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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

JUSTICE SUJOY PAUL

&

JUSTICE AMAR NATH (KESHARWANI)

CRIMINAL APPEAL No. 859 OF 2010

BETWEEN:-

SUNIL S/O SHRI LAKHAN VERMA AGED ABOUT

30 YEARS OCCUPATION-CULTIVATOR R/O-

BABUTOLA P.S.- AMARWADA DIST-CHHINDWARA

(MADHYA PRADESH)

.....APPELLANT

(SHRI J.K. DEHARIYA - ADVOCATE FOR APPELLANT )

AND

THE STATE OF MADHYA PRADESH, THROUGH

POLICE STATION-AMARWADA DISTRICT

CHHINDWARA (M.P.)

.....RESPONDENT

(BY SHRI AJAY SHUKLA – GOVERNMENT ADVOCATE)

…………………………………………………………………………..

Reserved on: 18/01/2023

Pronounced on: 08/02/2023

………………………………………………………………………….

This Criminal Appeal having been heard and reserved for

judgment, coming on for pronouncement on this day, Justice Amar

Nath (Kesharwani) pronounced the following:

J U D G M E N T

This is an appeal filed under Section 374(2) of the Code of

Criminal Procedure, 1973 (In short “Cr.P.C.”) against the judgment,

dated 29.04.2009 passed in Sessions Trial No. 94/2009 by learned

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Additional Sessions Judge, Amarwada, District Chhindwara whereby

the appellant was held guilty for committing an offence punishable

under Sections 302 and 201 of Indian Penal Code (hereinafter referred

as “IPC”) and directed him to undergo sentence of life imprisonment

with fine of Rs.1000/- and R.I. for 7 years with fine of Rs. 1000/-

respectively, with default stipulation.

2.The prosecution story, in brief, is that on 08.03.2009,

information was given by ‘Janpad Sadasya’ Haridas Verman (PW-3)

s/o Likhi Ram Verma r/o Babutota on the mobile phone of Inspector

Vinod Shrivastav, S.H.O. Amarwada, that in Banjara Mohalla of

Village Babutola, a man was murdered and burned by appellant Sunil

Verma. On the said information, S.H.O. Vinod Shrivastav (PW-13) has

entered that information in Roznamchasanha as entry no. 445 at 07:30

A.M. and proceeded towards the spot to look into the matter. When

Inspector Vinod Shrivastav (PW-13) reached the spot at around 09:00

AM, informer/complainant Ku. Bhujlo Bai (PW-1) has informed

Inspector Vinod Shrivastav (PW-13), at village Babutola that she is a

resident of “Banjara Mohalla of Village Babutola and she does

household chores. On Saturday night, at around 11:00 PM, when she

was sleeping in her house, suddenly someone pushed the door of her

house, she woke up and when she looked through the space between

the door, she saw that Sunil Verma (appellant) was standing in front of

the door and put on the door latches of her house from outside and

went away. Then she got out of her house from the backdoor and saw

that appellant was chasing a man while coming from the road passing

by Jagdevs and Deepchand's house, and while doing so, he was

throwing stones at the deceased, some of the stones hit him and he fell

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down but the appellant continued to hit him with stones and after that

appellant caught hold of the leg of that person (deceased) and dragged

him in front of the house of Gaura Bai (PW-5). Subsequently, he

collected pieces of ‘Tatera’ from the nearby area and put them over the

body of deceased and set it on fire and again he (appellant Sunil

Verma) picked a stone from there and thrown them at the burning man

who was lying on the ground. She got scared and went back inside her

house. On the next day, at around 06:00 A.M., she came out from the

back side of her house and saw that the man, who was beaten by

appellant and set on fire was lying dead there and further informed that

the man who was lying dead was Annilal Dheemar and informed that

Annilal Dheemar was killed by hitting stones and burnt afterward by

Sunil (appellant) and the same was seen by Gauri Bai (PW-5) and

Dashoda Bai (PW-2). On the said information, Inspector Vinod

Shrivastava (PW-13) registered Dehati Nalishi (Ex.P/1) on spot and

has also lodged Dehati Merg intimation (Ex.P/2). After Merg-inquiry,

First Information Report Crime No. 80/2009 under Section 302 of

I.P.C.(Ex. P/18) was registered at Police Station- Amarwada, District-

Chhindwara.

3.During the investigation, spot map (Ex.P/3) was prepared and

blood stained soil samples, stones, blood stained half burnt pieces of

wood, pieces of burnt clothes and ashes were seized as per the seizure

memo (Ex. P/6) from the place of incidence. Naksha-Panchanama of

dead body (Ex. P/13) was prepared in the presence of Panch witnesses.

The dead body of Annilal was sent for autopsy, which was conducted

by Dr. S.K. Dubey (PW-4) who opined that the “death was due to

‘asphyxia’ shock and as a result of extensive burns. The whole body is

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burnt and two lacerated wounds on occipital region of the skull were

found and the autopsy report (Ex. P/7) was prepared. During the

investigation, the appellant was taken in custody and his disclosure

statement (Ex. P/15) was recorded under Section 27 of the Evidence

Act and as per his disclosure statement (Ex. P/15), blood stained

clothes of the appellant were seized as per seizure memo (Ex. P/16).

The appellant was arrested vide arrest memo (Ex. P/14). During the

investigation, statements of witnesses were recorded and seized articles

were sent to Forensic Science Laboratory (hereinafter referred to as

“FSL”) for chemical examination. As per the FSL report(Ex. P/22),

blood group i.e. ‘O’ was found on the clothes of the appellant, which

were seized at the instance of the appellant, and half-burnt clothes of

the deceased. Upon completion of the investigation, charge-sheet was

filed before the jurisdictional Magistrate from where the trial was

committed to the Sessions Court, Chhindwara. After that, the case was

made over to the Additional Sessions Judge, Amarwada, District-

Chhindwara for disposal according to law. Learned Trial Court has

framed charges under Sections 302 and 201 of the I.P.C. against the

appellant, which he has denied and pleaded for trial.

4.The prosecution has examined 13 witnesses and exhibited 22

documents and the appellant has not examined any witness in his

defence. After evaluating the evidence that came on record, the learned

Trial Court found the appellant as guilty and sentenced him as

mentioned hereinabove. Being aggrieved by the judgment of

conviction and sentence, the appellant has filed this Criminal Appeal

before this Court.

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5.Learned counsel for the appellant submits that Bhujlo Bai (PW-

1), who lodged the Dehati Nalishi (Ex.P/1), and Dashoda Bai (PW-2)

and Gaura Bai (PW-5), whose name were mentioned as eye-witnesses

in Dehati Nalishi (Ex.P/1) did not support the prosecution case before

the Trial Court and stated that they have not seen any such incident.

Learned Trial Court has convicted the appellant on the sole evidence of

Deepchand (PW-9) and FSL report (Ex. P/22) and submitted that

Deepchand (PW-9) was not named as an eye-witness in the Dehati

Nalishi (Ex.P/1) and FIR (Ex.P/18) and his statement under Section

161 of Cr.P.C. was also not promptly recorded. The learned Trial Court

has erred in accepting and appreciating the evidence of Deepchand

(PW-9). Because when the police force reached the spot and prepared

the inquest report in the presence of the witnesses after calling the

villagers, at that time, Deepchand (PW-9) did not come forward to

report the incident to police officers. Learned counsel for the appellant

also submits that in the statement recorded under Section 161 of

Cr.P.C. (Ex. D/1), it is mentioned that the time of the incident is around

10:30 P.M., whereas PW-9 has stated before the Trial Court that he saw

the dead body of the deceased in burnt condition at around 08:00-09:00

P.M in front of the house of Shiv Prasad.

6.Learned counsel for the appellant has also drawn the attention of

this court to para nos. 1 and 2 of the statement of Deepchand (PW-9)

wherein he has stated that in the night at around 08:00-09:00 P.M.,

when deceased Annilal was sitting in the house of Jagdish, family

members of Jagdish were also sitting there, then appellant Sunil also

came there and kicked Annilal (deceased). At that juncture, Jagdish

intervened in the matter and after that appellant and deceased Annilal

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went therefrom and after that, he saw the dead body of Annilal in burnt

condition at around 08:00-09:00 P.M., whereas in the statement

recorded under Section 161 of Cr.P.C., (Ex. D/1), it is mentioned that

on the date of the incident i.e. 07.03.2009 at around 09:30 P.M., when

he was sleeping in the house, he heard Annilal and Jagdev Banjara

talking with each other and at around 10:30 P.M., when he went to

urinal at back portion of his house, he saw that Annilal and Sunil were

talking with each other and at that time, he witnessed the quarrel

between Sunil and Annilal and at that time appellant Sunil pelted

stones on the deceased.

7.Learned counsel for the appellant further submits that

contradictions and omissions in the statement of PW-9 recorded under

Section 161 of Cr.P.C. and the statement recorded before Trial Court

are very substantial and therefore, Deepchand (PW-9) is not a reliable

witness and submits that if Deepchand (PW-9) had seen the whole

incident then why he did not disclose this fact to the police

immediately after the incident. It is urged that the version of

Deepchand (PW-9) has not been corroborated by any other witnesses.

The prosecution has not been able to prove any motive for commission

of murder of deceased by the appellant. There is no recovery of stone

from the possession of the appellant. The Trial Court has wrongly

relied upon the FSL report (Ex.P/22) in the impugned judgment and

concluded that as the appellant has not given any explanation regarding

human blood which was found on his clothes and on that basis

concluded that the appellant has caused the murder of the deceased

Annilal and burnt the body to dissipate the evidence of the crime,

whereas no question were put to the appellant regarding FSL report

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(Ex.P-22) under accused statement recorded under Section 313 of

Cr.P.C., therefore, contents of FSL report (Ex.P-22) cannot be used

against the appellant. The judgment of the Trial Court is contrary to the

facts and law. The Trial Court did not appreciate the prosecution

evidence in correct perspective and caused great prejudice and injustice

to the appellant. Therefore, the conviction and sentence imposed by the

learned Trial Court under Sections 302 and 201 of I.P.C. is erroneous

and the sentence for life and R.I. for 07 years, deserves to be set aside.

8.Learned counsel for the State opposed the aforesaid prayer by

submitting that the appellant has committed the murder of Annilal

Dheemar in a cruel manner and the blood group was matched with the

clothes of the appellant and half-burnt clothes of the deceased. Hence,

the learned Trial Court has rightly convicted the appellant under

Sections 302 and 201 of I.P.C. and the appeal is liable to be dismissed

and prayed accordingly.

9.We have perused the record of the learned Trial Court and

considered the arguments advanced by the learned counsel for the

appellant as well as Government Advocate.

10.It reveals from the record that on the information given by

Kumari Bhujlo Bai (P.W.-1) a Dehati Nalishi (Ex.P-1), was registered

on 08.03.2009 at around 08:30 A.M. by Inspector Vinod Shrivastav

(PW-13). As per (Ex.P-1), Ku. Bhujlo Bai (P.W.-1) was an eye-witness

and Dashoda Bai (P.W.-2) and Gaura Bai (P.W.-5) were also witnesses

of the incident but Ku. Bhujlo Bai (P.W-1), Dashoda Bai (PW-2), and

Gaura Bai (PW-5) have not supported the prosecution story before the

Trial Court. Though, Ku. Bhujlo Bai (P.W.-1) has admitted her

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signature on Dehati Nalishi (Ex.P-1), Dehati Merg Suchna (Ex.P-2),

and Site Map (Ex.P-3).

11.Deepchand (P.W.-9) has supported the prosecution version

before the Trial Court and has stated in examination-in-chief before the

Trial Court that on the date of the incident at around 08:00 P.M.,

deceased was sitting in front of the house of Jagdish Dheemar and

family members of Jagdish Dheemar were also sitting there. At that

facit of time, appellant Sunil came there and kicked Annilal (deceased).

Then, Jagdish intervened in the matter, and thereafter Sunil and

Annilal, each went on their own way. PW-9 has also deposed before

the Trial Court that between 08:00-09:00 P.M., he saw the dead body of

deceased Annilal lying in front of the house of Shiv Prasad and stated

that Sunil picked up some ‘tatera’/thrash lying nearby his house and

used it to set the dead body of Annilal on fire and Sunil also said that if

someone deposed or talked about this incident, then he will also set

their house on fire. When PW-9 was confronted with his previous

statement recorded under Section 161 of Cr.P.C., he stated that the

dispute started at 08:00 P.M. and the incident of burning took place at

around 10:00 P.M.

12.Kumari Bhujlo bai (P.W.-1) who lodged the Dehati-Nalsi (Ex.P-

1) has not proved and supported the prosecution version and Dasoda

Bai (P.W.-2) and Gaura Bai (P.W.-5), who were mentioned as eye-

witnesses, they also did not support the prosecution case. Except

Deepchand (P.W.-9), other independent witnesses of the incident

Haridas (P.W.-3), Jhuniya Bai (P.W.-6), Rupa Bai (P.W.-7), Durga Bai

(P.W.-8) and Komu (P.W.-12) have also not supported the prosecution

story. Om Kumari (PW-10) is a hearsay witness.

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13.Now, we shall consider the argument of learned counsel for

appellant- whether appellant was properly confronted with

incriminating evidence/material while questioning him under Section

313 of Cr.P.C. It reveals from the record of the Trial Court that on the

basis of statement of Deepchand (PW-9), Trial Court has framed

questions no. 8 to 11 and regarding FSL report (Ex.P-22), Trial Court

has framed question No.28 as mentioned below :-

iz’u8&nhipan v0lk0 dk dguk gS fd ?kVuk rhupkj ekg iqjkuh jkr ds 8

cts dh gS e`rd vEeh txnh’k <hej ds edku ij cSBk gqvk Fkk vkSj txnh’k ds

ifjokj ds yksx Hkh Fks rqEgkjk D;k dguk gS\

mRrj& ekywe ughaA

iz’u9& mDr lk{kh dk dguk gS fd rqeus ekSds ij vkdj vEehyky dks ykr ekjh

txnh’ku us chp cpko djk fy;k Fkk vkSj rqEgsa ckgj dj fn;k Fkk rqEgkjk D;k

dguk gS\

mRrj&>wB gSaA

iz’u10& mDr lk{kh dk dguk gS fd jkr ds 8&9 cts mlus vEeh dh tyh gqbZ

yk’k ns[kh Fkh mlds ?kj ds cxy esa dpjk iM+k gqvk Fkk rqeus e`rd ds Åij

Mkydj tyk fn;k rqEgkjk D;k dguk gS\

mRrj& ekywe ughaA

iz’u11& mDr lk{kh dk dguk gS fd rqeus /kedh nh fd ;fn xokgh nh rks

mlds ?kj ij vkx yxk nwaxk rqEgkjk D;k dguk gS\

mRrj& >wB gSA

iz’u28& mDr lk{kh dk dguk gS fd mlus tIrh 'kqnk lkeku ijh{k.k gsrq fof/k

foKku iz;ksx 'kkyk lkxj Hkstk FkkA mldh ijh{k.k fjiksVZ iz0ih022 gS rqEgkjk D;k

dguk gS\

mRrj& ekywe ughaA

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14.In para Nos.17, 20 and 22 of the impugned judgment, the Trial

Court has also considered certain part of evidence against the appellant

based on the cross-examination of PW-9, but Trial Court has not

framed any question regarding those facts and no opportunity was

given to the appellant to explain that incriminating evidence.

15.Trial Court has also placed reliance upon the FSL report (Ex.P-

22) to convict the appellant and in Para-14 of the impugned judgment,

Trial Court has stated that –

^^14-,Q0,l0,y0 lkxj ls izkIr fjiksVZ ds vuqlkj ?kVuk LFky ls

tIr feV~Vh] iRFkj] diM+ksa ds tys gq, VqdM+s] vkjksih ls tIr 'kVZ] LosVj]

xeNk] /kksrh] e`rd ds v/ktys dIkM+s vkSj vkjksih dk QqyisaV ij ekuo

jDr ik;k x;k gS ftls ,Q0,l0,y0 fjiksVZ fnukad 31-12-2009 esa

ch]Mh]th],p]vkbZ]ts]ds],y],e],u]ih ls lacksf/kr fd;k gSA ,Q0,l0,y0

fjiksVZ izk0ih022 izLrqr dh xbZ gS] ftlls ;g izekf.kr fd;k gSA fd

vkjksih ls tks diM+s foospd us tIr fd;s Fks mu ij [kwu yxk Fkk

ftldk dksbZ Li"Vhdj.k vkjksih dh vksj ls ugha fn;k x;k gS fd

mlds }kjk tIr djk;s x;s diM+ks ij ekuo jDr D;ksa yxk Fkk] vkjksih ds

diM+ksa ij ekuo jDr dk ik;k tkuk ;g izekf.kr djrk gS fd vkjksih us

e`rd dh ekjihV dh] ftlls vkbZ pksaVksa ds dkj.k gh vkjksih ds diM+ksa

ij ekuo jDr ik;k x;k] rFkk vkjksih us lkl{; dk foyksiu djus ds

vk’k; ls 'ko dks tyk fn;kA**

16.The Trial Court has relied on the FSL report (Ex.P-22), but no

opportunity was given to the appellant for explanation regarding

existence of human blood and blood group. Therefore, as per Section

313(4) of Cr.P.C. and the settled principle of law, that evidence cannot

be used against the appellant.

17.Section 313(4) of Cr.P.C. provides that-

“(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.”

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18.In the case of Naval Kishore Singh vs. State of Bihar reported

in (2004) 7 SCC 502 Hon’ble Apex Court has held in para 5 that:-

“5. ……………… Under Section 313 CrPC the

accused should have been given opportunity to

explain any of the circumstances appearing in the

evidence against him. At least, the various items of

evidence, which had been produced by the

prosecution, should have been put to the accused in

the form of questions and he should have been given

opportunity to give his explanation. No such

opportunity was given to the accused in the instant

case. We deprecate the practice of putting the entire

evidence against the accused put together in a single

question and giving an opportunity to explain the

same, as the accused may not be in a position to give

a rational and intelligent explanation. The trial Judge

should have kept in mind the importance of giving an

opportunity to the accused to explain the adverse

circumstances in the evidence and the Section 313

examination shall not be carried out as an empty

formality. It is only after the entire evidence is

unfurled the accused would be in a position to

articulate his defence and to give explanation to the

circumstances appearing in evidence against him.

Such an opportunity being given to the accused is

part of a fair trial and if it is done in a slipshod

manner, it may result in imperfect appreciation of

evidence.”

It was also held that, if this defect in procedure under Section

313 Cr.P.C. had been pointed out, the High Court could have very well

remitted the case to the Sessions Court for proper examination.

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19.In the case of State of Punjab vs. Swaran Singh reported in

(2005) 6 SCC 101 Hon’ble Apex Court has held in para 10 that:-

“10. The questioning of the accused is done to

enable him to give an opportunity to explain any

circumstances which have come out in the evidence

against him. It may be noticed that the entire

evidence is recorded in his presence and he is given

full opportunity to cross-examine each and every

witness examined on the prosecution side. He is

given copies of all documents which are sought to

be relied on by the prosecution. Apart from all these,

as part of fair trial the accused is given opportunity

to give his explanation regarding the evidence

adduced by the prosecution. However, it is not

necessary that the entire prosecution evidence need

be put to him and answers elicited from the accused.

If there were circumstances in the evidence

which are adverse to the accused and his

explanation would help the court in evaluating

the evidence properly, the court should bring the

same to the notice of the accused to enable him to

give any explanation or answers for such adverse

circumstance in the evidence. Generally,

composite questions shall not be asked to the

accused bundling so many facts together. Questions

must be such that any reasonable person in the

position of the accused may be in a position to give

rational explanation to the questions as had been

asked. There shall not be failure of justice on

account of an unfair trial.”

20.In the case of Asraf Ali vs. State of Assam reported in (2008) 16

SCC 328 Hon’ble Apex Court has held in para 22 and 23 that:-

“22. The object of Section 313 of the Code is to

establish a direct dialogue between the court and

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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 v.

State (Delhi Admn.) [(1976) 2 SCC 819 : 1976 SCC

(Cri) 324 : AIR 1976 SC 2140] 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.

23. “16. Contextually we cannot bypass the decision

of a three-Judge Bench of this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra [(1973) 2

SCC 793 : 1973 SCC (Cri) 1033] as the Bench has

widened the sweep of the provision concerning

examination of the accused after closing prosecution

evidence. Learned Judges in that case were

considering the fallout of omission to put to the

accused a question on a vital circumstance

appearing against him in the prosecution evidence.

The three-Judge Bench made the following

observations therein : (SCC p. 806, para 16)

‘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

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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.’

***

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 :

‘21. … 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

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opportunity to say what he wanted to say in respect

of prosecution case against him. If it appears that

the examination of the accused person was defective

and thereby a prejudice has been caused to him, that

would no doubt be a serious infirmity.’

19. Thus it is well settled that the provision is

mainly intended to benefit the accused and as its

corollary to benefit the court in reaching the final

conclusion.

20. At the same time it should be borne in mind that

the provision is not intended to nail him to any

position, but to comply with the most salutary

principle of natural justice enshrined in the maxim

audi alteram partem. The word ‘may’ in clause (a)

of sub-section (1) in Section 313 of the Code

indicates, without any doubt, that even if the court

does not put any question under that clause the

accused cannot raise any grievance for it. But if the

court fails to put the needed question under clause

(b) of the sub-section it would result in a handicap

to the accused and he can legitimately claim that no

evidence, without affording him the opportunity to

explain, can be used against him. It is now well

settled that a circumstance about which the accused

was not asked to explain cannot be used against

him.”

21.In the case of Sukhjit Singh vs. State of Punjab reported in

(2014) 10 SCC 270 Hon’ble Apex Court has held in para 10, 11, 12,

and 13 that:-

“10. On a studied scrutiny of the questions put

under Section 313 CrPC in entirety, we find that no

incriminating material has been brought to the

notice of the accused while putting questions. Mr

Talwar has submitted that the requirement as

engrafted under Section 313 CrPC is not an empty

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formality. To buttress the aforesaid submission, he

has drawn inspiration from the authority in Ranvir

Yadav v. State of Bihar [(2009) 6 SCC 595 : (2009)

3 SCC (Cri) 92] . Relying upon the same, he would

contend that when the incriminating materials have

not been put to the accused under Section 313

CrPC it tantamounts to serious lapse on the part of

the trial court making the conviction vitiated in law.

11. In this context, we may profitably refer to a

four-Judge Bench decision in Tara Singh v. State

[1951 SCC 903 : AIR 1951 SC 441 : (1951) 52 Cri

LJ 1491] wherein, Bose, J. explaining the

significance of the faithful and fair compliance

with Section 342 of the Code as it stood then,

opined thus: (AIR pp. 445-46, para 30)

“30. I cannot stress too strongly the importance of

observing faithfully and fairly the provisions of

Section 342 of the Criminal Procedure Code. It is

not a proper compliance to read out a long string of

questions and answers made in the committal court

and ask whether the statement is correct. A question

of that kind is misleading. It may mean either that

the questioner wants to know whether the recording

is correct, or whether the answers given are true, or

whether there is some mistake or misunderstanding

despite the accurate recording. In the next place, it

is not sufficient compliance to string together a

long series of facts and ask the accused what he has

to say about them. He must be questioned

separately about each material circumstance

which is intended to be used against him. The

whole object of the section is to afford the

accused a fair and proper opportunity of

explaining circumstances which appear against

him. The questioning must therefore be fair and

must be couched in a form which an ignorant or

illiterate person will be able to appreciate and

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understand. Even when an accused person is not

illiterate, his mind is apt to be perturbed when

he is facing a charge of murder. He is therefore

in no fit position to understand the significance

of a complex question. Fairness therefore

requires that each material circumstance should

be put simply and separately in a way that an

illiterate mind, or one which is perturbed or

confused, can readily appreciate and

understand. I do not suggest that every error or

omission in this behalf would necessarily vitiate a

trial because I am of opinion that errors of this type

fall within the category of curable irregularities.

Therefore, the question in each case depends upon

the degree of the error and upon whether prejudice

has been occasioned or is likely to have been

occasioned. In my opinion, the disregard of the

provisions of Section 342 of the Criminal

Procedure Code, is so gross in this case that I feel

there is grave likelihood of prejudice.”

12. In Hate Singh Bhagat Singh v. State of Madhya

Bharat [1951 SCC 1060 : AIR 1953 SC 468 : 1953

Cri LJ 1933] , Bose, J. speaking for a three-Judge

Bench highlighting the importance of recording of

the statement of the accused under the Code

expressed thus: (AIR pp. 469-70, para 8)

“8. Now the statements of an accused person

recorded under Sections 208, 209 and 342,

Criminal Procedure Code are among the most

important matters to be considered at the trial. It

has to be remembered that in this country an

accused person is not allowed to enter the box and

speak on oath in his own defence. This may operate

for the protection of the accused in some cases but

experience elsewhere has shown that it can also be

a powerful and impressive weapon of defence in

the hands of an innocent man. The statements of

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the accused recorded by the Committing Magistrate

and the Sessions Judge are intended in India to take

the place of what in England and in America he

would be free to state in his own way in the witness

box.”

13. The aforesaid principle has been reiterated in

Ajay Singh v. State of Maharashtra [(2007) 12 SCC

341 : (2008) 1 SCC (Cri) 371] in following terms:

(SCC pp. 347-48, para 14)

“14. The word ‘generally’ in sub-section (1)(b)

does not limit the nature of the questioning to one

or more questions of a general nature relating to the

case, but it means that the question should relate to

the whole case generally and should also be limited

to any particular part or parts of it. The question

must be framed in such a way as to enable the

accused to know what he is to explain, what are the

circumstances which are against him and for which

an explanation is needed. The whole object of the

section is to afford the accused a fair and proper

opportunity of explaining circumstances which

appear against him and that the questions must be

fair and must be couched in a form which an

ignorant or illiterate person will be able to

appreciate and understand. A conviction based on

the accused's failure to explain what he was never

asked to explain is bad in law. The whole object of

enacting Section 313 of the Code was that the

attention of the accused should be drawn to the

specific points in the charge and in the evidence on

which the prosecution claims that the case is made

out against the accused so that he may be able to

give such explanation as he desires to give.”

22.In the case of Samsul Haque vs. State of Assam reported in

(2019) 18 SCC 161 Hon’ble Apex Court has held in para 22 and 23

that:-

19

“22. It is trite to say that, in view of the judgments

referred to by the learned Senior Counsel, aforesaid,

the incriminating material is to be put to the accused

so that the accused gets a fair chance to defend

himself. This is in recognition of the principles of

audi alteram partem. Apart from the judgments

referred to aforesaid by the learned Senior Counsel,

we may usefully refer to the judgment of this Court

in Asraf Ali v. State of Assam [Asraf Ali v. State of

Assam, (2008) 16 SCC 328 : (2010) 4 SCC (Cri)

278] . The relevant observations are in the following

paragraphs : (SCC p. 334, paras 21-22)

“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 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

prejudiced.

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 v.

State (Delhi Admn.) [S. Harnam Singh v. State

20

(Delhi Admn.), (1976) 2 SCC 819 : 1976 SCC (Cri)

324] 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 facets 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.”

23. While making the aforesaid observations, this

Court also referred to its earlier judgment of the

three-Judge Bench in Shivaji Sahabrao Bobade v.

State of Maharashtra [Shivaji Sahabrao Bobade v.

State of Maharashtra, (1973) 2 SCC 793 : 1973

SCC (Cri) 1033] , which considered the fallout of

the omission to put to the accused a question on a

vital circumstance appearing against him in the

prosecution evidence, and the requirement that the

accused's attention should be drawn to every

inculpatory material so as to enable him to explain

it. Ordinarily, in such a situation, such material as

not put to the accused must be eschewed. No doubt,

it is recognised, that where there is a perfunctory

examination under Section 313 CrPC, the matter is

capable of being remitted to the trial court, with the

direction to retry from the stage at which the

prosecution was closed [Shivaji Sahabrao Bobade v.

State of Maharashtra, (1973) 2 SCC 793 : 1973

SCC (Cri) 1033] .”

23.In the case of Maheshwar Tigga vs. State of Jharkhand

reported in (2020) 10 SCC 108 Hon’ble Apex Court (Three Judges

Bench) has held in para 8 that:-

“8. It stands well settled that circumstances not

put to an accused under Section 313 CrPC

cannot be used against him, and must be

excluded from consideration. In a criminal trial,

the importance of the questions put to an accused

are basic to the principles of natural justice as it

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provides him the opportunity not only to furnish his

defence, but also to explain the incriminating

circumstances against him. A probable defence

raised by an accused is sufficient to rebut the

accusation without the requirement of proof

beyond reasonable doubt.”

24.Since the Trial Court has not complied with the requirements of

Section 313 of Cr.P.C. in its spirit and has not afforded sufficient

opportunity for explanation to the appellant against the incriminating

evidence which was used to base his conviction, therefore, such

conviction and sentence passed by Trial Court cannot be affirmed by

this Court. Resultantly, conviction and sentence passed by the Trial

Court is hereby set aside.

25.Looking at the statement of Deepchand (P.W.-9), FSL report

(Ex.P-22), and other evidence on record, this Court is of the view that

the case should be remitted to the Sessions Court for proper

examination under Section 313 of Cr.P.C. after giving proper

opportunity to produce defence evidence to the appellant and pass

fresh judgment after hearing both the parties expeditiously, preferably

within 45 days from the receipt of the record.

26.Before parting with the matter, we are inclined to observe that

we have seen certain number of appeals wherein we found that the trial

Court has not taken sufficient pains while framing questions under

Section 313 of Cr.P.C. and did not confront the accused with

incriminating material with necessary accuracy and precision. Since,

exercise under Section 313 of Cr.P.C. is not an empty formality and is

part and parcel of principles of natural justice, we deem it proper to

22

direct the M.P. State Judicial Academy to take this aspect into account

and do the needful for all category of judges.

27.Accordingly, the appeal is disposed of.

(SUJOY PAUL) (AMAR NATH (KESHARWANI))

JUDGE JUDGE

DPS