Vivek Agarwal, J.

1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C") is filed being aggrieved of judgment dated 18.5.2022 passed by learned II Additional Sessions Judge-Sihora, District Jabalpur in Sessions Trial No.42/2015 whereby the present appellant No.2 Karan Chaudhary S/o.Latora Chaudhary has been convicted alongwith other two accused persons, namely, Girani Chaudhary and Chhotelal Chaudhary, who are now deceased for the offence under Section 302 read with Section 34 of the I.P.C and sentenced to undergo imprisonment for life with fine of Rs.3,000/- and in default of payment of fine to undergo additional rigorous imprisonment for three years each. Similarly, they have been convicted for the offence under Section 201 of the I.P.C and sentenced to undergo rigorous imprisonment for three years with fine of Rs.1,000/- and in default of payment of fine to undergo additional rigorous imprisonment for one year each. They have also been convicted for the offence under Section 404 of the I.P.C and sentenced to undergo rigorous imprisonment for three years with fine of Rs.1,000/- and in default of payment of fine to undergo additional rigorous imprisonment for one year each with a further direction to run all the jail sentences concurrently.

2. Learned counsel for the appellant No.2 submits that mainly the dispute was between Girani Chaudhary (since deceased) and the victim Kripali Chaudhary. The articles, which have been recovered from the possession of Girani Chaudhary, are personal belongings including silver ring belonging to Kripali Chaudhary. The only ground on which the appellant No.2 Karan Chaudhary has been convicted, is recovery of a Phavda from his possession vide Exhibit P/18, which was recovered on 10.11.2014. According to the prosecution, the mud, which was recovered from where the body was recovered matched with the soil, which was found to be sticking to the said Phavda as contained in Exhibit P/49. The D.N.A report Exhibit P/47 reveals that the deceased was biological father of Raju Chaudhary and Ravi Chaudhary. Even while granting suspension of sentence to the appellant No.2 Karan Chaudhary vide order dated 18.3.2024, a Coordinate Bench of this Court has recorded a finding that the F.S.L report is not confronted with the present appellant No.2 Karan Chaudhary while recording his statement under Section 313 of the Cr.P.C.

3. The aforesaid fact is not disputed by learned Government Advocate for the State.

4. Thus, it is evident that the conviction of appellant No.2 Karan Chaudhary has been recorded on the basis of certain material, which was not put to him while recording his statement under Section 313 of the Cr.P.C. The law in this regard is crystal clear. The purpose of Section 313 of the Cr.P.C is to examine the accused. Sub-section (1) of Section 313 of the Cr.P.C provides that "(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him; the Court - (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case; Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

5. Thus, it is evident from clause (b) of Sub-Section (1) of Section 313 of the Cr.P.C that in a warrants trial, it is the duty of the Court to put all material before the accused, which is found to be against him while recording the evidence of the prosecution witnesses. This could have been dispensed only in a summons case and not in a warrants case and if the Court fails in its duty to put across material, which came against the accused then consequences will follow.

6. In Phula Singh versus State of Himachal Pradesh (2014) 4 SCC 9, the Apex Court has held that under Section 313 of the Cr.P.C, the accused has a duty to furnish an explanation in his statement regarding any incriminating material that has been produced against him. If the accused has been given freedom to remain silent during investigation as well as before the Court then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 of the Cr.P.C is being recorded. However, in such an event, the Court would be entitled to draw an inference including such adverse inference against the accused as may be permissible in accordance with law.

7. In Dwarkanath Varma & Gaya Prasad versus The King Emperor (1933) 35 Bombay LR 507, it is held that since the word "shall" has been used, it is the duty of the Court before drawing an adverse inference against the accused on any point, to call his attention to it and ask for an explanation.

8. Similarly, in State of Punjab versus Hari Singh & Others (2009) 4 SCC 200, the Apex Court has held that the word "shall" in Clause (b) of Section 313(1) of the Cr.P.C is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. It is settled law that the Appellate Court must always consider whether by reason of failure to comply with a procedural provision, which does not affect the jurisdiction of the Court, the accused has been materially prejudiced. Reference can be made to the judgment of the Apex Court in Rama Shankar & Others versus State of West Bengal AIR 1962 SC 1239.

9. When the aforesaid aspect is examined then firstly, there is no recovery of any of the articles of the deceased from the possession of the appellant No.2 Karan Chaudhary. At best, the soil which was found sticking to the Phavda recovered at the instance of the appellant No.2 Karan Chaudhary is taken to be one of the incriminating circumstances then at best his conviction can be made for the offence under Section 201 of the I.P.C and not under Section 302 or Section 404 of the I.P.C.

10. Even in the memorandum of the accused as contained in Exhibit P/16, it is evident that it was Girani Chaudhary and Chhotelal Chaudhary, who had caused assault, which resulted in death of the deceased. Even if memorandum is read as such then acceptance is only to the extent that the appellant No.2 Karan Chaudhary had helped them in suppressing the evidence by digging a hole and hiding the dead body of the deceased.

11 . Looking to the facts & circumstances of the case and the evidence which has come on record, the conviction of the appellant No.2 Karan Chaudhary for the offence under Sections 302 and 404 of the I.P.C cannot be sustained in the eyes of law. However, in the light of the report as contained in Exhibit P/49 and the judgment of the Apex Court in Rama Shankar & Others versus State of West Bengal (supra) wherein it is held that every incriminating material may not be brought to the notice of the witness unless it is shown that grave prejudice has been caused to him, we are of the opinion that the conviction of appellant No.2 Karan Chaudhary can be altered from one under Sections 302/34, 201, 404 to one under Section 201 of the I.P.C for suppressing the evidence and he is directed to undergo rigorous imprisonment for three years with fine of Rs.1,000/- and in default of payment of fine to undergo additional rigorous imprisonment for one year.

12. In above terms, this appeal is disposed of.

13. The case property be disposed of as per the directions of the learned Trial Court.

14. Let record of the Trial Court be sent back forthwith.