Nure Alam Chowdhury, J.
1. These five appeals, (1) Criminal Appeal No. 13 of 1996 (Ranjit Mondal and Sajal Barui alias Papa v. State), (2)Criminal Appeal No. 35 of 1996 (Alok Saha alias Toto v. State), (3) Criminal Appeal No. 45 of 1996 (Debashish Dey v. State), (4) Criminal Appeal No. 60 of 1996 (Subhrasil Ray alias Raja v. State) and (5) Criminal Appeal No. 61 of 1996 (Samar Saha alias Euro v. State), have been preferred against the same judgment dated January 10, 1996, passed by the learned Additional Sessions Judge, 3rd Court, Barasat in Sessions Trial No. 4(9) of 1994. In the impugned judgment the learned Judge convicted the appellant Sajal Barui alias Papa Under Sections 302/34, I.P.C., 201, I.P.C. and Under Section 120-B, I.P.C. and sentenced him to death by hanging and to pay fine of Rs. 2,000/- i.d., to suffer R.I. for one year on his conviction Under Section 302/ 34, I.P.C., and sentenced him to R.I. for 5 years and to pay fine of Rs. 1,000/- i.d. to R.I. for six months on his conviction Under Section 201, I.P.C. No separate sentence was, however, awarded for his conviction Under Section 120-B, I.P.C. The learned Judge also convicted appellant Ranjit Mondal Under Sections 302/ 34 and 380, I.P.C. and sentenced him to death by hanging and to pay fine of Rs. 2,000/- i.d. to suffer R.I. for one year more on his conviction Under Section 302/ 34, I.P.C. and sentenced him to R.I. for three years and fine of Rs. 1,000/- i.d. to R.I. for six months on his conviction Under Section 380, I.P.C. The learned Judge has also submitted a reference to this Hon'ble Court for confirmation of the sentence of death of Sajal Barui and Ranjit Mondal which has been registered as Death Reference No. 2 of 1996 and is being heard along with the aforesaid five appeals. Both the convicts Ranjit Mondal and Sajal Barui are appellants before this Court in Criminal Appeal No. 13 of 1996.
2. The learned Judge also convicted Alok Saha alias Toto (appellant in Cri. Appeal No. 35 of 1996) Under Sections 302/109, 411 and 120-B, I.P.C. and sentenced him to suffer R.I. for life and fine of Rs. 1,000/- i.d. to R.I. for one year on his conviction Under Section 302/109, I.P.C. and also sentenced him to R.I. for two years and fine of Rs. 1,000/- i.d. to R.I. for one year on his conviction Under Section 411, I.P.C. No separate sentence was, however, awarded on his conviction Under Section 120B, I.P.C.
3. Debashish Dey (Appellant in Cri. Appeal No. 45 of 1996) is also convicted Under Section 302/34, I.P.C. and sentenced to imprisonment for life and fine of Rs. 2000/- i.d. to suffer R.I. for one year.
4. Subhrasil Ray alias Raja (Appellant in Cri. Appeal No. 60 of 1996) is convicted Under Sections 302/ 109, 411, 380 and 120-B, I.P.C. and sentenced to imprisonment for life on conviction Under Section 302/109, I.P.C. and R.I. for one year and fine of Rs. 1,000/- i.d., R.I. for six months on conviction Under Section 411, I.P.C. and R.I. for two years and fine of Rs. 1,000/- i.d., R.I. for one year on conviction Under Section 380, I.P.C. No separate sentence is awarded on his conviction Under Section 120B, I.P.C.
5. Samar Saha alias Buro (Appellant in Cri. Appeal No. 61 of 1996) is convicted Under Sections 302/ 109 and 120B, I.P.C. and sentenced to imprisonment for life and fine of Rs. 1,000/- i.d., R.I. for one year on his conviction Under Section 302/109, I.P.C. but no separate sentence was awarded for his conviction Under Section 120B, I.P.C.
6. The learned Judge also directed that all the sentences awarded against each of the six convicts shall run concurrently.
7. Prosecution case, in brief, at the trial is as follows:-
Accused Sajal Barui, son of Subal Barui, resident of Flat No. 4A of the 4th floor of 'Subham Apartments,' a multi-storeyed building at 5, N.C. Sengupta Sarani, under P. S. Dumdum, District 24 Pargans (North), in order to grab the entire property of his father, hatched up a plan to kill his father, Subal Barui, step-brother Kajal Barui, earned sympathy of the other five appellants, who are his friends and associates by way of narrating imaginary instances of inhuman torture and assault inflicted upon him by his father, step-mother and step-brother. Accordingly Sajal and the other five appellants entered into a criminal conspiracy to do away with Sajal's father, step-mother and step-brother and in pursuance of that conspiracy, on 22-11-1993, they procured rubber gloves, lethal weapons like Bhojali, chopper, Gupti and other sharp-cutting weapons, coconut rope, black-cloth etc. from different places in Calcutta and Dumdum area. They also sharpened the sharp-cutting weapons from a sharpening shop in Calcutta and in the evening all the six appellants assembled in front of 'Subham Apartment.' As per previous plan, Sajal at first entered their flat while his step-mother, Neoti Barui was alone witnessing Television. Following Sajal, except Alok (who just departed from the entrance of the flat), other four appellants being armed with all those lethal weapons and incriminating articles, entered into the said flat and silenced Sajal's stepmother, Ncoti Barui by displaying those weapons and took her to another bedroom and kept her tied with a chair. Thereafter the appellant Samar Saha left the flat with some booties. Soon after Sajal's step-brother entered the flat and he was also overpowered by the appellants who remained in the flat and kept confined in another room being tied with a chair.
8. At about 12.00 hrs. (midnight), Sajal's father Subal Barui entered the flat and he too was overpowered by the accused persons in the flat and coffined, being tied with rope. Thereafter the appellant Subhrasil Roy departed from the flat with some booties including gold ornaments. Thereafter Sajal's father, and step-brother were dastardly nd brutally assassinated one after another by the accused appellants Sajal, Debashish and Ranjit by strangulation and by indicting of injuries by sharp-culling weapons. Neoti was, however, killed by strangulation only. Thereafter, to destroy the evidence, Sajal, Debashish and Ranjit, washed the weapons with water and oil and burnt the other incriminating articles. They also opened the almiralis, and removed gold ornaments, cash, wrist watch etc. and in order to divert the attention of the police and the public, that it was a case of dacoity, Debashish and Ranjit confined Sajal in a chair and lied his hands and caused certain superfluous injuries on his person and thereafter Debashish and Ranjit left the apartment with the booties early in the morning and on the way, threw away a polythene packet containing three rubber gloves and piece of black cloth inside the compound of H.M.V. Company near its abandoned Gale, No. 2 at Jessore Road, Dumdum and except Sajal, the other five appellants did not attend the school on the next clay and absconded and Ranjit took shelter at Burdwan with fake name 'Kartick.' Later on, all the appellants were arrested and there was some recovery of booties Under Section 27 of the Evidence Act from some of the appellants.
9. At the very outset of the hearing of the aforesaid appeals, all the learned Advocates appearing on behalf of the appellants submitted that the appellants have been seriously prejudiced for the manner of their examination Under Section 313 of the Code of Criminal Procedure, resulting in failure and miscarriage of justice and as such the trial should commence afresh from the stage of examination of the appellants Under Section 313 of the Code of Criminal Procedure and as such the impugned judgment as well as the conviction and sentence is liable to be set aside and the reference should be rejected at this stage and fresh reference may be made if such occasion arises.
10. Elaborating the submissions, Mr. Partha Sarathi Bhattacharya learned Advocate with Mr. Jagdish Ch. Majumdar, learned Advocate, appearing on behalf of the appellants, Ranjit Mondal and Sajal Barui, appellants in Criminal Appeal No. 13 of 1996, drew the attention of this Court to some questions put to the appellant Ranjit Mondal and Sajal Barui under Section 313 of the Code of Criminal Procedure, some of which are irrelevant, some confusing, some too long and rolled up questions and cited the decisions reported in (1), : 1953CriLJ521 , (Ajmer Singh v. State of Punjab), (2) : AIR1953SC468 , (Hale Singh v. State of Madhya Pradesh), (3) : 1955CriLJ1644 , (Machander v. Hyderabad State) and (4) : [1963]3SCR489 , (Jai Dev v. State of Punjab) in support of his submissions, contending that in view of such questions the appellants Ranjit and Sajal who are teenager school boys have been seriously prejudiced resulting in failure and miscarriage of justice and as such the matter should go back to the trial Court for proper examination of Ranjit and Sajal Under Section 313, Cr. P.C. in accordance with law and the aforesaid decisions of the Hon'ble Supreme Court.
11. Mr. Chittaranjan Chakraborty, learned Advocate appearing on behalf of Alok Saha. alias Toto, appellant in Criminal Appeal No. 35 of 1996 also made similar submission after drawing the attention to some questions put to the appellant, Alok Saha by the learned trial Judge in the examination of Alok Saha under Section 313 of the Code of Criminal Procedure, emphasising particularly to paragraph 20 of the decision reported in : 1955CriLJ1644 and submitted that the learned trial Judge not having done his duty in accordance with law, the appellant should not suffer for the delay in the trial for commencing the examination of the appellant Under Section 313 of the Code of Criminal Procedure and accordingly the appellant should be released from custody.
12. Mr. Rabin Chakraborty, learned Advocate appearing on behalf of the appellant, Debasish Dey, in Criminal Appeal No. 45 of 1996 also made similar submissions drawing the attention of this Court to some questions put to the appellant under Section 313 of the Code of Criminal Procedure and cited the decision reported in 1952 Cri LJ 1490 : (AIR 1952 Tripura 16) (In Re : Sona Mia) in support of his submissions.
13. Mr. Sourendra Prasad Talukdar, learned Senior Advocate with Mr. Abdul Mamman learned Advocate, appearing on behalf of Suhhrasil Roy, appellant in Criminal Appeal No. 60 of 1996 also drew the attention of the Court to certain questions put to the appellant-Subhrasil Roy contending that the appellant has been seriously prejudiced for such questions resulting in failure and miscarriage of justice and contended that such questions, some of which are too lengthy and cannot be properly answered, have caused serious prejudice to the appellant resulting in absolute failure of justice and the matter should go back to the trial Court for examination of the appellant Under Section 313 of the Code of Criminal Procedure afresh and he cited the decision reported in : 1976CriLJ481 (Md. Inayatullah v. State of Maharashtra) in support of his submissions.
14. Miss Jayasree Banerjee, learned Advocate appearing on behalf of the accused Samar Saha, appellant in Criminal Appeal No. 61 of 1996 also drew the attention of the Court to some questions put to the appellant under Section 313 of the Code of Criminal Procedure and contended that the appellant has been seriously prejudiced by such questions at the trial resulting in failure of justice.
15. Regarding the decisions cited above by the learned Advocates for the appellants, a few words need be stated at this stage. In Ajmer Singh v, State of Punjab, : 1953CriLJ521 , it was held by their Lordships of the Apex Court that it is not sufficient compliance with Section 342, Cr. P.C. (now Section 313, Cr. P.C.), to generally ask the accused that having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him. The questions must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Every error or omission of non-compliance with the provisions of Section 342, Cr. P.C. does not necessarily vitiate a trial. Errors of this type fall within the category of curable irregularities and the question is whether the trial is vitiated depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused.
16. In Hale Singh v. State of Madhya Pradesh, : AIR1953SC468 , it was held that the statement of an accused person recorded Under Section 342, Cr. P.C. (now Section 313, Cr. P.C.) are among the most important matters to be considered at a trial. It was observed by their Lordships that in the particular case, the trial Court and the High Court attached the importance to the fact that the accused had absconded. Held, that the accused should have been asked questions on this point and given a chance to explain it. In the absence of this, the fact could not be used against him.
17. In Machander v. Hyderabad State, : 1955CriLJ1644 , it was held that the Judges and Magistrates should realize the importance of the examination Under Section 342, Cr. P.C. It is their duty to question the accused properly and fairly, bringing home to his mind in clear and simple language to the exact case he has to meet and each material point, that is sought to be made against him and of affording him a chance to explain them, if he can and so desires.
18. In Jaidev v. State of Punjab, : [1963]3SCR489 , it was held that the examination of the accused person Under Section 342, Cr. P.C. is intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers Under Section 342, Cr. P.C., the Court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for, by adopting such a course, the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the Court should put to the accused person detailed questions which may amount to cross-examination. The ultimate test in determining whether or not the accused has been fairly examined Under Section 342, Cr. P.C. would be to enquire whether having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of the prosecution ease against him. If it appears that the examination of the accused person was defective and thereby, a prejudice has been caused to him, that would, no doubt, be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined Under Section 342, Cr. P.C. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general question is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the accused person.
19. The decision in Sona Mia's case (1952 Cri LJ 1490) : (AIR 1952 Tripura 16), there was no discussion about Section 342, Cr. P.C. (now Section 313, Cr. P.C.), so, it is not relevant, for our purpose in the present case. Similar is the case with Md. Inayatullah v. State of Maharashtra, : 1976CriLJ481 , therefore, it is not relevant for our purpose.
20. Mr. Kazi Safiullah, learned Public Prosecutor, along with Mr. Sasanka Ghosh learned Advocate, appearing on behalf of the State submitted that since no objection was made by any of the accused-appellants before the trial Court at the time of their examinations under Section 313 of the Code of Criminal Procedure, such objection cannot be raised at this stage. He further submitted that irrelevant questions which are irrelevant to the charge are only redundant and cannot make out a case for fresh examination under Section 313 of the Code of Criminal Procedure. It is further submitted that in view of the provisions of S. 465(2) of the Code of Criminal Procedure, this Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage of proceeding in determining whether the error or irregularity in any proceeding under this Code has occasioned a failure of justice and the appellants not having raised objections earlier at the time of their examinations under Section 313 of the Code of Criminal Procedure, the finding, the sentence or order passed by the trial Court cannot be reversed or altered by this Court of appeal. He further submitted that under Section 167 of the Evidence Act the improper admission or rejection of the evidence shall not be ground in itself for a new trial or reversal of any decision in any case if it shall appear to the Court before which such objection is raised that independently of the evidence objected to and admitted there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received it ought not to have varied the decision and as such if this Court finds that there is sufficient ground to justify the decision in spite of the fact that some evidence against the appellant should not be considered for improper examination of the appellant Under Section 313 of the Code of Criminal Procedure there cannot be any ground for remanding the ease before the trial Court for re-trial from the stage of Section 313 of the Code of Criminal Procedure.
21. Mr. Safiullah also drew the attention of the Court to Section 386 of the Code of Criminal Procedure regarding the powers of the Appellate Court and Section 391 of the Code of Criminal Procedure and submitted that if this Court feels it necessary to examine the appellants under Section 313 of the Code of Criminal Procedure afresh, this Court may do so instead of remanding the ease to the trial Court for fresh examination under Section 313 of the Code of Criminal Procedure and cited the decisions reported in (1) AIR 1968 SC 702 : (1968 Cri LJ 806) (Munshiram v. Delhi Administration (para 5); (2) : 1975CriLJ246 (Labhchand v. State of Maharashtra (para 2); (3) AIR 1963 SC 1531 : (1963 (2) Cri LJ 418) (Ukha Kolhe v. State of Maharashtra) and (4) : 1986CriLJ834 (Mohinder Singh v. State of Punjab) (para 3) in support of his submissions.
22. In Munshiram's case (1968 Cri LJ 806) (SC) (supra), it was held that the plea of private defence not taken in the statement Under Section 342, Cr.P.C. but basis for which was laid down in cross-examination of prosecution witnesses as well as by adducing defence evidence can be considered by the Court. The burden of establishing that plea is on the accused and that can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
23. In Labhchand's case (1975 Cri LJ 246) (supra), it was held where the appellant-accused was fully aware of the nature of the allegations made against him and in addition to giving a detailed explanation, he had also filed an elaborate written statement (case Under Section 125, Customs Act, 1962), and had not raised any objection either in the trial Court or in the appellate Court as to non-compliance of Section 342, Cr.P.C., held, that though the general form of questions put to the accused does not strictly comply with Section 342, he has not suffered any injustice and his conviction is not vitiated.
24. In Ukha Kolhe's case (1963(2)Cri LJ 418) (supra), it was held that an order for re-trial of a criminal case is made in exceptional cases and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was Vitiated by serious illegalities or irregularities or on account of any misconception of the nature of the proceedings and on that account in substance, there had been no real trial or that the prosecutor or an accused was, for reasons over which, he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice, the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again.
25. In Mohinder Singh's case : 1986CriLJ834 there is nothing to do with Section 313, Cr.P.C.
26. There is no substance in the contention of the ld. P.P. for the reason given below. Section 167 of Evidence Act is concerned with improper admission or rejection of evidence. But statement Under Section 313, Cr.P.C. is not strictly speaking evidence; it can only be taken into consideration in inquiry or trial. (State v. R.B. Chowdhuri, : 1968CriLJ95 ). Since no oath is administered to the accused, the statement made by the accused Under Section 313, Cr.P.C. will not be evidence, but conviction can be founded on admission of guilt or confession at the stage of making a statement Under Section 313, Cr.P.C. (State v. Sukhdev, : 1992CriLJ3454 ). Thus if the statement Under Section 313, Cr.P.C. cannot be taken as evidence, there is no question of drawing upon Section 167 of Evidence Act.
27. Section 391, Cr.P.C. is concerned with its situation when the appellate Court thinks additional evidence is necessary. But as has been stated above, fresh examination Under Section 313, Cr.P.C. is not taking of additional evidence. The ld. P. P. has also argued that even if mere examination Under Section 313, Cr.P.C. is not taking of evidences, but after that phase, the accused persons can call defence witnesses and this involves taking of additional evidence. Apparently, this is good reasoning. But there is a loophole in the line of reasoning. If there is no examination Under Section 313, Cr.P.C. according to law, then the evidence received, if any, through defence witnesses after the examination Under Section 313, Cr.P.C. is a shadow only of the exercise involved in examination of defence witnesses. So it is non est. Hence there is no question of admission of additional fresh evidence but only taking of evidence, if any, for the first time on a virgin turf.
28. Mr. Dilip Kumar Dim, ld. Senior Advocate with Mr. R. B. Mahato and Mr. Arup Chatterjee ld. Advocates appearing as Amicus Curiae, submitted that in the interest of the accused persons they should be warned in accordance with law and rolled up questions and wrong questions put to the accused at the trial have occasioned failure of justice. Mr. Dutt further submitted that although there is no modal regarding the framing of questions by the trial Court under Section 313 of the Code of Criminal Procedure, some guidelines and principles have been well-settled by a catena of decisions of the Hon'ble Supreme Court regarding the examination of an accused under Section 313 of the Code of Criminal Procedure and those are, inter alia, as follows :-
(i) Proper warning to the accused in accordance with law should be given before his examination under Section 313, Cr.P.C.
(ii) The Court must be satisfied whether the accused is in a position to understand the questions and in this case it should be considered that the accused persons are school-going teenagers.
(iii) The questions must not be in the nature of cross-examination to fill up the lacuna of the prosecution case, the questions should not be such as will subject an accused person to admission.
(iv) Irrelevant questions should not be asked to confuse the accused person.
(v) Questions should be put in such manner that it can be answered properly.
(vi) Such questions should not be asked in which the accused is liable to be prejudiced.
(vii) Rolled-up questions containing several questions in lengthy form cannot be asked.
(viii) Circumstances appearing from the evidence against an accused should be put in simple way.
Vide : State v. Sukhdeo, : 1992CriLJ3454 ; Tara v. State, : [1951]2SCR729 ; Ajmer v. State, : 1953CriLJ521 .
29. Mr. Dutt submitted that applying the aforesaid tests the materials on record justify the examination of the accused persons under Section 313 of the Code of Criminal Procedure afresh and the case should be sent back to the trial Court for commencing the trial from the stage of the examination of all the accused persons under Section 313 of the Code of Criminal Procedure in respect of those questions contrary to the aforesaid principles and the impugned judgment accordingly should be set aside and the Death Reference should be rejected at this stage.
30. We have very carefully perused he contents of each of the questions put to each of the appellants before the trial Court and considered the submissions of the ld. advocates appearing on behalf of the appellants, the State and the id. senior advocate appearing as 'Amicus Curiae' before this Court.
31. As has been observed by the Hon'ble Supreme Court in the judgment reported in : 1992CriLJ3454 (State of Maharashtra v. Sukhdeo Singh), it is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. Section 313 of the Cr. P.C. imposes a heavy duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words 'shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under Section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record.
32. Although there is no specific modal regarding the questions to be put to an accused Under Section 313, some guidelines have been given by the Apex Court regarding such questions (S. 342 at that time) in the decision reported in : [1951]2SCR729 (Tara Singh v. The State of Punjab) that 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 questioning must 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 who is perturbed and confused, can readily appreciate and understand. It has been further observed in that decision that every error or omission in this behalf does not vitiate a trial because the 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.
33. It has been further elucidated in the decision reported in : [1963]3SCR489 (Jai Dev v. State of Punjab), holding inter alia that broadly speaking, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 (now Section 313) as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the accused.
34. A few instances of the questions put to the appellants in their examination Under Section 313, Cr. P.C. will drive home the point that the question put to the accused-appellants were not in conformity with the guidelines set down by the Apex Court as stated above. Instances of jumbled up questions put to appellant Sajal are as follows:-
Q. No. 3. It appears further from the evidence adduced on behalf of P.W. 1 that some Police Officers of the Dum Dum P. S. came rushing to the said flat and having broken open the lock of the door entered the said flat. It was then found that you being tied with the ropes to a chair were seated on the right side of the room. Having entered another bed room they came to see your mother, Niyati Barui with her chest tied to the back of the chair by means of a rope lying there dead. Her hands were tied with ropes and her head was lying tilted on one side. Having entered another bed room they found Kajal Barui lying dead and was left tied tightly to a chair by means of ropes. They found your father, Subal Barui also lying dead in a pool of blood on the floor of the said room, what is your reply in this regard?
Q. No. 48. It appears from the evidence adduced on behalf of the P.W. 56, Nityananda Dubey, S.I.. that on 23-11 -1993 last having received a report of a disturbance over telephone from the Duty Officer, he along with R. N. Dey, S.I., S. Chatterjee, S.I., and P.L. Sharma, S.I., rushed in rickshaws to the Subham Apartment and reached the spot at about 1 -45 p.m. There was a large gathering of people at that time. At that time, a person having introduced himself as 'Bittu' stated that he was the person who made the phone call. He stated further that someone from inside the flat on the fourth floor of the said Apartment was asking to save him. Having heard that words P.L. Sharma, S.I., taking Bittu Babu and one Mukti Babu along with him rushed towards the spot. The P.W. and other officers were maintaining the law and order by keeping the crowd in control. After sometime Sharma, S.I., informed that the doors of the flat were closed from inside and some one from inside was saying to rescue him. Within a few minutes, Anup Ray, S.I., came to the spot, he also reached the spot. After sometime, the dead bodies were recovered. At about 2-30 p.m. gave him a written complaint and told him to go to the P.S. and initiate the filing of a case. What is your say about the above deposition?
Q. No. 2 put to the appellant Ranjit Mandal alias Anil is confusing and Q. No. 22 is irrelevant and rolled up. These are quoted below :-
Q. No. 2. It transpires from the evidence of witness No. 1 Dipankar Banerjee, witness No. 2, Sm. Shibani Dutta and witness No. 3, Sm. Swati Mukherjee that they are owners and inhabitants of. Flat No. 4 at No. 2, V.C. Sarani, Dum Dum. Subal, Barui, father of Sajal Barui was also an inhabitant of that 'Abasan'. Witness Nos. 2 and 3 are inhabitants of the 4th Floor of that 'Abasan', Witness No. 1 was the Secretary of the flat.
It further transpires from the evidence of them that on 23-11 -1993 having heard a groaning sound from inside the closed flat of Subal Barui they went under No. 2, No. 3 Subham Abasan and informed the owner of the next medicine shop and then witness No. 1.
Q. No. 22. It transpires from the evidence of witness No. 39 Gopal Ghosh that towards the end of December, 1993 in the morning, neighbour of your elder brother, Sunil Mondal and another neighbour, Prabir Chakraborty informed that you came back here.
It transpires from the evidence of the witness that the police used to raid your locality and your house at Abdulpur. Then the Police informed the witness, member of Panchayat and other villagers that you were connected with three members of the Barui family and they were directed to inform the police as soon as you came back home. The Police stated further that they were directed to confine you when you came back and inform the Police Camp. The witness and other persons came to your house when they heard that you came back.
It further transpires from the evidence of the witness that when the witness wanted to know whether you were connected with the murder of Barui family you told them that you read in the paper all the statements against you. As you are made guilty, you will disclose everything to Police.
Being interrogated by Police you said that you had been working in a hotel at Burdwan so long. After that the witness informed the Madhyamgram J.C. over telephone about you and the Police arrested you.
What have you got to say in this matter?
Questions Nos. 2 and 29 put to the appellant, Debasish Dey are very eloquent. These two questions are quoted below :
Q. No. 2. It has transpired from the evidence of witness No. 1, Dipankar Banerjee, witness No. 2, Sm. Shibani Dutta and witness No. 3, Sm. Swati Mukherjee that they are owners of flats and residents of 'Subham Abasan' at No. 5, N. C. Sarani, Dum Dum. Sajal Barui's father, Subal Barui had a flat on the 4th Floor of that 'Abasan'. Witness Nos. 2 and 3 are also residents of the fourth floor and witness No. 1 is the Secretary of that 'Abasan'.
It has transpired from the evidence that on 23-11-93, in the morning, Sajal Barui was heard saying from within the flat that he had been kept bound to a chair and that he did not know the whereabouts of his father and mother and he asked to be rescued.
It has also transpired from their evidence that as the door of the flat was closed from inside, it was not possible to open the door and information was given to the Police over phone, and the Police Officers had arrived and had broken the lock of the door of the flat with a hammer, and on entering they had found that Sajal had been kept bound to a chair with ropes.
It has also transpired that in reply to questions, Sajal had said that, on the previous night at about 7-30 p.m. he and his mother, Niyati Barui had been watching T.V., when 7 decoits, amongst whom two were Punjabis, had entered their flat for committing a dacoity and they had assaulted him with the butt of a revolver and had left him in an unconscious condition and had taken his mother inside. He did not know anything more as he had lost consciousness.
It has also transpired that, thereafter Police had gone with Sajal and other witnesses to the other rooms and in one room Sajal's step-brother Kajal Barui was found dead on a chair, with his arms and legs bound tightly to the chair, Sajal's father, Subal Barui's blood-stained body was found lying on the floor and in another room Sajal's stepmother, Niyati was found dead on a chair, with her hands and legs tied to the chair.
What do you say about that?
Q. No. 29. It has transpired from the evidence of witness No. 57, Netailal Mukherjee (S.I., D.D.) that on 9-12-1993 evening, I.O. Dilip De Bakshi had seized eight photographs along with the negatives of Sajal in various poses.
It has also transpired from his evidence that on 17-12-1993, evening, in terms of your statement, you had taken the I.O. Dilip De Bakshi along with witness and Basudeb Ghose and the other staff of D.D. to the H.M. V. factory at Dum Dum. Subhrasil Roy was also present with you at that time.
After arriving there you had searched and brought out a polythene packet from within the bushes near the gate No. 2 in the presence of the Labour Welfare Officer and others and there were three pairs of gloves and a piece of black cloth within the packet. The I.O. had seized everything through a seizure list.
What do you have to say about that?
35. In this way, instances can be increased. The question is whether such examination has caused any injury or injustice to the appellants. The answer is obvious. The questions are rolling, sometimes confusing and always involving a multiplicity of phases of occurrence or acts. The accused are tender school-boys who have crossed 16 years and are placed in a sombre scenario of a legal arena under the shadow of a grave charge of murder. Their frame of mind cannot be normal. A balanced and well considered answer cannot be expected from such persons in the abnormal situation of the Court. Naturally, they have been deprived from an opportunity to present their proper stand in the trial in a dialogue between the Court and the accused personally. This has caused prejudice to them. But it is not implied that all the questions put by the Id. trial Judge are suffering from this virus. The ld. Judge has taken great pains to frame the questions from the mass of evidence, both oral and circumstantial in the case. But his endeavours have gone off the rails because of misdirection.
36. Considering the questions put to the accused-appellants Under Section 313 of the Code of Criminal Procedure at the trial Court, we have no hesitation in holding that a substantial portion of the questions put to the accused persons relating to vital and important incriminating circumstances are not in conformity with the principles and guidelines laid down by the Apex Court in the aforesaid decisions.
37. We therefore, set aside the impugned judgment and order of conviction and sentence passed by the ld. Additional Sessions Judge, 3rd Court, Barasat in Sessions Trial No. 4(9) of 1994 and direct the trial Court to examine all the six appellants afresh Under Section 313 of the Code of Criminal Procedure by re-framing only those questions which are contrary to the principles and guidelines laid down by the Apex Court in the decisions quoted above and conclude the trial preferably within three months from the date of receipt of the records from this Court.
38. Let the records go down to the trial Court immediately so as to reach the trial Court not later than a week from date. Death Reference No. 2 of 1996 is rejected at this stage.
39. All the five appeals - Criminal Appeals Nos. 13, 35,45, 60 and 61 of 1996 and the Death Reference No. 2 of 1996 are thus disposed of.
Nisith Kumar Batabyal, J.
40. I agree.