regarding company of appellants with the victim on the eve of the incident should be
excluded for consideration.
13. PW-3, the owner of the cycle repairing shop has stated that he saw the deceased to walk towards the west side of the road being
accompanied by appellant No. 2 and within half an hour, he heard that there was a murder near the canal. The PW-3 did not mention the presence
of the appellant No. 1 along with the victim and the appellant No. 2.
14. PW-4, a local resident claimed that on the said evening at about 7:35 p.m., he was gossiping in front of the shop of PW-3 and he found that
the deceased and appellant No. 2 were proceeding together and within 15-20 minutes he heard hue and cry and came to know that the deceased
was murdered.
15. From the aforesaid evidence it is clear that even according to the prosecution, appellant No. 1 was not ""last seen together"" with the deceased
but it was appellant No. 2 who was last seen together. PW-1 the widow of the deceased had merely scon the appellant No. 1 to go out of the
premises after the departure of the deceased and PW-2 had also seen both the appellants with the deceased; but PW-3 and PW-4 thereafter have
seen appellant No. 2 alone with the deceased. The aforesaid evidence adduced by the PW-3 and PW-4 indicate that even according to
prosecution, appellant No. 1 was not last seen together with the deceased as narrated by those two witnesses. Moreover, appellant No. 1 cannot
have any motive of murdering the deceased as it was he who according to the prosecution informed the alleged illicit connection of appellant No. 2
with the daughter-in-law of the landlord and on the basis of such information, the deceased reprimanded the appellant No. 2 lest the deceased and
other B.S.F people tenanted in that house are evicted by the landlord.
16. Thus, in this case there was no justification of implicating Mongat as he was not last seen together with the deceased on that evening and at the
same time, there could not be any motive of Mongat to kill the deceased as he himself was the informer of the alieged relation of the appellant No.
2 with the daughterin-law of the landlord to the victim and as such, no question of bearing any ill feeling against the victim arose for making
conspiracy with the appellant No. 2 to kill the victim.
17. We, therefore, propose to set aside the conviction and sentence imposed upon the appellant No. 1 namely, Mongat as the prosecution has
failed to make out any case against him for murder.
18. So far the appellant No. 2 is concerned, before entering into the merits of the allegations made in this case, we find that in examination u/s 313
of the Code of Criminal Procedure, the learned Trial Judge asked him four questions. The English translation of those questions and the answers
given by the appellant No. 2 are quoted below;
Q. No. 1 . I shall ask you some questions on which you may of may give (sic.) any reply and if so, that may be used against you as evidence.
Understand ?
Ans. ; Yes.
Q. No. 2. Do you understand Bengali ?
Ans. :...............
Q. No. 3. P.W. 1 stated in his deposition that on 31.7.95 last at about 6.45 p.m. in evening her husband Basant Singh returned home from his duty
and within 10 minutes he went out for purchasing torch light battery. Thereafter he did not return home. Accused Mongat Ram told her husband
that you had illicit connection with the wife of the son of Niranjan Lal Dutta, the owner of the house and requested you to abstain from illicit
connection. While her husband went out from his house he was put on a Khaki uniform pant, Gangee, T-shirt and one pair Howai Chappal and
she proved these articles marked Mat. Exbt. I (collectively). On the following day of the incident you and Mongat Ram Singh along with your
families went to the house. P.W.2 stated that on 31.7.95 last in the evening Basant Singh came to his bittle nut cum stationary shop to pay the dues
money. You and Mongat Ram then stood in front of cycle shop at a little distance. Thereafter, you and Basant Singh went towards the canal.
Thereafter at about 7:15 in the evening one boy informed about one murder. He identified you before the Court. Thereafter he heard that the
person murdered was a B.S.F. staff. P.W.3 stated that on 31.7.95 last at abut 7.15 in the evening he was in his cycle shop. He saw that you,
Basant Singh and Mongat Singh were going towards west. He identified you. After half an hour, on receiving information he accompanied by some
villagers saw that Basant Singh sustained injuries on his back, right-leg and right rib and lying dead. P.W. 4 stated that on 31.7.95 in the evening
while he was talking with Pulak Sarkar in front of the shop of Pulak Sarkar he saw that two B.S.F. staff were passing by his side, one of them was
you and the other was deceased Basant Singh. P.W. 5 stated that his brother Nakul Bhusun Das told that one B.S.F. staff named Basant Singh
was murdered. On 31.7.95 at about 8 p.m. in the evening he accompanied by some other persons went near the canal and saw that the deceased
lying dead with bleeding injuries by the side of the canal. P.W. 6 stated that on 31.7.95 he saw that one B.S.F. staff named Basant Singh being
murdered lying by the side of Teesta Canal. P.W. 7 examined the deadbody of the deceased Basant Singh and proved P.M. report Exbt. I. He
stated that death was due to shock and haemorrhage. P.W. 8 proved his signature on the deadbody challan Exbt. 2/1 and also signature on the
seizure list Exbt. 3/1. He also proved the Khakipant and Ganjee Mat Exbt. 1 (collectively). P. W. 9 proved his signature on the carbon copy of the
seizure list Exbt. 4/1. P.W. 11 identified both of you before this Court. P.W. 11 saw that the deadbody worn a Khakipant and Ganjee. P.W. 13
proved his signature on the seizure list of bloodstained fullpant, while Ganjee and P.M. blood Exbt.3/2. He also identified the articles Mat Exbt. I.
He proved P.M. blood Mat. Exbt.II. P.W. 14 proved his signature on the inquest report Exbt. 4/2. P.W. 15 proved the written FIR Exbt. 6 and
identified you before the Court. P.W. 16 proved his signature on the inquest report Exbt. 5/2 and identified you before the Court. P.W. 17 proved
his signature Exbt. 5/3 on the inquest report and identified you before the Court. P.W. 18 proved formal FIR Exbt. 7, sketch map of the P.O.
Exbt. 8, inquest report, Exbt. 5, deadbody challan Exbt. 2, seizure list of seized articles Exbt. 3, endorsement on the written complaint Exbt. 6/1
and stated that after completion of proper investigation he submitted chargesheet against you according to law. What do you want to say ?
Ans. : Sir, I am innocent.
Q. No. 4. Will you adduce any defence witness?
Ans. : No.
19. It appears that the learned Trial Judge did not record any answer to the question No. 2 put to the appellant No. 2 whether he understood
Bengali. Nevertheless, the questions were framed in Bengali. At the bottom of the answers, the learned Sessions Judge has certified that he
dictated the questions in Hindi language and the accused admitted those to be correct. But what was the actual Hindi translated version is not
available from the record. If the learned Trial Judge decided to translate the questions also in Hindi, there was no reason why those translated
versions were not put into black and white. It further appears from record that the appellant No. 2 signed his name not in Hindi but in English.
20. In our view, since the appellant No. 2 did not sufficiently know Bengali to understand the complicated lengthy question put to him, it was the
duty of the learned Sessions Judge to put separate questions drawing his attention to different allegations put forward by various witnesses
implicating him so that he could understand the implication of those questions. Moreover, the translated version in Hindi put to him ought to have
been recorded. In the absence of any answer whether the appellant No. 2 really knew Bengali at all, it was useless to certify that the appellant
approved the translated version in Hindi to be correct translation from Bengali. The way questions were framed u/s 313 of the Code, it is very
difficult to understand the actual allegations levelled against appellant No. 2 and thus, there has been no fair trial as regards appellant No. 2.
21. At this stage, it will be apposite to refer to the following observations of the Supreme Court in the well-known case of Tara Singh Vs. The
State, , where the Apex Court emphasised on the requirement of complying with the formalities prescribed in Section 342 of the old Code of
Criminal Procedure whiclj is equivalent to Section 313 of the present Code:
I cannot stress too strongly the importance of observing faithfully and fairly the provisions of Section 342, Criminal P. C. It is not a proper
compliance to read out a long string of questions and answers made in the Committal Court and ask whether the statement is correct. A question
of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are
true, or whether there is some mistake or misunderstanding despite the accurate recording. In the next place, it is not sufficient compliance to string
together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material
circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of
explaining circumstances which appear against him. The questioning trust therefore be fair and must be couched in a form which an ignorant or
illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is
facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that
each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily
appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that
errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and
upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, the disregard of the provisions of Section 342,
Criminal P. C, is so gross in this case that I feel there is grave likelihood of prejudice.
22. As mentioned earlier, no answer of the appellant No. 2 was recorded to the question No. 2 disclosing whether he understood Bengali and the
fact that the questions were translated to Hindi itself suggests that he did not sufficiently understand Bengali. In view of such fact, it was the duty of
the learned Trial Judge to be more cautious in putting questions when those were written in Bengali and translated in Hindi. We have already
indicated that actual translated questions in. Hindi ought to have been brought on record so that we could verify whether those were appropriate
translations in Hindi. He should have asked him short questions indicating the circumstantial evidence adduced in the case which sought to implicate
him so that the appellant No. 2 could understand clearly the implications of the ircumstantial evidence. The duty of the learned Judge was more
onerous in this case as there was no direct evidence of committing the alleged crime. In a case of murder based solely on circumstantial evidence,
the motive behind the alleged crime being a vital factor, it was the responsibility of the learned Trial Judge to precisely point out the evidence, if at
all, adduced against him disclosing the motive so that the accused could, if he so desired, explain the circumstances for dispelling the doubts, if any.
The nature of the questions put to him in this case leaves no doubt in our minds that the irregularities committed by the learned Trial Judge in this
case have definitely prejudiced the trial.
23. So far the allegations against appellant No. 2 are concerned, as indicated earlier, there has been no fair trial against the appellant No. 2 in view
of nature of questions put to him u/s 313 of the Code of Criminal Procedure and at the same time, there is no material on record showing the exact
translated form of those questions in Hindi for our scrutiny and as such, in our view, the matter should be remanded back to the learned Sessions
Judge for proceeding afresh only against appellant No. 2 from the stage of asking questions under Sections 313 of the Code. After framing
appropriate questions, those should be translated in the language desired by the appellant No. 2 and such translated version must be kept on
record. The appellant No. 2 should be given an opportunity to explain and if he so desires, he would also be free to lead evidence in support of his
defence. We refrain from entering into the merits of the case against him at this stage and the learned Sessions Judge while hearing the case further
will not be influenced by our observations while acquitting Mongat. We make it clear that we have not at all considered the veracity of the evidence
adduced against the appellant No. 2 and we restricted our scrutiny only to the evidence adduced against the appellant No. 1.
24. The appeal thus succeeds. The order of conviction and the sentence imposed upon the appellant No. 1 is set aside. The appellant No. 1 be
acquitted of the charges framed against him and be released from the Judicial Custody immediately if not wanted in any other case. So far the
appellant No. 2 is concerned, although the conviction and the sentence imposed upon him are set aside, the matter is remanded back to the
learned Sessions Judge for retrial in the light of the observations made in the body of this order. Since the matter is pending for the last nine years,
we direct the learned Additional Sessions Judge, First Court, Jalpaiguri to conclude the proceedings positively within two months from the date of
arrival of the Lower Court Records.
Arun Kumar Bhattacharya, J.
25. I agree.
