TMI Blog2014 (11) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... nd every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him - The real importance of Section 313 Code of Criminal Procedure lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point. Undoubtedly, the importance of a statement Under Section 313 Code of Criminal Procedure, insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to Section 313 Code of Criminal Procedure statement is taken at the earliest stage, the Court can make good the defect and record additional statement of the accused as that would be in the interest of all - Any omission on the part of the Court to question the accused on any inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OVERNMENT OF GUJARAT AND ORS. [ 1979 (10) TMI 232 - SUPREME COURT] , after closure of evidence of the prosecution and examination of accused Under Section 313 Code of Criminal Procedure was completed, the accused admitted his guilt presumably as a result of plea bargaining and the accused was convicted. Pointing out that the approach of the trial court was influenced by the admission of guilt made by the accused and that conviction of the accused cannot be sustained, this Court has remanded case to trial court to proceed afresh from the stage of examination Under Section 313 Code of Criminal Procedure. The objection as to the defective 313 Code of Criminal Procedure statement has not been raised in the trial court or in the High Court and the omission to put the question Under Section 313 Code of Criminal Procedure, and prejudice caused to the accused is raised before this Court for the first time. It was brought to our notice that the Appellant is in custody for about eight years. While the right of the accused to speedy trial is a valuable one, Court has to subserve the interest of justice keeping in view the right of the victim's family and the society at large. The ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bleeding. PW-7 went to call the doctor but the doctor refused to accompany him. When Daya Nand returned back, Rajbir had already succumbed to injuries. Law was set in motion by PW-7 and FIR was registered Under Section 302, Indian Penal Code. PW-14 had taken up the investigation and inquest was conducted on the body of the deceased Rajbir. Dr. J.K. Bhalla (PW-10) conducted autopsy on the body of deceased Rajbir and a country-made bullet was seized from the occipital area of the brain of deceased Rajbir. Dr. Bhalla opined that the death was due to injury to the brain and he issued Ex P-13-post mortem certificate. Site plan of the scene of occurrence was prepared and material objects were seized. The Appellant-accused was arrested on 14.03.2005 and based on his confession statement, a pistol was recovered behind a water tank in the house of the Appellant-accused. The bullet (chambered for .315 .303 caliber firearms) and country-made pistol (chambered for .315 .303 cartridges) were sent for the Ballistic Expert opinion. The Ballistic Expert opined that the country-made bullet (chambered for .315 .303 caliber firearms) had been fired from the above-said country-made pistol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused and not from any other firearm. Trial court as well as the High Court held that the above circumstances are proved by the prosecution and that they form a complete chain establishing guilt of the accused resulting in conviction of the Appellant. While doing so, trial court relied upon the Forensic Science Laboratory Report (FSL) (Ex P-12) as a vital piece of evidence against the Appellant. The High Court also relied upon FSL report as a material evidence to sustain the conviction of the Appellant. 6. Mr. Sushil Kumar Jain, learned Senior Counsel for the Appellant, contended that none of the circumstances relied upon by the courts below had been established beyond reasonable doubt and those circumstances, either cumulatively or individually, were insufficient to establish the guilt of the accused. Learned Senior Counsel mainly contended that the only incriminating circumstantial evidence against the Appellant was Ex P-12 FSL report and the same was not put to the Appellant while he was being questioned Under Section 313 of the Code of Criminal Procedure. It was submitted that Section 313 Code of Criminal Procedure makes it mandatory to put all the incriminating ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. There are two kinds of examination Under Section 313 Code of Criminal Procedure. The first Under Section 313(1)(a) Code of Criminal Procedure relates to any stage of the inquiry or trial; while the second Under Section 313(1)(b) Code of Criminal Procedure takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular and optional; but the latter is general and mandatory. In Usha K. Pillai v. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be excluded from consideration. (vide Sharad Birdichand Sarda v. State of Maharashtra (1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700. 13. In Basava R. Patil and Ors. v. State of Karnataka and Ors. (2000) 8 SCC 740, this Court considered the scope of Section 313 Code of Criminal Procedure and in paras (18) to (20) held as under: 18. What is the object of examination of an accused Under Section 313 of the Code? The section itself declares the object in explicit language that it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him . In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus: The ultimate test in determining whether or not the accused has been fairly examined Under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to meet that case. If an objection as to Section 313 Code of Criminal Procedure statement is taken at the earliest stage, the Court can make good the defect and record additional statement of the accused as that would be in the interest of all. When objections as to defective Section 313 Code of Criminal Procedure statement is raised in the appellate court, then difficulty arises for the prosecution as well as the accused. When the trial court is required to act in accordance with the mandatory provisions of Section 313 Code of Criminal Procedure, failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Insofar as non-compliance of mandatory provisions of Section 313 Code of Criminal Procedure, it is an error essentially committed by the learned Sessions Judge. Since justice suffers in the hands of the Court, the same has to be corrected or rectified in the appeal. 17. So far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ends upon the degree of the error and the accused must show that non-compliance of Section 313 Code of Criminal Procedure has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning Under Section 313 Code of Criminal Procedure, it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him Under Section 313 Code of Criminal Procedure Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the Appellant due to omission of some incriminating circumstances being put to the accused. 21. We may refer to few judgments of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has as regards the circumstances established against him but not put to him Under Section 313 Code of Criminal Procedure and the said answer can be taken into consideration. 24. In Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (1973) 2 SCC 793, this Court considered the fallout of the omission to put a question to the accused on vital circumstance appearing against him and this Court has held that the appellate court can question the counsel for the accused as regards the circumstance omitted to be put to the accused and in para 16 it was held as under: ... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and failed to perform their duties and thereby wrongly acquitted the accused. 26. This Court has thus widened the scope of the provisions concerning the examination of the accused after closing prosecution evidence and the explanation offered by the counsel of the accused at the appeal stage was held to be a sufficient substitute for the answers given by the accused himself. 27. The point then arising for our consideration is, if all relevant questions were not put to accused by the trial court as mandated Under Section 313 Code of Criminal Procedure and where the accused has also shown that prejudice has been caused to him or where prejudice is implicit, whether the appellate court is having the power to remand the case for re-decision from the stage of recording of statement Under Section 313 Code of Criminal Procedure Section 386 Code of Criminal Procedure deals with power of the appellate court. As per Sub-clause (b)(i) of Section 386 Code of Criminal Procedure, the appellate court is having power to order retrial of the case by a court of competent jurisdiction subordinate to such appellate court. Hence, if all the relevant questions were not put to accused by the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter upon merits. (iii) If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Code of Criminal Procedure has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused Under Section 313 Code of Criminal Procedure and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh; (iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused. 31. On the question of remitting the matter back to the trial court on the ground of non-compliance of mandatory provisions of Section 313 Code of Criminal Procedure, learned Counsel for the Appellant contended that in the present case, the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for laches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties. 33. Coming to the facts of this case, FSL Report (Ex-P12) was relied upon both by the trial court as well as by the High Court. The objection as to the defective 313 Code of Criminal Procedure statement has not been raised in the trial court or in the High Court and the omission to put the question Under Section 313 Code of Criminal Procedure, and prejudice caused to the accused is raised before this Court for the first time. It was brought to our notice that the Appellant is in custody for about eight years. While the right of the accused to speedy trial is a valuable one, Court has to subserve the interest of justice keeping in view the right of the victim's family and the society at large. 34. In our view, accused is not entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Code ..... X X X X Extracts X X X X X X X X Extracts X X X X
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