advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, November 2, 2014

Sec.313 Cr.P.C. - No question was raised before the Trial court that No inculpatory incidents were questioned for giving answer/Explanation- can not be raised at Appellant court - High court remanded the case as the trial court not framed the questions properly under Sec.313 of Cr.P.C. - Apex court held that In our considered opinion, the High Court fell in error in coming to the above conclusion. It is an admitted fact that the accused persons immediately after the alleged suicide did not give any report to the police about her unnatural death. There is no denial to this fact and the accused are fully aware about the fact that they have not reported the matter to the police. From bare perusal of the statement recorded under Section 313 Cr.P.C., it is evident that the Court elaborately put questions to the accused and the same have been answered in detail. The entire incident has been fully apprised to the accused including that the accused Liyakat was confronted with the Exhibit 14,15,16 and 17 to the effect that the accused Liyakat, who was absconding, was finally arrested. In answer, the accused said “not aware”. Same answer was given by the accused Ajeem Khan. The Court apprised the accused persons in a very elaborate manner about the incident that took place, the sequence of events and the material on evidence brought on record. The accused persons were fully aware about all these evidences. The appellants did not raise the question before the trial court that any prejudice has been caused to them in examination under Section 313 Cr.P.C. The burden is on the accused to establish that by not apprising all the incriminating evidences and the inculpatory material that had come in the prosecution evidence against them, prejudice has been caused resulting in miscarriage of justice. In the instant case, we are of the definite view that no prejudice or miscarriage of justice has been done to the appellants.=CRIMINAL APPEAL NO. 2079 OF 2009 Liyakat and Another ….Appellants Versus State of Rajasthan ….Respondent = 2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41966

Sec.313 Cr.P.C. - No question was raised before the Trial court that No inculpatory incidents were questioned for giving answer/Explanation- can not be raised at Appellant court  - High court remanded the case as the trial court not framed the questions properly under Sec.313 of Cr.P.C. - Apex court held that In our considered opinion, the High Court fell in error in  coming  to the above conclusion.  It is an  admitted  fact  that  the  accused  persons immediately after the alleged suicide did not give any report to the  police about her unnatural death.  There is no denial to this fact and the  accused are fully aware about the fact that they have not  reported  the  matter  to the police. From bare perusal of the statement recorded  under  Section  313 Cr.P.C., it is evident that the  Court  elaborately  put  questions  to  the accused and the same have been answered in detail.  The entire incident  has been fully apprised to the accused including that the  accused  Liyakat  was confronted with the Exhibit 14,15,16 and 17 to the effect that  the  accused Liyakat, who was absconding, was finally arrested.  In answer,  the  accused said “not aware”. Same answer was given by the accused Ajeem Khan. The Court apprised the  accused  persons  in  a  very  elaborate manner about the incident that took place, the sequence of  events  and  the material on evidence brought on record.   The  accused  persons  were  fully aware about all these evidences.  The appellants did not raise the  question before the trial court that  any  prejudice  has  been  caused  to  them  in examination under Section 313 Cr.P.C.  The  burden  is  on  the  accused  to establish that by not apprising all  the  incriminating  evidences  and  the inculpatory material that had  come  in  the  prosecution  evidence  against them, prejudice has been caused resulting in  miscarriage  of  justice.   In the instant case,  we  are  of  the  definite  view  that  no  prejudice  or miscarriage of justice has been done to the appellants.=


 Section  313  of
the Code reads as under:-
“313. Power to examine the accused:

(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).

(2) No oath shall be administered to the accused when he is  examined  under
sub- section (1).

(3) The accused shall not render himself liable to  punishment  by  refusing
to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may  be  taken  into  consideration  in
such inquiry or trial, and put in evidence for or against him in  any  other
inquiry into, or trial for, any other offence which such  answers  may  tend
to show he has committed.
(5) The Court may take help of Prosecutor and Defence Counsel  in  preparing
relevant questions which are to be put to the  accused  and  the  Court  may
permit filing of written statement by the accused as  sufficient  compliance
of this Section”


  In the case of Alister Anthony Pareira vs. State of Maharashtra,  (2012)
2 SCC 648, the provision again came for  consideration  before  this  Court,
when it held as under:-

“61. From the above, the legal position appears  to  be  this:  the  accused
must be apprised of incriminating evidence and materials brought in  by  the
prosecution against him to  enable  him  to  explain  and  respond  to  such
evidence and material. Failure in not drawing the attention of  the  accused
to the incriminating  evidence  and  inculpatory  materials  brought  in  by
prosecution specifically,  distinctly  and  separately  may  not  by  itself
render the trial against the accused  void  and  bad  in  law;  firstly,  if
having regard  to  all  the  questions  put  to  him,  he  was  afforded  an
opportunity to explain what he wanted to say in respect of prosecution  case
against him and secondly, such omission has  not  caused  prejudice  to  him
resulting in failure of justice. The burden is on the accused  to  establish
that by not apprising him of the incriminating evidence and the  inculpatory
materials  that  had  come  in  the  prosecution  evidence  against  him,  a
prejudice has been caused resulting in miscarriage of justice.”



26.         The decisions of this Court quoted hereinabove  would  show  the
consistent view that a defective examination of the  accused  under  Section
313 Cr.P.C. does  not  by  itself  vitiate  the  trial.   The  accused  must
establish prejudice thereby caused to him.  The onus is upon the accused  to
prove that by reason of his not having been examined as required by  Section
313 he has been seriously prejudiced.



27.         As noticed above, the High Court highlighted certain  facts  and
circumstances of the case, i.e. immediately after the  alleged  suicide  the
accused person did not give any report to the  police  about  her  unnatural
death; the statement of PW-10, that the door was got bolted from inside  and
it did  not  open  on  being  pushed  from  outside;  and  the  trial  court
considered that  the  accused  Liyakat  could  not  be  arrested  after  the
incident and could be arrested only on 15.5.2000. The High Court is  of  the
opinion that all these circumstances have not been put  to  the  accused  in
his statement under Section 313 Cr.P.C. which vitiated the trial.



28.   In our considered opinion, the High Court fell in error in  coming  to
the above conclusion.  It is an  admitted  fact  that  the  accused  persons
immediately after the alleged suicide did not give any report to the  police
about her unnatural death.  There is no denial to this fact and the  accused
are fully aware about the fact that they have not  reported  the  matter  to
the police. From bare perusal of the statement recorded  under  Section  313
Cr.P.C., it is evident that the  Court  elaborately  put  questions  to  the
accused and the same have been answered in detail.  The entire incident  has
been fully apprised to the accused including that the  accused  Liyakat  was
confronted with the Exhibit 14,15,16 and 17 to the effect that  the  accused
Liyakat, who was absconding, was finally arrested.  In answer,  the  accused
said “not aware”. Same answer was given by the accused Ajeem Khan.



29.         The Court apprised the  accused  persons  in  a  very  elaborate
manner about the incident that took place, the sequence of  events  and  the
material on evidence brought on record.   The  accused  persons  were  fully
aware about all these evidences.  The appellants did not raise the  question
before the trial court that  any  prejudice  has  been  caused  to  them  in
examination under Section 313 Cr.P.C.  The  burden  is  on  the  accused  to
establish that by not apprising all  the  incriminating  evidences  and  the
inculpatory material that had  come  in  the  prosecution  evidence  against
them, prejudice has been caused resulting in  miscarriage  of  justice.   In
the instant case,  we  are  of  the  definite  view  that  no  prejudice  or
miscarriage of justice has been done to the appellants.



30.         Learned counsel for  the  respondent-State  submitted  that  the
trial court has gone into the merits of the case.  He fairly submitted  that
it is not a case where matter is to be remanded back to the trial court  for
deciding fresh as held by the High Court.



32.         Taking into consideration the entire facts and circumstances  of
the case and the law discussed, hereinbefore, we are  of  the  opinion  that
the High Court has erred in law in setting aside the  trial  court  judgment
and remanding the matter back for retrial and afresh decision.  It is a  fit
case where the High Court should decide the appeal on merit.



33.         For the reasons aforesaid, we dispose of this appeal, set  aside
the judgment and order passed by the High Court and remand the  matter  back
to the High Court to decide the appeal on  merit  in  accordance  with  law.
The appellants shall remain on bail till further orders of  the  High  Court
in the matter.      

2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41966
                                                          REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION



                      CRIMINAL APPEAL NO. 2079 OF 2009

Liyakat and Another                     ….Appellants

                                   Versus

State of Rajasthan                                 ….Respondent



                                  JUDGMENT

M.Y. EQBAL, J.

       This appeal by special leave is directed  against  the  judgment  and
order dated 4th February, 2009 passed by the  High  Court  of  Rajasthan  at
Jodhpur in D.B. Criminal Appeal  No.304  of  2003  whereby  the  High  Court
partly allowed the appeal of the appellants and remanded the matter  to  the
Trial Court for further trial.



2.      The facts of the case in brief are that on 25.07.1999 at 2.00  P.M.,
one Mustaq Khan resident of Rajpura submitted  a  written  typed  report  at
Police Station Dudwakhara alleging inter alia that his two daughters  Jumila
and Bulkesh were married to  two  brothers  Liyakat  and  Jakir  of  village
Jhariya on 11.6.1993.  After marriage, his daughters told that their father-
in-law Ajeem Khan and mother-in-law Jannat  harassed  them  for  dowry,  and
therefore, as  and  when  they  used  to  come,  the  informant  was  giving
necessary articles of dowry.  It was further alleged that some  three  years
ago, when Liyakat had gone abroad, a demand of Rs.40,000/- was made and  the
informant  arranged  to  give  the  money  after  mortgaging  his  household
articles.  Still daughters were treated  with  cruelty,  inasmuch  as,  they
were not even given food.  It is also alleged in his report  that  some  two
months ago, Liyakat, (husband of deceased  daughter  Jumila)  returned  back
from abroad (Dubai) and raised a demand of she-buffalo, which  was  conveyed
by Jumila to the effect that if she-buffalo  is  not  given,  she  would  be
killed.  However, the informant could manage a cow  and  sent  his  daughter
with a cow to her in-laws house.   Mr. Khan alleged in his  report  that  on
23.7.1999, he received information that  Jumila  has  died.   Thereupon,  he
along with his brother Sattar Khan went to Jhariya, by  which  time  it  was
already night and it started raining as well.  The dead body of  Jumila  was
already buried and the body was not shown to him.  It is  alleged  that  his
other daughter Bulkesh was unconscious at that  time,  and  therefore,  they
brought her with them.

3.    On 24.7.1999, after gaining consciousness, Bulkesh disclosed that  the
three accused persons have murdered Jumila  by  throttling,  which  she  had
seen and consequently become  unconscious.   She  also  disclosed  that  the
accused planned to kill her also but she does not know as  to  how  she  was
not killed and that three persons gave beating and killed Jumila on  account
of her  having  taken  cow  instead  of  buffalo.   On  learning  this,  the
informant Mustaq Khan along with his  brother  Sattar,  Inayat  Khan,  Nawab
Khan, Yakub Khan, Wahid Ali, Bhanwaru Khan and Kasam Khan  went  to  Jhariya
and narrated the things disclosed by Bulkesh.  Thereupon, the three  accused
confessed their guilt that they had collectively killed  Jumila,  which  was
their mistake and they should be pardoned.



4.    On the basis of his report, FIR No.76/99 was registered   for  offence
under Sections 498-A, 304B and 201 of the  Indian  Penal  Code,  (in  short,
‘IPC’).  Postmortem of the dead body was got conducted, site map  and  Halat
Mauka was prepared, statements of witnesses were  recorded,  documents  were
seized, accused persons were arrested. After the investigation,  chargesheet
was filed against accused persons in the competent Court.



5.    The trial court framed charges for the offences under Sections 302  or
in the alternative 302/34 read with Section  201  and  498A  of  the  Indian
Penal Code and the trial was commenced.  During trial,  statements  of  some
five witnesses were recorded upto  9.5.2000.   Thereafter,  accused  Liyakat
could be arrested from Delhi Airport and fresh trial was  conducted  by  re-
examining the witnesses, whose statements had already been recorded.    This
fresh trial commenced on 9.10.2000,  wherein  the  prosecution  examined  13
witnesses to prove the  charges  and  several  documents  including  written
report, site map, memo of dead  body,  Panchayatnama,  statement  of  Inayat
Khan, seizure memo, postmortem report etc. have been exhibited as  evidence.




6.     The statement of accused persons under Section 313  of  the  Code  of
Criminal Procedure (in short, ‘Cr.P.C.’) were recorded, wherein the  accused
persons have refuted  the  prosecution  evidence.  The  accused  Ajeem  Khan
(father-in-law of deceased Jumila) stated that his son Liyakat used to  live
in Dubai.  Liyakat’s wife used to tell him to take her to Dubai, but due  to
unavailability of accommodation there, he showed his inability to  take  her
with him. So she committed suicide by hanging herself with the hook  of  fan
with the help of her Chunni. He sent information to her paternal  house  and
her father and father’s elder brother came to  village  Jhariya  along  with
mother and Bhabhi of the deceased, and Jumila was buried in their  presence.
 At the instructions of some people, this false case has been  lodged.  They
never demanded dowry from the Jumila and her father. The other accused  also
averred the same thing.



7.    The trial court convicted all  the  three  accused  persons.   Accused
Liyakat was sentenced to undergo life imprisonment and a fine  of  Rs.1000/-
for the offence under Section 302, IPC.   In default of payment of fine,  to
further undergo six months  simple  imprisonment.   For  the  offence  under
Section 498A IPC, he was sentenced to undergo rigorous imprisonment  of  one
year and a fine of Rs. 500/- and RI for one year and a  fine  of  Rs.  500/-
for the offence under Section 201  IPC.   Another  accused  Ajeem  Khan  and
Jannat were sentenced to undergo life imprisonment and fine  of  Rs.  1000/-
each for the offence under Section 302/34 IPC.  In  default  of  payment  of
fine, to further undergo six months S.I. The accused Ajeem Khan  and  Jannat
were sentenced to undergo RI for one year and a fine of Rs. 500/-  each  for
the offence under Section 498A IPC and in default of fine to  undergo  three
months SI each. And they were also sentenced to undergo RI for one year  and
a fine of Rs. 500/- each for the offence u/s 201 IPC.   The  sentences  were
ordered to run concurrently.



8.    Aggrieved by the judgment passed  by  the  Additional  Sessions  Judge
(Fast Track) Churu,  the  accused  persons  challenged  the  above  decision
before the High Court of Judicature for Rajasthan at  Jodhpur.   It  may  be
noted here that during the pendency of the appeal  before  the  High  Court,
accused Ajeem Khan died and his appeal was  ordered  to  have  abated.   The
High Court while partly allowing the appeal and remanding the matter to  the
trial court for further trial,  held  that  in  the  present  case,  various
material circumstances appearing against the accused from  the  material  on
record have not been put to accused under Section  313,  Cr.P.C.   The  High
Court observed that:-

“..The question  then  is  as  to  what  is  the  consequence  i.e.  whether
notwithstanding   any other material being there on record which  by  itself
may or may not be sufficient to convict the accused simply for the  omission
on the part of the learned trial court  to  put  certain  or  few  important
circumstance to the accused in his statement under Section 313, the  accused
should be allowed to go scot-free solely on that ground or whether in  every
case, where despite the fact that there is no reliable  evidence  on  record
to convict the accused still since he has been  convicted  by  relying  upon
certain circumstances not put to the  accused under Section  313,  in  every
case as a rule, the trial should be held vitiated and the matter  should  be
remanded back to the learned trial  court  or  whether  the  importance  and
significance of the circumstances omitted  to  be  put  to  the  accused  is
required  to be considered in the  sense   that  the  conviction  should  be
upheld if even after excluding those circumstances, the  conviction  can  be
upheld. We are to consider as to out of these various options, which  is  to
be chosen in circumstances, where certain circumstances have  not  been  put
to the accused in his statement under Section 313.

Laying down any other straight-jacket formula  would  cause  great  hardship
sometime on the prosecution and sometime on accused.  The accused cannot  be
allowed to go scott-free simply on the basis of the fact that  all  evidence
has not been put on him under Section 313 even though  there  is  sufficient
material available on record as in that  event  the  possibilities  are  not
ruled out about unscrupulous accused  managing  to  have  omissions  in  the
statement under Section 313 and claim immunity  even  in  heinous  offences.
Likewise, where there is no material on record  against  the  accused,  then
also the trial cannot be prolonged simply for the lapse of  the  officer  in
not putting the appropriate questions to the accused”.



9.    The High Court further held that:-

“Before parting with the case, it may be observed that it is on  account  of
the perfunctory manner of recording statement under  Section  313  that  the
matter is required  to be remanded with the further result that one  of  the
accused person, who is in jail and is to face the continued prolonged  trial
for no fault of  his.   The  officers,  at  least  in  R.H.J.S.  cadre,  are
supposed to know the importance of proper recording  of  the  statements  of
the accused under Section 313 as highlighted in series  of  judgments,  some
of which have been noticed in this judgment. The observations  may  be  sent
to the officer concerned and may also  be  brought  to  the  notice  of  the
Hon’ble Chief  Justice  if  His  Lordship  feels  appropriate  to  take  any
disciplinary action”.



10.   Hence, the present appeal by special leave  by  two  accused  persons.
As noticed above, accused Ajeem Khan died during the pendency of the  appeal
before the High Court.

11.   We have heard Mr. Pallav Shishodia, learned senior  counsel  appearing
for the appellants and Mr. Jayant Bhatt, learned counsel for  the  State  of
Rajasthan and perused the papers placed before  us  including  the  original
record received from the lower courts.

12.   Mr. Shishodia, learned senior  counsel  contended  on  behalf  of  the
appellants that the purpose of examination of an accused under Section  313,
Cr.P.C.,  1973  is  to  enable  the  accused  personally  to   explain   any
circumstances appearing in the evidence  against  him.   The  object  is  to
benefit the accused and not to nail him to any  position  in  compliance  of
principle of natural  justice  audi  altram  partem.   He  relied  upon  the
decision of this Court in Basavaraj R. Patil vs. State of Karnataka,  (2000)
8 SCC 740, and Ajay Singh vs. State of Maharashtra, (2007) 12 SCC 341.


13.   Contending that the  power  of  Appellate  Court  hearing  a  Criminal
Appeal to order for a retrial would  result  in  de  novo  trial  of  entire
matter which should be ordered in exceptional and rare cases only when  such
course of fresh trial becomes indispensable to  avert  failure  of  justice.
Mr. Shishodia, learned senior counsel  relied  upon  the  decision  of  this
Court in Mohd. Hussain @ Julfikar vs. State (Govt. of NCT of Delhi),  (2012)
9 SCC 408, State of M.P. vs. Bhooraji & Ors., (2001) 7 SCC 679  and  Ganesha
vs. Sharanappa & Anr., (2014) 1 SCC 87.

14.   According to learned  senior  counsel,  in  the  present  case,  there
appears no major omission on the part of prosecution to put its case  and/or
material evidence or circumstances for explanation  by  accused  appellants.
He contends on behalf of the appellants that  the  accused  appellants  have
explained the same and/or cross examined  the  prosecution  witness  on  all
material aspects.  Therefore, the course of partial remand  adopted  by  the
High Court in the impugned judgment is not justified  even  on  facts,  much
less  in  law  especially  when  accused  appellants  have  not  raised  the
grievances that the trial is vitiated by  not  being  given  opportunity  to
explain  the  material  evidence  and/or  circumstances  allegedly   against
accused.  Mr. Shishodia submitted that in any case  this  failure,  if  any,
can be addressed by seeking explanation of counsel  for  accused  appellants
by the Appellate Court.

15.   Concluding his arguments, learned senior  counsel  appearing  for  the
appellants drew our attention to the case of  Fahim  Khan  and  another  vs.
State of Bihar, (2011) 13 SCC 147, wherein this Court  in  somewhat  similar
circumstances was pleased to remit the matter back to  the  High  Court  for
decision on merits.

16.   The High Court proceeded  on  the  basis  that  there  is  perfunctory
examination of the accused under Section 313 Cr.P.C. The High court  further
proceeded on the basis that the trial court has used it against the  accused
and considered the circumstances viz. that  immediately  after  the  alleged
suicide, the accused persons did not give any report to  the  police   after
her unnatural death with the result that enquiry  under  Section  174  could
not be done. The relevant portion of  the  High  Court  judgment  is  quoted
hereinbelow:-
“If the present case is considered from the above  standpoint,  as  we  have
found that the  learned  trial  Court  has  used  against  the  accused  and
considered the  circumstances  viz.,  that  immediately  after  the  alleged
suicide the accused persons did not give any report to the police about  her
unnatural death with the result that an inquiry under Section 174 could  not
be done and no reason has been put forward by the accused  for  not  lodging
the report. Similarly, the learned trial Court has relied upon  Ex.P/4A  and
the statement of P.W.10 that in the Halat Mauka, the  door  was  got  bolted
from inside and it did get opened on being pushed  from  outside.  Likewise,
the learned 40 trial Court has also considered that in the site plan  Ex.P/4
at Point E a 15 inch x 15 inch hole has been made anew in the 9  inch  thick
wall in an attempt to show it to be a case of suicide and hole  having  been
made with a view to show an attempt on the part of the accused to  save  the
deceased while there was no justification for making this opening  and  thus
a false story of suicide has been projected.  Similarly  the  learned  trial
Court has also considered that the accused Liyakat despite being husband  of
the deceased could not be arrested after the incident and could be  arrested
only on 15.5.2000 and this absconding  of  the  accused  also  confirms  his
being guilty. In our view, in this regard there is material on record  being
Ex.P/21 the warrant having been obtained  for  arresting  the  accused,  the
fact is that challan was filed against the accused under Section 299 and  in
that trial statements of 5 witnesses were recorded and then after arrest  of
the accused Liyakat, the matter was retried. Then  we  also  find  that  the
learned Public Prosecutor has pressed into service the circumstance that  as
deposed by Mustaq P.W.1 that information about the death of Jumila  was  not
conveyed to them and she was buried as a incriminating circumstance  against
the accused. We have found that all these circumstances have  not  been  put
to the accused in his statement under Section 313  and  those  circumstances
by themselves so also in conjunction with the existing  material  on  record
with regard to which we do not propose to express any  opinion  either  ways
lest it should prejudice  the  case  of  either  side,  does  have  material
bearing on the aspect, as to whether the accused/s can be convicted  or  are
entitled to be acquitted.”


17.   On the basis of the aforesaid finding,  the  High  Court  allowed  the
appeal, set aside the judgment of the trial court and  remanded  the  matter
back to the trial court to retry the matter at the stage  of  completion  of
prosecution evidence and seek explanation of the  accused  with  respect  to
all the circumstances appearing against them.

18.   Prima facie, we do not agree with the view taken  by  the  High  Court
remanding the matter back to the trial court for retrial.   Section  313  of
the Code reads as under:-
“313. Power to examine the accused:

(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).

(2) No oath shall be administered to the accused when he is  examined  under
sub- section (1).

(3) The accused shall not render himself liable to  punishment  by  refusing
to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may  be  taken  into  consideration  in
such inquiry or trial, and put in evidence for or against him in  any  other
inquiry into, or trial for, any other offence which such  answers  may  tend
to show he has committed.
(5) The Court may take help of Prosecutor and Defence Counsel  in  preparing
relevant questions which are to be put to the  accused  and  the  Court  may
permit filing of written statement by the accused as  sufficient  compliance
of this Section”

19.   From bare perusal of the aforesaid provision, it is manifest that  the
Section intended to afford a person accused of a  crime  an  opportunity  to
explain the circumstances appearing in  evidence  against  him.  Sub-section
(1) of Section 313 empowers the Court to put such question  to  the  accused
as is considered necessary at the stage of the inquiry for  trial.   At  the
same time it imposes a duty and makes it mandatory on the Court to  question
him generally on the prosecution having completed  the  examination  of  its
witnesses and before the accused is  called on to enter  upon  his  defence.
Indisputably, the attention of the accused should be invited to  inculpatory
piece of evidence or circumstances  laid  on  record  and  to  give  him  an
opportunity to offer an explanation if he chooses to do it.  The purpose  of
examination of the accused under Section 313 of the  Code  is  to  give  the
accused an opportunity to explain the incriminating material which has  come
on the record.  The scope and purpose of Section 313 of the  Code  came  for
consideration before this Court in a number of judgments, few of  which  are
discussed for the present case.

20.   In the case of Sharad Birdhi Chand Sarda  vs.  State  of  Maharashtra,
AIR 1984 SC 1622, this Court observed that when no question has been put  to
the appellant in the course of his examination  under  Section  313  Cr.P.C.
about any ill-treatment of the deceased by the appellant or his parents  and
if the explanation has not been sought for, by putting the circumstances  to
the appellant-accused in his examination under Section 313 Cr.P.C. that  has
to be excluded from consideration.


21.   In the  case  of  Shivaji  Sahabrao  Bobade  and  Anr.  vs.  State  of
Maharashtra, (1973) 2 SCC 793, three Judges Bench of this  Court  considered
the provision of Section 313 of the Code.   Writing  the  judgment,  Justice
Krishna Iyer, J. observed:-

“16.  It  is  trite  law,  nevertheless  fundamental,  that  the  prisoner’s
attention should be drawn to every inculpatory material so as to enable  him
to explain it. This is the basic fairness of a criminal trial  and  failures
in this area may gravely imperil  the  validity  of  the  trial  itself,  if
consequential miscarriage of justice has  flowed.  However,  where  such  an
omission has occurred it does not ipso facto  vitiate  the  proceedings  and
prejudice occasioned by such defect must be established by the  accused.  In
the event of evidentiary material not being put to the  accused,  the  court
must ordinarily eschew such material from consideration. It is also open  to
the appellate court to call upon the counsel for the accused  to  show  what
explanation  the  accused  has  as  regards  the  circumstances  established
against him but not put to him and if the accused is  unable  to  offer  the
appellate  court  any  plausible   or   reasonable   explanation   of   such
circumstances, the Court may assume that no  acceptable  answer  exists  and
that even if the accused had been questioned  at  the  proper  time  in  the
trial court he would not have been able to furnish any good  ground  to  get
out of the circumstances on  which  the  trial  court  had  relied  for  its
conviction. In such a case, the Court proceeds on the footing that though  a
grave irregularity has occurred as  regards  compliance  with  Section  342,
CrPC, the omission has not been  shown  to  have  caused  prejudice  to  the
accused.



22.  In the case of S. Harnam Singh vs. State (Delhi Admn.),  (1976)  2  SCC
819, this Court held as under:-

“22. Section 342 of the Cr.PC, 1898, casts a duty on the Court  to  put,  at
any enquiry or trial questions to the accused for the  purpose  of  enabling
him to explain any circumstances appearing in the evidence against  him.  It
follows as a necessary corollary therefrom that each  material  circumstance
appearing in evidence against the accused is  required  to  be  put  to  him
specifically, distinctly and separately. Failure  to  do  so  amounts  to  a
serious irregularity vitiating the trial if it is shown to  have  prejudiced
the accused. If the irregularity does not, in fact, occasion  a  failure  of
justice, it is curable under Section 537 of the Code.

23. In the instant case, as already observed, the time of  the  actual  exit
of the goods in question from the Mills was a vital  circumstance  appearing
in  the  prosecution  evidence.  Indeed,  Counsel  for  the  respondent  has
primarily staked his arguments on it to show that the goods could  not  have
reached the Goods Shed before 10 a.m. on the 11th. In view of  Section  342,
therefore, it was incumbent on the trial  Court  to  put  this  circumstance
clearly and distinctly to the accused during his  examination.  The  failure
to do so amounts to a grave irregularity. The gravity of  this  irregularity
was accentuated by another lapse on the part of the prosecution. That  lapse
was the failure to produce three  crucial  witnesses,  namely,  Chiranjilal,
the truck driver, Mukand Lal, the Marker, and Om Parkash, the  Railway  Gate
Clerk with his record. It may be noted that these witnesses  were  cited  by
the prosecution in the calendar of witnesses and  were  required  to  appear
along with the records maintained by them. But  subsequently,  without  good
reason, they were given up. They were the persons who could  give  the  best
and direct evidence with regard to the receipt of these goods in  the  Goods
Shed. The non-production of this evidence has certainly prejudiced the  fair
trial of the appellant.

24. Mr. H.R. Khanna points out that the  question  of  the  appellant  being
prejudiced owing to the failure of the prosecution to put this  circumstance
to him in examination under Section  342,  was  not  raised  in  the  Courts
below, and consequently, the appellant is debarred from raising it now.”



23.   In the case of Asraf Ali vs. State of Assam, (2008) 16 SCC  328,  this
Court held that:-

“21. Section 313 of the Code casts a duty on the court to put in an  enquiry
or trial questions to the  accused  for  the  purpose  of  enabling  him  to
explain any of the circumstances appearing in the evidence against  him.  It
follows as a necessary corollary therefrom that each  material  circumstance
appearing in the evidence against the accused is required to be put  to  him
specifically, distinctly and separately and failure to do so  amounts  to  a
serious irregularity vitiating trial, if it is shown that  the  accused  was
prejudice.

22. The object of Section 313 of the Code is to establish a direct  dialogue
between the court and the accused. If a point in the evidence  is  important
against the accused, and the conviction is intended to be based upon it,  it
is right and proper that the accused should be questioned about  the  matter
and be given an opportunity of explaining it.  Where  no  specific  question
has been  put  by  the  trial  court  on  an  inculpatory  material  in  the
prosecution evidence, it would vitiate the trial. Of course, all  these  are
subject to  rider  whether  they  have  caused  miscarriage  of  justice  or
prejudice. This Court also expressed a similar view in S. Harnam  Singh  vs.
State (Delhi Admn.) (1976) 2 SCC 819 while dealing with Section 342  of  the
Criminal Procedure Code, 1898 (corresponding to Section 313  of  the  Code).
Non-indication of inculpatory material in its relevant facts  by  the  trial
court to the accused adds to the  vulnerability  of  the  prosecution  case.
Recording of a  statement  of  the  accused  under  Section  313  is  not  a
purposeless exercise.”



24.          In  the  case  of  Paramjeet  Singh  @  Pamma  vs.   State   of
Uttarakhand, (2010)10 SCC 439, this  Court  after  considering  the  earlier
views of this Court observed in para 13 as under:-

“13.  Though a conviction may be based solely  on  circumstantial  evidence,
this is something that the court must bear in mind  while  deciding  a  case
involving the commission of a serious  offence  in  a  gruesome  manner.  In
Sharad Birdhichand Sarda vs. State of Maharashtra, this Court observed  that
it is well settled that the prosecution’s case must stand  or  fall  on  its
own legs and cannot derive any strength from the  weakness  of  the  defence
put up by the accused. However, a false defence may be called into aid  only
to lend assurance  to  the  court  where  various  links  in  the  chain  of
circumstantial [pic]evidence are in themselves  complete.  This  Court  also
discussed the nature, character and essential proof required in  a  criminal
case which rests on circumstantial evidence alone and held  as  under:  (SCC
p. 185, para 153)

“(1) the circumstances from which the conclusion of guilt  is  to  be  drawn
should be fully established,

*     *     *

(2) the facts so established should be consistent only with  the  hypothesis
of the guilt of the accused, that is to say, they should not be  explainable
on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible  hypothesis  except  the  one  to  be
proved, and

(5) there must be a chain of evidence  so  complete  as  not  to  leave  any
reasonable ground for the conclusion consistent with the  innocence  of  the
accused and must show that in all human probability the act must  have  been
done by the accused.” (emphasis supplied)



25. In the case of Alister Anthony Pareira vs. State of Maharashtra,  (2012)
2 SCC 648, the provision again came for  consideration  before  this  Court,
when it held as under:-

“61. From the above, the legal position appears  to  be  this:  the  accused
must be apprised of incriminating evidence and materials brought in  by  the
prosecution against him to  enable  him  to  explain  and  respond  to  such
evidence and material. Failure in not drawing the attention of  the  accused
to the incriminating  evidence  and  inculpatory  materials  brought  in  by
prosecution specifically,  distinctly  and  separately  may  not  by  itself
render the trial against the accused  void  and  bad  in  law;  firstly,  if
having regard  to  all  the  questions  put  to  him,  he  was  afforded  an
opportunity to explain what he wanted to say in respect of prosecution  case
against him and secondly, such omission has  not  caused  prejudice  to  him
resulting in failure of justice. The burden is on the accused  to  establish
that by not apprising him of the incriminating evidence and the  inculpatory
materials  that  had  come  in  the  prosecution  evidence  against  him,  a
prejudice has been caused resulting in miscarriage of justice.”



26.         The decisions of this Court quoted hereinabove  would  show  the
consistent view that a defective examination of the  accused  under  Section
313 Cr.P.C. does  not  by  itself  vitiate  the  trial.   The  accused  must
establish prejudice thereby caused to him.  The onus is upon the accused  to
prove that by reason of his not having been examined as required by  Section
313 he has been seriously prejudiced.



27.         As noticed above, the High Court highlighted certain  facts  and
circumstances of the case, i.e. immediately after the  alleged  suicide  the
accused person did not give any report to the  police  about  her  unnatural
death; the statement of PW-10, that the door was got bolted from inside  and
it did  not  open  on  being  pushed  from  outside;  and  the  trial  court
considered that  the  accused  Liyakat  could  not  be  arrested  after  the
incident and could be arrested only on 15.5.2000. The High Court is  of  the
opinion that all these circumstances have not been put  to  the  accused  in
his statement under Section 313 Cr.P.C. which vitiated the trial.



28.   In our considered opinion, the High Court fell in error in  coming  to
the above conclusion.  It is an  admitted  fact  that  the  accused  persons
immediately after the alleged suicide did not give any report to the  police
about her unnatural death.  There is no denial to this fact and the  accused
are fully aware about the fact that they have not  reported  the  matter  to
the police. From bare perusal of the statement recorded  under  Section  313
Cr.P.C., it is evident that the  Court  elaborately  put  questions  to  the
accused and the same have been answered in detail.  The entire incident  has
been fully apprised to the accused including that the  accused  Liyakat  was
confronted with the Exhibit 14,15,16 and 17 to the effect that  the  accused
Liyakat, who was absconding, was finally arrested.  In answer,  the  accused
said “not aware”. Same answer was given by the accused Ajeem Khan.



29.         The Court apprised the  accused  persons  in  a  very  elaborate
manner about the incident that took place, the sequence of  events  and  the
material on evidence brought on record.   The  accused  persons  were  fully
aware about all these evidences.  The appellants did not raise the  question
before the trial court that  any  prejudice  has  been  caused  to  them  in
examination under Section 313 Cr.P.C.  The  burden  is  on  the  accused  to
establish that by not apprising all  the  incriminating  evidences  and  the
inculpatory material that had  come  in  the  prosecution  evidence  against
them, prejudice has been caused resulting in  miscarriage  of  justice.   In
the instant case,  we  are  of  the  definite  view  that  no  prejudice  or
miscarriage of justice has been done to the appellants.



30.         Learned counsel for  the  respondent-State  submitted  that  the
trial court has gone into the merits of the case.  He fairly submitted  that
it is not a case where matter is to be remanded back to the trial court  for
deciding fresh as held by the High Court.



32.         Taking into consideration the entire facts and circumstances  of
the case and the law discussed, hereinbefore, we are  of  the  opinion  that
the High Court has erred in law in setting aside the  trial  court  judgment
and remanding the matter back for retrial and afresh decision.  It is a  fit
case where the High Court should decide the appeal on merit.



33.         For the reasons aforesaid, we dispose of this appeal, set  aside
the judgment and order passed by the High Court and remand the  matter  back
to the High Court to decide the appeal on  merit  in  accordance  with  law.
The appellants shall remain on bail till further orders of  the  High  Court
in the matter.



                                                            ………..……….………….J.
                                                               ( M.Y. Eqbal)



                                                            ………..……….………….J.
                                                       (Abhay Manohar Sapre)
New Delhi
September 26, 2014.




No comments:

Post a Comment

Note: Only a member of this blog may post a comment.