JUDGMENT : Sanjeev Kumar Sharma, J. Heard Mr. A Ahmed, learned counsel for the appellant. Also heard Ms. B Bhuyan, learned Senior Counsel & Addl. Public Prosecutor for the State of Assam. 2. This appeal is directed against the Judgment & Order dated 28.03.2023 passed by the learned Sessions Judge, Barpeta in connection with Sessions Case No. 98/2018 convicting the accused/appellant under Section 302 IPC and sentencing him to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo R.I for 1 year. 3. The case of the prosecution in brief is that on 28.04.2017 one Kabel Miya lodged an FIR before the I/C of Mandia Police Out Post under Baghbor police station to that effect that in the year 2015, his daughter Farida Khatun was married to accused Saddam Hussain, that since after her marriage she was subjected to mental and physical torture by her husband accused Saddam Hussain as per ill advice of the FIR-named accused, namely, Nur Mahammad Ali. Mamtaz Begum, Sahanur, Mirjul, Matior Rahman, Sahera Khatun, wife of Lalchan, Magrab Ali and Tara Bhanu. Four months before the date of filing the FIR accused Saddam Hussain got the pregnancy of Farida Khatun aborted by administering medicine. On 27.04.2017 at about 4:00 PM, accused Saddam Hussain took Farida Khatun in a bike to the house of Tara Bhanu and on 28.04.2017 accused Saddam Hussain murdered Farida Khatun in the house of accused Tara Bhanu and with the help of one driver of a Tempo the dead body of Farida Khatun was taken to an unknown place and when it came to the notice of public, the accused threw the dead body of Farida Khatun in the compound of Chan Mamud of Habidongra village. 4. A case was registered against the accused persons U/S 120(B)/315/302/201/511 IPC. 5. At the time of filing of the charge-sheet accused Saddam Hussain and Mahar Ali were in a judicial custody. Accused Nur Mahammad Ali already got bail and accused Mamtaz Begum was shown as absconder. Final report was submitted by the I.O against Mirjul, Matior Rahman, Sahara Khatun, wife of Lalchan, Magrab Ali and Tara Bhanu. The charge-sheet was submitted U/S 120(B)/201/511 IPC against accused Nur Mahammad Ali, Mamtaz Begum, Mahar Ali and juvenile accused Sahanur and Saddam Hussain U/S 120(B)/302/201/511 IPC. 6. Final report was submitted by the I.O against Mirjul, Matior Rahman, Sahara Khatun, wife of Lalchan, Magrab Ali and Tara Bhanu. The charge-sheet was submitted U/S 120(B)/201/511 IPC against accused Nur Mahammad Ali, Mamtaz Begum, Mahar Ali and juvenile accused Sahanur and Saddam Hussain U/S 120(B)/302/201/511 IPC. 6. Upon committal, charge was framed against the four accused persons, namely, Saddam Hussain, Mahar Ali, Mamtaz Begum and Nur Mahmad Ali, under Section 302/201 IPC. 7. Upon conclusion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C and defence declined to adduce any evidence. Thereafter, the present accused/appellant was convicted under Section 302 IPC. Rest of the accused were acquitted. Hence, the present appeal. 8. A perusal of the evidence on record would go to show that other than the evidence of PW-1 informant, PW-2 Medical Officer and PW-12, the I.O., the rest of the witnesses are not relevant for the purpose of the present appeal as the evidence of the remaining witnesses are clearly hearsay, some of them having turned hostile while some others were declined to be cross-examined by the defence. 9. Informant Kabel Miya (PW-1) in his evidence has stated that his daughter Farida Khatun was subjected to physical torture by her accused husband in his house. But he cannot say as to why Farida Khatun was ill treated physically by her husband. Having learnt about physical torture one day he visited her with a dewani (village headman). On that day he noticed injuries particularly in her neck. Accused Saddam Hussain, Matiur and the other family members of accused Saddam assured him that they would provide her medical treatment. Then he was advised to approach police by the villagers. When he reached the house of accused with police, an attempt was made to assault her physically by Matiur. At that time also Farida was not allowed to leave her marital home. Thereafter, police arranged a settlement between the two sides. One week thereafter Saddam Hussain took Farida to the house of Mahar Ali and killed Farida there and thereafter the dead body of Farida Khatun was taken away in an Auto. Having learnt about the incident he informed the police. Thereafter, the dead body of Farida was recovered under a mango tree in the compound of Lalchan, elder brother of accused Saddam. By that time the accused absconded. Having learnt about the incident he informed the police. Thereafter, the dead body of Farida was recovered under a mango tree in the compound of Lalchan, elder brother of accused Saddam. By that time the accused absconded. Police took the dead body and got the postmortem done. Thereafter the dead body of Farida Khatun was handed over to him. On that day he filed the FIR. 10. In his cross examination, he stated that accused Saddam Hussain and Farida Khatun had a love affair and it culminated into a registered marriage between them. Farida was suffering from paralysis in her left side and therefore she walked slowly. In spite of her paralytic condition, Saddam Hussain married her. He denied the suggestion that he did not state before the I.O. that after knowing the fact of ill treatment caused to Farida Khatun he went to the house of the accused with one dewani and Farida Khatun was found with injuries and that the accused Saddam Hussain Matiur and the family members of Saddam Hussain assured him to provide medical treatment to Farida Khatun as the fact of attempt to assault her physically by Matiur, and also the fact of a settlement arrived between the parties at the instance of police in the police station. In his cross examination he also stated that he was not aware the fact of breathing problem of Farida Khatun that occurred at about 6:30 AM and also the fact of taking of Farida Khatun to Barpeta medical in an Auto rickshaw by accused Saddam Hussain. He denied the suggestion that Farida Khatun lost her life on her way to hospital. 11. PW-2 Dr. Mamta Devi conducted postmortem of dead body of Farida Khatun on 29.04.2017 and found no ligature mark on the neck of the dead body but on dissection neck muscles are contused, blue in colour. An inward compression fracture of the left side of hyoid bone at the junction of greater and scenes horn is present. As per the deposition of doctor nothing abnormal is detected in cranium, spinal canal, thorax, abdomen, muscles, bones and joints. Her opinion is that the death was due to asphyxia as a result of manual strangulation and all injuries described were antemortem and homicidal in nature. She did not find any ligature mark on the neck of the dead body of the deceased. Her opinion is that the death was due to asphyxia as a result of manual strangulation and all injuries described were antemortem and homicidal in nature. She did not find any ligature mark on the neck of the dead body of the deceased. A fracture on the neck was detected. There was no external injury around the neck. The injury on the neck of the deceased cannot be caused on falling, opined the M.O. 12. PW-12 Mwblik Brahma has stated that on 28.04.2017 he received a phone call from Gaonburah of Habidongra regarding the murder of Farida Khatun by her husband Saddam Hussain. He made a G.D. entry and thereafter he proceeded to the place of occurrence. He found the dead body of Farida Khatun in the courtyard of Lalchan. He recorded the statement of the witnesses, drew sketch map of the place of occurrence and the dead body was taken to the police station where the inquest was done and thereafter the dead body was sent for postmortem. He proved Ext.P-4 an extract copy of GD entry No.487 dated 28.04.2017. He submitted charge-sheet Ext.P-6 and Ext.P-6(1) as his signature. 13. In his cross examination PW-12 stated that PW-1 Kabil Miya did not tell him that he had gone to the house of Farida Khatun with a dewani to fetch her and also noticed injuries in the neck of Farida or that the accused Saddam, Matiur and the family members told him that they would provide medical treatment to Farida, that accused Matiur had chased after him to cause assault on him, that even in presence of police Farida was not allowed to leave her marital home, that thereafter police intervened the matter and allowed the accused persons to take the custody of Farida, that receiving information when he went to the house of Saddam Hussain he found the dead body of Farida under a mango tree located in the house of his elder brother, and the fact of fleeing away of accused Saddam Hussain. 14. Mr. A Ahmed, learned counsel for the appellant submitted that the findings and conclusions of the learned trial court, which was based on circumstantial evidence, inasmuch as there is no eye witness to the occurrence, are themselves based on hearsay evidence as emanating from the deposition of the PWs. 14. Mr. A Ahmed, learned counsel for the appellant submitted that the findings and conclusions of the learned trial court, which was based on circumstantial evidence, inasmuch as there is no eye witness to the occurrence, are themselves based on hearsay evidence as emanating from the deposition of the PWs. PW-1, the informant, is not an eye witness and the said fact is evident upon a perusal of his evidence. Although the PW-1 had deposed that prior to one week of the occurrence, having learnt about the physical torture upon the victim by the accused, the informant/father of the victim visited her with a diwani and he noticed injuries upon the victim, particularly on her neck and when he subsequently reached the house of the accused with the police upon advise of the villagers, an attempt was made to assault the victim by the accused Matiur, and the victim was not allowed to leave her marital home, but the same did not relate to the day of the occurrence which was one week later. It is further stated that the medical evidence also does not conclusively prove that the death of the deceased was homicidal in nature. As for the rest of the witnesses, it is apparent upon a perusal of the same that all of their depositions are hearsay in nature. 15. At this juncture, our attention is drawn to the cross-examination of PW-1 to whom it was asked whether he was aware of the fact of breathing problem of the victim having occurred at about 6:30 a.m and also the taking of the victim to Barpeta Medical College & Hospital in an Auto-rickshaw by the accused/appellant Saddam Hussain, the awareness of which facts PW-1 denied. He further denied the suggestion that the victim lost her life on her way to the hospital. Therefore, it appears from the aforesaid suggestions that the defence stand is that the deceased was with the appellant at the time of her death. 16. In the impugned judgment, at paragraph 26 thereafter, the learned trial court had held as follows: “26…….If we believe the projected fact for the accused Saddam Hussain that on that day Farida Khatun was sick and he was carrying Farida Khatun to the hospital then it will show that accused Saddam Hussain was near his wife. 16. In the impugned judgment, at paragraph 26 thereafter, the learned trial court had held as follows: “26…….If we believe the projected fact for the accused Saddam Hussain that on that day Farida Khatun was sick and he was carrying Farida Khatun to the hospital then it will show that accused Saddam Hussain was near his wife. There is no explanation from the side of the accused Saddam Hussain as to how the body of Farida Khatun came to the compound of Lalchan. In the evidence of PW-4 Joygon Nessa and PW-6 Abu Taleb Azad, it has come that they found the dead body of Farida Khatun in the compound of Lalchan.” 17. From the above, it appears that the learned trial court had relied on the aforesaid material, amongst others to return a finding of guilt as against the present appellant. However, upon a perusal of the defence statement recorded under Section 313 Cr.P.C., it is clear that the only questions put to the accused/appellant and the answers thereof are as follows: “Q: P.W. Kabel Miya has deposed that you physically assaulted your wife Farida and when he wanted to take her with him, you did not allow it. Do you have anything to say regarding this? Ans: This is false. Q: He has also deposed that that you took Farida to Mahar Ali's house, killed her there, and brought back the dead body to your home. Do you have anything to say regarding this? Ans: This is false. Q: P.W. Jakir Hussain has deposed that you threw Farida's dead body on the courtyard of Lalchand's house. Do you have anything to say? Ans: This is false. Q: Do you have anything to say regarding the incident? Ans: No. Q: Do you want to adduce evidence in defense? Ans: No.” 18. It is trite law that all the incriminating circumstances appearing in the evidence against the accused must be put to him in his examination under Section 313 Cr.P.C., and the Court cannot rely upon any such circumstance if the same has not been put to the accused, which resultantly causes prejudice to the accused. 19. Ans: No.” 18. It is trite law that all the incriminating circumstances appearing in the evidence against the accused must be put to him in his examination under Section 313 Cr.P.C., and the Court cannot rely upon any such circumstance if the same has not been put to the accused, which resultantly causes prejudice to the accused. 19. In the instant case, a perusal of the defence statement recoded under Section 313 Cr.P.C makes it clear that the evidence of PW-1 towards the end of his cross-examination when certain questions/suggestions were put to the PW- 1, which he denied and which amount to an admission on the part of the defence and therefore, constitute an incriminating piece of material against the accused/appellant, was not put to the accused/appellant while recording his defence statement, but at the same time the learned trial court, at paragraph 26 of the impugned judgment has specifically relied upon the same, as stated hereinbefore, while arriving at its conclusion and returning a finding of guilt against the present appellant, which has caused prejudice to the accused/appellant. 20. In Paramjeet Singh @ Pamma vs. State of Uttarakhanda reported in (2010) 10 SCC 439 the Hon'ble Apex Court held that it is evident from the above that the provisions of Section 313 Code of Criminal Procedure make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstances, instead, he must show that such non- examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of any inadvertent omission on the part of the court to question the accused on an incriminating circumstances cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court. 21. In other words, in the event of any inadvertent omission on the part of the court to question the accused on an incriminating circumstances cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court. 21. It is also held in Nar Singh vs. State of Haryana reported in AIR 2015 SC 310 that the question whether a trial is vitiated or not depends upon the degree of the error and the accused must show the non-compliance of Section 313 Code of Criminal Procedure has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective question Under Section 313 Code of Criminal Procedure, it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him Under Section 313 Code of Criminal Procedure. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the Appellant due to omission of some incriminating circumstances being put to the accused. 22. In the present case, in view of the fact that an important and vital piece of incriminating material which has been relied upon by the learned Court, to convict the accused appellant having been omitted during the examination of the accused/appellant under Section 313 Cr.P.C., the prejudice caused to him is implicit and need not be proved by the accused separately by the accused. 23. 23. Under the aforesaid circumstances, we are of the view that this is a fit case for remanding the matter back to the learned trial court for the limited purpose of putting all the incriminating circumstances, as may be available in the evidence recorded, including the one referred to above to the accused, by way of an additional examination under Section 313 Cr.P.C to be conducted by the learned trial court and to pass judgment afresh, taking into consideration all relevant material and after hearing the parties. 24. The questions already put to the accused previously during his examination under section 313 Cr.P.C need not be reiterated. 25. With the aforesaid direction, the matter is remanded to the learned trial court by setting aside the impugned judgment. 26. Needless to say that this shall not entitle the appellant to be released on bail and he shall continue to remain in custody untill further order. 27. Send back the TCR. 28. It is expected that upon receipt of the case records, the learned trial court shall complete the exercise, preferably within a period of 1 (one) month thereof, and pass fresh judgment as per law. 29. The appeal stands disposed of.