Ashim Kumar Banerjee, J. - (1.) The incident occurred in 1992. The accused were charged under Section 148 as well as Section 302 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty and faced trial.
(2.) Ultimately, the learned Judge upon appreciation of evidence, held the accused Babu Majhi and Banchar Bag guilty of the charges and the accused Bulu Mallick, Kartick Bag and Murari Bag were acquitted. The judgment was delivered on August 14, 2000. Since then both the accused were in custody.
(3.) The appeals have now come up for hearing. Upon hearing Mr. Milan Mukherjee, learned counsel, appearing for the appellants and Mr. Ranjit Kumar Ghosal, learned counsel, appearing for the prosecution we find that the norms and procedure particularly laid down in Section 313 the Criminal Procedure Code were not adhered to. Mr. Mukherjee draws our attention to the recording of the examination under Section 313 of the Criminal Procedure Code of the accused Babu Majhi wherein we find that in reply to question no. 13 the answer given by the accused was kept blank by the learned Judge. The accused in reply to question no. 16 intended to adduce defence evidence. Such opportunity was not given. The accused Babu Majhi was examined on July 29, 2000. The other accused Banchar Bag was examined on August 05, 2000 where Banchar was asked whether to give any evidence to support his alibi. He said "no". The learned Judge in the order-sheet recorded that since the accused did not intend to adduce evidence the matter might be fixed for argument on August 08, 2000. The learned Judge overlooked the fact that on the earlier occasion i.e July 29, 2000 Babu Majhi expressed his desire to adduce evidence.;