EXAMINATION OF ACCUSED BY A JUDGE: SIGNIFICANCE OF SECTION 313 OF CRPC

 

Criminal trial begins after framing of charge and framing of notice as the case may be. In the complaint u/s 138 of Negotiable Instruments Act (In short NI Act”) after framing of notice u/s 251 Cr.PC (Correspond to Section 351 of BNSS) the process of trial starts from re-examination of the complainant. The complainant shall be examined and cross- examined, post summoning. The section 139 of Negotiable Instruments Act contains the provision of “presumption” in favour of the accused, in case cheque is shown to have been issued in his name, However, once the presumption is rebutted, the onus again shifts on the complainant to discharge the further onus. The shifting of the onus and its adequate discharge has been the quintessential elements of a trial u/s 138 of Negotiable Instruments Act. What is of further significance is the fact that section 313 Cr.PC is set in motion, once, complainant evidence stands closed and though, its significance is vastly undermined, but its significance in criminal trial cannot be negated by any stretch of imagination.

This is the only provision during criminal trial that there is a dialogue between a judge and accused and questions are framed by the judge in order to elicit answer from the accused. Conventionally, it is seen that the accused merely answers every vital question in negative, since, the mistaken belief is that in criminal trial an accused is not supposed to admit guilt and in fact he cannot be compelled to do so, but it does not mean that the accused should throw away the opportunity in ritualistic negative answers. A judge puts question to the accused on the basis of allegation on record and if the accused is innocent and have been framed, the opportunity is available to the accused to reflect on the record including the element of mala fide and framing in a false case. The judges as human being cannot be indifferent to reasonable assumptions that could be afforded to a judge during interaction with an accused. Judicial mind, upon pondering over the interaction could come to a plausible inference as regards the culpability of accused or lack of his involvement in crime. Thus, what is quite ignored in fact should be given due weightage and section 313 Cr.PC and statement of accused under the said provision cannot be seen as an empty formality. Moreover, there are instances when a judge records order of conviction or acquittal after taking note of the interaction of the accused u/s 313, since, the answer to the query shall enable a judge to come to a reasonable inference. Though, Section 313 Cr.PC interaction in itself may not be substantive ground for recording order of conviction or acquittal, but its significance3 in a criminal trial cannot be relegated, more so, it is an essential outlet towards audi alteram partem i.e no one can be condemned unheard.

Before dissecting the case law, the provision of Section 313 Cr.PC may be reproduced for ready reference:

313. Power to examine the accused-

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain the 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 summons case, where the Court has dispensed with the personal attendance of 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 answer 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 the help of prosecutor or 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.

It is important to note that in a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C. is to meet the requirement of the principles of natural justice i.e. audi alterum partem. Thus, incriminating evidence against the accused is put to him in his examination u/s 313 of Cr.PC so that accused has the opportunity to furnish some explanation as regards the incriminating circumstances surrounding him. It is more significant in a case based on circumstantial evidence and to connect the chain and to find out that chain is not complete. It is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him.

 

Case laws

   (SUPREME COURT)

In order to unravel the principle as contained in Section 313 and its effect, the evolution of law through successive judgments of Supreme Court could be referred to:  

(1)    In State of Maharashtra Vs Sukhdev Singh  AIR 1992 SC 2100, the Supreme Court has observed as under:

“…if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence his examination under Section 313 of the Code would be wholly unnecessary and improper. In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.”

(2)    In Mohan Singh Vs Prem Singh & Anr, AIR 2002 SC 3582, the Supreme Court has held:

“The statement of the accused under Section 311 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. If the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction.”

(3)    In Dehal Singh Vs State of H.P AIR 2010 SC 3594, the Supreme Court has observed in the context of significance of the statement of accused and whether for want of cross examination that could be treated as evidence or not? It is held as under:

“Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of Indian Evidence Act. The appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter- alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section313 of the Code of Criminal Procedure as evidence as the accused cannot be cross- examined with reference to those statements. However, when an accused appears as a witness in defence to disprove the charge, his version can be tested by his cross-examination.”

 

(4)    In State of MP Vs Ramesh (2011) 4 SCC 786, the Supreme Court has held as under:

“The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined. his statement so recorded under Section 313 CrPC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act. 1872. Section 313 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required.”

(5)   In Rafiq Ahmed @Rafi Vs State of UP, AIR 2011 SC 3114, the Supreme Court observed as under:

“It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events….”

(6)    In Dharnidhar Vs State of UP & Ors (2010) 7 SCC 759, the Supreme Court held:

“The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC.”

(7)    In Ramnaresh & Ors Avs State of Chhatisgarh, AIR 2012 SC 1357, the Supreme Court held as under:

“It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.”

(8)    In Munish Mubar Vs State of Haryana AIR 2013 SC 912, the Supreme Court has held that duty is cast on the accused to furnish an explanation in his statement under Section 313 Cr.P.C upon being subjected to explain any incriminating material against him….”

 

(9)    In Raj Kumar Singh @ Raju @ Batya vs State of Rajasthan AIR 2013 SUPREME COURT 3150 it is noted by the Supreme Court that:

36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution’s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C”.

Thus, an adverse inference can be taken against the accused only if the incriminating material stands completely established and the accused when called upon to furnish any explanation for the same, nothing is forthcoming. Though, it bears no emphasis that the accused has a right to remain silent as he cannot be forced to become witness against himself.

In a criminal trial, there are cases where the conviction of the accused is sought on the basis of circumstantial evidence and still further, there could be contradictions/ improvements/embellishments in the deposition of witnesses and hence the link may not be connected. It is no gainsaying that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in entirety in as much as irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Even “exaggerations per se” do not render the evidence brittle, though that could be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.” The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty investigation. It is the duty cast on Courts to separate truth from untruth, embellishments and improvements and whether the residuary evidence is sufficient to convict the accused. In the perspective as above, statement of accused u/s 313 may provide a vital clog to the wheel to complete the circle of innocence or guilt, as the case may be.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com