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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.

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