Simanta Boruah vs The State Of Assam And Anr on 26 March, 2026

    0
    22
    ADVERTISEMENT

    Gauhati High Court

    Simanta Boruah vs The State Of Assam And Anr on 26 March, 2026

                                                                        Page No.# 1/18
    
    GAHC010154072023
    
    
    
    
                                                                  undefined
    
                                THE GAUHATI HIGH COURT
       (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
    
                                     Case No. : Crl.A./294/2023
    
               SIMANTA BORUAH
               S/O LATE DINESH CHNADRA BARUAH,
               R/O BAMUNGAON PT- I,
               P.O.- BORIGAON, P.S.- ABHAYAPURI, DIST.- BONGAIGAON, ASSAM.
    
    
    
               VERSUS
    
               THE STATE OF ASSAM AND ANR.
               REP. BY P.P., ASSAM.
    
               2:JAYAMONI CHOUDHURY
                D/O LOHIT CHOUDHURY
    
               R/O AAMTOLA
    
               P.S.- ABHAYAPURI
                PIN- 783384
                DIST.- BONGAIGAON
               ASSAM
    
    Advocate for the Petitioner : MS. S NAZNEEN, MR A W AMAN,MR. SURAJIT DAS,SAMIM
    RAHMAN,MS SURAYA RAHMAN,MR SARFRAZ NAWAZ,MR. K M HASSAN
    
    Advocate for the Respondent : PP, ASSAM,
    
    
    
    
                Linked Case : Crl.A./261/2023
    
               UTPAL RAY @ UTPAL CH RAY @ NAMAL RAY
                                                   Page No.# 2/18
    
    S/O LATE SURESH CH. RAY
    RESIDENT OF BAMUNGAON PART I
    PS ABHAYAPURI
    DIST BONGAIGAON
    ASSAM
    
    
    VERSUS
    
    THE STATE OF ASSAM
    REPRESENTED BY PP ASSAM
    
    
    ------------
    Advocate for : MR. M J BARUAH
    Advocate for : PP
    ASSAM appearing for THE STATE OF ASSAM
    
    
    
    Linked Case : Crl.A./221/2023
    
    PRAFULLA RABHA
    S/O DIFURA RABHA
    
    RESIDENT OF VILLAGE BAMUNGAON
    PO AND PS ABHAYAPURI
    DIST BONGAIGAON
    ASSAM 783384
    
    
    VERSUS
    
    STATE OF ASSAM AND ANR.
    REPRESENTED BY PP ASSAM
    
    2:SMTI JOYAMANI CHOUDHURY
    D/O LOHIT CHOUDHURY
    RESIDENT OF AMTALA
     PS ABHAYAPURI
     DIST BONGAIGAON
    ASSAM
     783384
     ------------
    Advocate for : MR J DAS
    Advocate for : PP
    ASSAM appearing for STATE OF ASSAM AND ANR.
                                                                          Page No.# 3/18
    
    
    
                 Linked Case : I.A.(Crl.)/522/2023
    
                 PRAFULLA RABHA
                 S/O DIFURA RABHA
                 RESIDENT OF VILLAGE BAMUNGAON
                 PO AND PS ABHAYAPURI
                 DIST BONGAIGAON
                 ASSAM 783384
    
    
                 VERSUS
    
                 STATE OF ASSAM AND ANR.
                 REPRESENTED BY PP ASSAM
    
    
                 ------------
                 Advocate for : MR J DAS
                 Advocate for : PP
                 ASSAM appearing for STATE OF ASSAM AND ANR.
    
    
    
                                       BEFORE
                       HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
    
                                                ORDER
    

    26.03.2026

    Heard Mr. S. Nawaz, learned counsel for the appellant in Crl.A.
    No.294/2023; Mr. P. Bharadwaj, learned counsel for the appellant in Crl.A.
    No.221/2023 (with I.A.(Crl.) No.522/2023) and Mr. M.J. Baruah, learned counsel for
    the appellant in Crl.A. No.261/2023. Also heard Ms. S.H. Bora, learned APP for the
    State.

    SPONSORED

    2. These criminal appeals assail the judgment and order dated 16.05.2023
    passed in Sessions Case No. 173(A) of 2014 by the Court of the learned Additional
    Sessions Judge (FTC), North Salmara, Abhayapuri, whereby the appellants were
    Page No.# 4/18

    convicted under Sections 341/354/323/376/34 of the IPC.

    3. The records reveal that the alleged offence occurred on 21.07.2013 and the
    FIR was lodged on 23.07.2013. The contents of the FIR are quoted below for ready
    reference:

    “The above-named informant begs to state that around 3:00 p.m. on

    21/07/13, the informant along with her three friends, namely Runima
    Chetry, Hirakjyoti Ray and Jeki Basumatary, went to Bamungaon tourist
    spot for an outing. Some 15/20 minutes after they had arrived there,
    three unknown individuals, who were lying in ambush nearby,
    suddenly attacked them with the intention of fulfilling their dishonest
    motives. After assaulting the two boys and taking them some distance
    away, two of the accused committed rape on the informant and
    physically tortured another girl Runima Chetry.

    Be it mentioned here that the informant is studying in H.S. 1st year.
    The other two boys and the girl are also students.

    The informant is not acquainted with the said three persons; however,
    she will be able to recognize them if she happens to see them.

    The lodging of this ejahar was delayed as the informant belatedly
    informed her guardian about the incident.”

    4. All three appellants thereafter faced trial. The recording of evidence
    commenced on 31.07.2015, and the judgment was delivered on 16.05.2023,
    Page No.# 5/18

    whereby all the accused were convicted for offences punishable under Sections
    341
    /323/34 of the IPC. The appellants in Crl. A. No. 294/2023 and Crl. A. No.
    221/2023 were also convicted under Sections 376/34 of the IPC, while the
    appellant in Crl. A. No. 261/2023 was additionally convicted under Section 354 of
    the IPC.

    5. It is submitted at the Bar that the appellants in Crl. A. No. 294/2023 and Crl.
    A. No. 221/2023 are in custody serving their sentences, whereas the appellant in
    Crl. A. No. 261/2023 is on bail.

    6. Having convicted the appellants as hereinbefore stated, the following
    sentences were imposed upon them respectively. The appellants in Crl. A. No. 294
    of 2023 and Crl. A. No. 221 of 2023 were each sentenced to undergo rigorous
    imprisonment for 10 years and to pay a fine of Rs. 50,000/-. The appellant in Crl.
    A. No. 261 of 2023 was sentenced to undergo rigorous imprisonment for 2 years
    and to pay a fine of Rs. 20,000/- for the offence punishable under Section 354 of
    the IPC. All three appellants were further sentenced to undergo rigorous
    imprisonment for 6 months each, for the offence punishable under Sections 323/34
    of the IPC and to undergo rigorous imprisonment for 15 days each for the offence
    punishable under Sections 341/34 of the IPC. All the sentences were directed to
    run concurrently.

    7. The learned counsel for the appellants submits that during the trial, the trial
    court committed a grave error while conducting the examination of the accused
    under Section 313 of the CrPC. Drawing attention to the manner in which the
    appellants were examined after the prosecution evidence was closed, learned
    counsel submitted that each of the accused was confronted with the entire
    Page No.# 6/18

    evidence of each of the prosecution witnesses at one go and asked to explain the
    circumstances.

    8. It is contended that such a course is not in accordance with the procedure
    prescribed under Section 313 of the CrPC. By putting the entire evidence of each
    prosecution witness without breaking it into distinct incriminating circumstances,
    the accused were deprived of a fair opportunity to offer their explanations to the
    evidence led by the prosecution.

    9. In support of the aforesaid submission, learned counsel for the appellants
    has placed reliance on the judgment in Gobind Singhal S/o Shri Radheshyam
    Singhal vs. State of Assam and Another, reported in (2022) 2 GLT 790,
    wherein the relevant principles have been discussed in paragraphs 42 to 49. For
    ready reference, the said paragraphs are reproduced herein below:

    “42. In the case of Paramjeet Singh vs. State Uttarakhand reported in
    (2010) 10 SCC 439 the Supreme Court, while elaborating on the
    importance of the statement of the accused under section 313 of the
    Cr.P.C, has observed that section 313 CrPC is based on the fundamental
    principle of fairness. The attention of the accused must be specifically
    brought to the inculpatory piece of evidence so as to give him an
    opportunity to offer an explanation if he chooses to do so. Therefore, the
    court would be under a legal obligation to put the incriminating
    circumstances to the accused and solicit his response. The provision is
    mandatory in nature and casts an imperative duty upon the court and
    confers a corresponding right on the accused to have an opportunity to
    offer an explanation for such incriminatory materials appearing against
    Page No.# 7/18

    him.

    43. Taking note of the law declared in Paramjeet Singh (supra) and several
    decisions governing the issue, the Hon’ble Supreme Court, in Nar Singh vs.
    State of Haryana
    reported in (2015) 1 SCC 496, has re-examined the
    scope and ambit of Section 313 of the Cr.P.C. and held that section 313 (1)

    (b) of CrPC aims at bringing the substance of the accusation to the
    accused so as to enable him to explain every circumstance appearing in
    the evidence against him and as such, the provision is mandatory and
    casts a duty upon the court to offer an opportunity to the accused to
    explain every incriminating evidence available against him. Having held as
    above, it has also been clarified that, whether a trial has been vitiated or
    not due to noncompliance of section 313 CrPC would depend on the
    degree of error or violation and the accused must show that such non-

    compliance has materially prejudiced him or is likely to cause prejudice to
    him. Having observed as above, the Apex Court, has laid down the
    following guiding principles to be followed by the courts which are
    reproduced herein below :-

    “30. Whenever a plea of omission to put a question to the accused on vital
    piece of evidence is raised in the appellate court, courses available to the
    appellate court can be briefly summarized as under:-

    30.1. Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised,
    it is within the powers of the appellate court to examine and further
    examine the convict or the counsel appearing for the accused and the said
    answers shall be taken into consideration for deciding the matter. If the
    Page No.# 8/18

    accused is unable to offer the appellate court any reasonable explanation
    of such circumstance, the court may assume that the accused has no
    acceptable explanation to offer;

    30.2. In the facts and circumstances of the case, if the appellate court
    comes to the conclusion that no prejudice was caused or no failure of
    justice was occasioned, the appellate court will hear and decide the matter
    upon merits.

    30.3. If the appellate court is of the opinion that noncompliance with the
    provisions of Section 313 Cr.P.C. has occasioned or is likely to have
    occasioned prejudice to the accused, the appellate court may direct retrial
    from the stage of recording the statements of the accused from the point
    where the irregularity occurred, that is, from the stage of questioning the
    accused under Section 313 Cr.P.C. and the trial Judge may be directed to
    examine the accused afresh and defence witness if any and dispose of the
    matter afresh;

    30.4. The appellate court may decline to remit the matter to the trial court
    for retrial on account of long time already spent in the trial of the case and
    the period of sentence already undergone by the convict and in the facts
    and circumstances of the case, may decide the appeal on its own merits,
    keeping in view the prejudice caused to the accused.”

    44. In Nar Singh (supra) the Apex court had agreed with the stand of the
    appellant/ accused on the issue of non-compliance of the mandatory
    provisions of section 313 CrPC and has held that omission to put every
    Page No.# 9/18

    material circumstance to the accused did not ipso facto vitiate the trial nor
    was the accused entitled to acquittal on the ground of such non-
    compliance but the matter could be sent for retrial. Accordingly, the case
    was remitted back to the trial court, after setting aside the conviction of
    the accused, with a direction to proceed afresh from the stage of
    recording the statement of the accused under section 313 CrPC. While
    examining the accused, the trial court was also directed to marshal the
    evidence on record and put specific and separate questions to the accused
    with regard to the incriminating circumstances and also to offer him an
    opportunity to examine defense witnesses, if so advised.

    45. Similar view has been expressed by the Apex Court in another decision
    in the case of Reena Hazarika vs. State of Assam reported in AIR 2018 SC
    5361 wherein, the following observations have been made in paragraph 16
    which are quoted herein below :-

    “16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram
    partem. It confers a valuable right upon an accused to establish his
    innocence and can well be considered beyond a statutory right as a
    constitutional right to a fair trial under Article 21 of the Constitution, even
    if it is not to be considered as a piece of substantive evidence, nor being
    on oath under Section 313(2), Cr.P.C. The importance of this right has
    been considered time and again by this court, but it yet remains to be
    applied in practice as we shall seen presently in the discussion to follow. If
    the accused takes a defence after the prosecution evidence is closed,
    under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section
    313(4)
    Cr.P.C. to consider the same. The mere use of the word ‘may’
    Page No.# 10/18

    cannot be held to confer a discretionary power on the court to consider or
    not to consider such defence, since it constitutes a valuable right of an
    accused for access to justice, and the likelihood of the prejudice that may
    be caused thereby. Whether the defence is acceptable or not and whether
    it is compatible or incompatible with the evidence available is an entirely
    different matter. If there has been no consideration at all of the defence
    taken under Section 313 Cr.P.C., in the given facts of a case, the conviction
    may well stand vitiated. To our mind, a solemn duty is cast on the court in
    dispensation of justice to adequately consider the defence of the accused
    taken under Section 313 Cr.P.C. and to either accept or reject the same for
    reasons specified in writing.”

    46. What crystallizes from the above decisions of the Apex Court is that
    the provision of section 313 CrPC is mandatory in nature and the same
    also confers a right upon the accused to offer explanation in respect of
    each of the incriminating evidence available against him, if so desired.
    Therefore, the failure on the part of the trial judge to comply with section
    313
    CrPC may vitiate the trial if prejudice can be shown to have been
    caused or likely to be caused to the accused.

    47. Following the principles laid down in the case of Nar Singh (supra),
    this court, in a recent decision rendered in the case of Md. Sahid Khan vs.
    State of Assam
    [2021 0 Supreme (Gau) 557] had taken note of the failure
    on the part of the trial court to put all the incriminating materials to the
    accused which were relied upon so as to convict him and on being
    satisfied that prejudice had been caused to the accused on account of
    such non-compliance, set aside the conviction and remitted the matter to
    Page No.# 11/18

    the trial court for re-trial from the stage of recording the statement of the
    accused under section 313 CrPC with a direction to the learned court
    below to frame specific questions on each incriminating circumstances and
    to offer an opportunity to the accused to explain his stand.

    48. It is to be borne in mind that the purpose of section 313 CrPC is to
    afford a fair opportunity to the accused so as to offer explanation with
    regard to each incriminating evidence available against him. During
    examination of the accused under section 313 CrPC, the questions are put
    to the accused orally. Therefore, the trial court should avoid posing long
    and arduous queries to the accused and instead bring to his notice, in a
    concise form only the incriminating evidence available on record against
    him. If the questions put to accused turns out to be very long and
    arduous, containing voluminous details or if the same is put in the form of
    interrogatories, then the accused would naturally not be in a position to
    understand the actual incriminating circumstances available against him
    and may even fail to comprehend the questions in the proper perspective
    so as to offer an explanation, in which event, the accused would
    undoubtedly suffer prejudice. Therefore, it would be the duty of the trial
    court to put the substance of all the incriminating circumstances to the
    accused by framing specific and separate question on each incriminating
    evidence brought on record against him and give an opportunity to the
    accused to offer explanation.

    49. In the present case, having regard to the manner in which the
    incriminating circumstances were brought to the notice of the accused (A-

    1) while recording his statements under section 313 CrPC, we are
    Page No.# 12/18

    convinced that the accused did not get a proper opportunity to respond to
    all the incriminating evidence available against him in a proper manner.

    The learned trial Judge was not correct in putting such long and
    voluminous questions to the accused pertaining to the incriminating
    circumstances. We also find that some of the incriminating evidences were
    put to the accused in the form of interrogatories, hinting at some form of
    predisposition on the part of the trial Judge against the accused. The
    learned court below had also failed to put all the incriminating
    circumstances to the accused which were eventually relied upon for his
    conviction. We are, therefore, of the opinion that there was noncompliance
    of the mandatory provision of section 313 CrPC. Going by the nature and
    degree of non-compliance, as noticed above, there can hardly be any
    doubt about the fact that prejudice to the accused was inherent, having a
    vitiating effect on the trial. We, therefore, find sufficient force in the
    submission of the learned counsel for the appellant that a fair trial was
    denied to his client.”

    10. The learned counsel for the appellants submits that, as per the findings of
    the Division Bench of this Court, the trial court ought to avoid posing long and
    complex questions to the accused and instead bring to their notice, in a concise
    form, only the incriminating evidence available on record.

    11. It has further been held that it is the duty of the learned trial court to put the
    substance of all incriminating circumstances to the accused by framing specific and
    separate questions on each such circumstance brought on record, thereby
    affording the accused a fair opportunity to offer an explanation.

    Page No.# 13/18

    12. The learned counsel for the appellants has also placed reliance on Nar
    Singh vs. State of Haryana
    , reported in (2015) 1 SCC 496, wherein at
    paragraph 30, the Hon’ble Supreme Court has laid down the relevant principles.

    Further reliance has been placed on Rajkumar @ Suman vs. State (NCT of
    Delhi), reported in (2023) 17 SCC 95, to contend that unless the material
    circumstances forming the basis of the prosecution case are put to the accused in
    the form of concise questions, prejudice would be caused to the defence.

    13. It is argued that the specific case of the defence, as reflected in the cross-
    examination of the prosecution witnesses as well as the evidence of the defence
    witness, was that there were material irregularities in the prosecution case,
    inasmuch as a false story had been projected in the FIR and subsequently sought
    to be proved through the charge-sheet.

    14. The learned counsel submits that the consistent stand of the defence has
    been that, the appellants were not involved in the alleged incident; rather, the
    persons accompanying the alleged victims had committed the offence and were
    subsequently detained by the family members and co-villagers of the victims. It is
    further submitted that only after a compromise was arrived at between the alleged
    victims and the actual perpetrators, that the FIR was lodged, falsely implicating the
    present appellants.

    15. It is further contended that by putting long and composite questions to the
    accused without specifying the exact incriminating evidence against them, the
    appellants were deprived of a meaningful opportunity to furnish proper
    explanations to each circumstance.

    Page No.# 14/18

    16. According to learned counsel, this aspect assumes significance as the
    defence of the appellants has been rejected by the learned Trial Court primarily on
    the ground that they failed to offer any explanation during their examination under
    Section 313 of the CrPC. In this regard, reference has been made to paragraph 51
    of the impugned judgment, wherein it has been observed that during the
    examination under Section 313 of the CrPC, the accused persons merely denied the
    incriminating material put to them. Para 51 is quoted below for case reference:

    “It is important to note here that during the examination of the

    accused persons u/s-313 of Cr.P.C., when the incriminating materials
    appearing in the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 were put to
    them, they simply denied the same. However, they did not narrate any
    incident which the defence tries to project through the defence
    witnesses.”

    17. Ms. S. H. Bora, learned APP for the State, submits that the appellants were
    afforded an opportunity to explain the circumstances appearing against them
    during their examination under Section 313 of the CrPC, and having failed to do so,
    there is no illegality or irregularity in the judgment and order dated 16.05.2023,
    passed by the learned Trial Court holding the appellants guilty of the offences.

    18. However, learned APP fairly submits that the examination of the accused
    under Section 313 of the CrPC in the present case does not appear to be in strict
    compliance with the law laid down by the Hon’ble Supreme Court, inasmuch as
    specific questions were not put to the accused. It is apparent that the entire
    evidence of each of the prosecution witnesses was put to the accused in a
    composite form, calling upon them to explain the circumstances.

    Page No.# 15/18

    19. The learned APP further submits that even if it is held that the accused have
    suffered prejudice on account of not being afforded an adequate opportunity to
    defend themselves during their examination under Section 313 of the CrPC, the
    appropriate relief would be to remand the matter for re-trial from the stage of
    recording the statements of the accused under Section 313 of the CrPC.

    20. This Court has considered the submissions made at the Bar, perused the
    impugned judgment, and also examined the records made available in the paper
    book in the present set of criminal appeals.

    21. It is a settled position of law that when an accused is called upon to offer an
    explanation to the evidence led against him by the prosecution, he must be made
    aware of each incriminating circumstance, so as to afford him a fair opportunity to
    explain the same. The accused also has the right to present his defence and offer
    his explanation with respect to the evidence brought on record against him.

    22. It is not the case of the State that the questions put to the accused were
    concise so as to place only the incriminating circumstances appearing against
    them. A perusal of the record of the learned Trial Court pertaining to the
    examination of the accused under Section 313 of the CrPC reveals that the
    questions were lengthy, complex, and contained voluminous details, rather than
    being framed in the form of specific interrogatories.

    23. In Govind Singhal (supra), this Court had found fault with the manner in
    which the examination of the accused under Section 313 of the CrPC was
    conducted. Upon examining the nature of the questions put to the accused in the
    said case, this Court finds no substantial difference in the manner in which the
    Page No.# 16/18

    statements were recorded therein and the manner in which the examination under
    Section 313 of the CrPC has been conducted in the present case.

    24. Since the appellants have been able to demonstrate the prejudice caused to
    them on account of their inability to effectively put forth their explanations during
    their examination under Section 313 of the CrPC, and upon a careful consideration
    of the evidence on record, more particularly the cross-examination of the
    prosecution witnesses as well as the defence evidence, this Court is of the view
    that the learned Trial Court committed an error in observing that the appellants
    had failed to explain the incriminating circumstances appearing in the evidence of
    PW-1, PW-2, and PW-3.

    25. In view of the above findings, this Court is of the considered opinion that the
    present case warrants a remand to the learned Trial Court for a re-trial from the
    stage of recording the statements of the accused, namely, Simanta Boruah, Prafulla
    Rabha, and Utpal Ray @ Utpal Ch. Ray @ Namal Ray, under Section 313 of the
    CrPC.

    26. As held in Govind Singhal (supra), this Court deems it appropriate to
    remand the case to the learned Trial Court. While doing so, the learned Sessions
    Judge shall reframe and put specific and separate questions to each of the accused
    with respect to every incriminating circumstance appearing in the evidence against
    them, and thereafter proceed to decide the case on merits in accordance with law,
    without being influenced by any observations made in this order.

    27. Considering that the occurrence took place in the year 2013, and in order to
    ensure expeditious justice, the learned Trial Court shall make an endeavour to
    Page No.# 17/18

    conclude the trial as expeditiously as possible, preferably within a period of six
    months from the date of receipt of the records, if necessary,by conducting the trial
    on a day-to-day basis.

    28. Having regard to the fact that the examination of the accused under Section
    313
    of the CrPC was not conducted in accordance with law, this Court refrains from
    adjudicating the appeals on merits. It is in this view of the matter that the case is
    remanded to the learned Trial Court to bring the proceedings to their logical
    conclusion at the earliest.

    29. Accused Nos. 1 and 2, who are stated to be in custody since 18.05.2023, are
    directed to be released on bail by the learned Trial Court on such terms and
    conditions as may be deemed appropriate to ensure their participation in the re-
    trial. This privilege of bail is granted, inter alia, on the submission of learned
    counsel for the appellants that they had remained on bail during the trial till the
    date of conviction without default.

    30. Although the learned APP has objected to the grant of bail, this Court is of
    the opinion that, considering the fact that the appellants had sin the trial, had
    surrendered after conviction, and have undergone a part of the sentence, they are
    entitled to be released on bail during the pendency of the re-trial proceedings.

    31. Insofar as the appellant in Crl. A. No. 261/2023, namely, Utpal Ray @ Utpal
    Ch. Ray @ Namal Ray, is concerned, it is submitted that he has been on bail during
    the pendency of the appeal. Accordingly, he shall continue to remain on bail till the
    conclusion of the retrial.

    Page No.# 18/18

    32. Records received, if any, be returned forthwith.

    33. Appellants at liberty to produce certified copies of the order to pray for
    release on bail.

    34. The criminal appeals stand disposed of.

    JUDGE

    Comparing Assistant



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here