2008 Supreme(SC) 1084

2008(5) Supreme 270
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and P. Sathasivam, JJ.
Asraf Ali — Appellant
versus
State of Assam — Respondenty
Criminal Appeal No. 174 of 2001
Decided on : 17-07-08

Important Point
Recording of a statement of the accused under Section 313 of Code of Criminal Procedure, 1973 is not a purposeless exercise as it establishes a direct dialogue between Court and accused .Each material circumstance appearing in evidence against 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 accused was prejudiced.

Headnote:Code of Criminal Procedure, 1973 – Section 313 – Prosecution of accused appellant for causing death of deceased by assaulting him with a piece of wood on his head – Conviction of appellant under Section 304 Part I of IPC by Trial Court – Appeal thereagainst on plea that questions put to accused in examination under Section 313 of Code did not focus on evidence on record and accused was therefore prejudiced because no definite accusations or statement of any witness was brought to his notice – Even though High Court held that circumstances relied upon by prosecution were not specifically brought to notice of the accused and that trial Court faltered in its duty in Examination-However observing that no material prejudice was caused to accused appeal was partly allowed by High Court altering conviction to one u/s 304 Part II of IPC – Appeal – Held no witness had stated that on date of occurrence accused had caused severe injury to deceased by assaulting him on head from behind – The circumstances which were relied upon by trial Court to find accused guilty were not specifically brought to notice of accused – Therefore, in essence, his examination under Section 313 of the Code was rendered an empty formality – On that count alone, impugned judgment of High Court held unsustainable and liable to be set aside – Conviction of appellant could not be sustained – Appeal allowed. (Paras 20, 21)

       Code of Criminal Procedure, 1973 – Section 313 – Scope and ambit of – Section 313 of the Code casts a duty on Court to put in an enquiry or trial questions to accused for 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 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 accused was prejudiced – 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 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 – Non- indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case – Recording of a statement of the accused under Section 313 is not a purposeless exercise. (Para 13)

       Code of Criminal Procedure, 1973 – Section 313 – Section 313 is mainly intended to benefit accused and as its corollary to benefit court in reaching final conclusion – At the same time it should be borne in mind that said provision is not intended to nail him to any position, but to comply with most salutary principle of natural justice enshrined in the maxim audi alteram partem – It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. (Paras 16, 17)

       Facts of the Case :

       1.Accused appellant was convicted herein in the instant case for causing death of deceased by assaulting him with a piece of wood on his head . Appeal thereagainst was filed on plea that questions put to accused in examination under Section 313 of Code did not focus on evidence on record and accused was therefore prejudiced because no definite accusations or statement of any witness was brought to his notice. Even though High Court held that circumstances relied upon by prosecution were not specifically brought to notice of the accused and that trial Court faltered in its duty in Examination. However observing that no material prejudice was caused to accused appeal was partly allowed by High Court altering conviction to one u\s 304 Part II of IPC.

       2.Present appeal has been filed against said order of High Court.

       Findings of the Court :

       No witness had stated that on date of occurrence accused had caused severe injury to deceased by assaulting him on head from behind. The circumstances which were relied upon by trial Court to find accused guilty were not specifically brought to notice of accused. Therefore, in essence, his examination under Section 313 of the Code was rendered an empty formality. On that count alone, impugned judgment of High Court was held unsustainable and liable to be set aside.Conviction of appellant could not be sustained. Appeal was allowed.

       Result : Appeal allowed.