Judgment : Sanjeev Kumar Sharma, J. Heard Mr. N Mahajan, learned counsel for the appellant. Also heard Mrs. A Begum, learned Addl. Public Prosecutor for the State. 2. This appeal is directed against the Judgment dated 09.08.0219, passed by the learned Sessions Judge, Nogaon, in Sessions Case No. 64(N)/2014, convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-, in default further imprisonment for 6 months. 3. The prosecution case in a nutshell is that the deceased wife was married to the appellant Bapon Kar, about 3 years prior to the alleged occurrence which took place on 15.04.2014, and out of the said wedlock, a female child was born to them, who was aged about 6 months at the time of occurrence. Although initially there was a good relation between the two i.e. husband and wife, the husband/appellant subsequently started demanding dowry and used to torture the deceased for the said purpose despite which the victim remained with the appellant. 4. It is the further case of the prosecution that the appellant, during the night-time, killed the deceased by strangulating her in their bedroom. 5. An FIR was lodged on 15.04.2014 before the O.C, Roha Police Station, and upon registration of Roha P.S Case No. 75/2014 under Section 304(B)/34 IPC, investigation commenced, culminating in a charge-sheet, whereafter, the learned Sessions Judge, Nagaon framed charges against the present appellant as well as his mother, co-accused Dipa Kar under Section 302/304 IPC. In course of trial, prosecution adduced evidence through 7 witnesses (PWs), at the end of which the accused persons were examined under Section 313 Cr.P.C., and the defence did not adduce any evidence in the case. 6. Upon consideration of the evidence and hearing the rival arguments, the learned trial court came to the view that Section 304(B) IPC, relating to dowry death, is not attracted in the present case, but found the present appellant guilty under Section 302 IPC, while the co-accused, Dipa Kar, was acquitted of the charge under Sections 304 (B)/302/34 IPC. 7. A perusal of the impugned judgment would go to show that the learned trial court had, amongst other material, relied upon the evidence of PW-6, who, in his cross-examination stated that on the relevant night the accused and the deceased were sleeping in their room. 7. A perusal of the impugned judgment would go to show that the learned trial court had, amongst other material, relied upon the evidence of PW-6, who, in his cross-examination stated that on the relevant night the accused and the deceased were sleeping in their room. The learned trial court came to the conclusion that there is no evidence that any other person had access to the same room on the relevant night, which negated the possibility of any person other than the present appellant having committed the murder of the deceased. 8. The learned trial court also relied on the evidence of PW-1, who stated that he found the accused in his house. It may be mentioned here that PW-6 is one of the brothers of the accused who also stated that the accused appellant, Bapon Kar and his wife, deceased Simpi Baruah, used to live separately in a separate room in the same courtyard. Further, from the evidence of PW-3 and PW-6, the learned trial court came to the conclusion that the dead body was found lying on the bed in the room of the accused appellant, which was also confirmed by PW-7, the I.O., who visited the house. The cause of death was also proved by the medical evidence, as held by the learned trial court. 9. Learned counsel for the appellant, in the course of his arguments, has laid stress on the fact that the evidence of PW-6, in his cross-examination had deposed to the incriminating circumstances referred to hereinabove. The said incriminating circumstance was not put to the accused during his examination under section 313 Cr.P.C, and a perusal of the aforesaid defence statement lends credence to the aforesaid submission. 10. On the other hand, learned Addl. Public Prosecutor submits that by virtue of Section 106 of the Evidence Act, the cause or manner in which the deceased died was especially within the knowledge of the appellant and therefore, the burden was upon him to prove as to how the deceased died, when he was the only other person besides their six-month-old child, who was present in the room at the time of occurrence. But in response to the query of the court as to whether he had anything else to say, he remained silent, and although he stated that he would adduce defence evidence, no such evidence was adduced by the appellant. 11. But in response to the query of the court as to whether he had anything else to say, he remained silent, and although he stated that he would adduce defence evidence, no such evidence was adduced by the appellant. 11. 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 on any such circumstance, if the same had not been put to the accused. 12. In the instant case, a perusal of the defence statement recorded under Section 313 Cr.P.C makes it clear that the evidence of PW-6, towards the end of his cross-examination wherein he stated that the accused appellant went to sleep with the deceased on the relevant night, was not put to the accused appellant during his examination, but from a perusal of the impugned judgment, more particularly at paragraph 12 thereof, it is evident that the learned trial court has relied upon the said incriminating circumstance, while arriving at its conclusion and returning a finding of guilt against the present appellant, which has undoubtedly caused prejudice to the accused. 13. In Paramjeet Singh @ Pamma vs. State of Uttarankhand, reported in (2010) 10 SCC 439 the Hon’ble Apex Court held that- Thus, it is evident from the about that the provisions of Section Cr.P.C 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. 14. 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. 14. 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 Cr.P.C has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective question Under Section 313 Cr.P.C., 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 Cr.P.C. 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. 15. In view of the fact that a vital piece of incriminating evidence, on which the prosecution case has been founded was omitted from being put to the accused, the prejudice caused to the accused is implicit and need not be proved by the accused separately. 16. 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. 17. 17. The questions already put to the accused previously during his examination under section 313 Cr.P.C need not be reiterated. 18. With the aforesaid direction, the matter is remanded to the learned trial court by setting aside the impugned judgment. 19. Needless to say that this shall not entitle the appellant to be released on bail and he shall continue to remain in custody, as he was prior to the pronouncement of the impugned judgment. 20. Send back the TCR. 21. 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. 22. The appeal stands disposed of.