Code of Criminal Procedure, 1973: s. 313 – Power to examine the accused – Object and scope of – Held: s. 313 confers a valuable right upon an accused to establish his innocence – Purpose of s.
313 is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the course of trial – Non-fulfilment of the true spirit of s. 313 may ultimately cause grave prejudice to the accused and the court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion – Such an omission does not ipso facto vitiate the trial, unless the accused fails to prove that grave prejudice has been caused to him – On facts, prosecution case that accused fired a gunshot at the complainant, who escaped the injury and the accused fled the spot – Accused convicted and sentenced u/s.307 IPC and ss. 25 and 27 of the Arms Act, 1959 by the courts below – Courts below failed to scrutinize the defence version put forward by the appellant-accused in his statement u/s. 313– Furthermore, the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution – Where an accused sets up a defence or offers an explanation, he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities – It is the solemn duty of the courts below to consider the defence of the accused, with caution and must be scrutinised by application of mind by the judge – However, the courts below dealt with the evidence of the accused in a casual manner – Furthermore, in absence of independent evidence corroborating the statements made by complainant, serious doubts regarding the recovery of the alleged motorcycle and the country made pistol, no connection proved between the alleged recovered items and the alleged incident, and the plausible version put forward by the accused-appellant in his s. 313 statement not been satisfactorily responded to by the prosecution, the case against the accused cannot be sustained – Prosecution case based on mere conjectures and surmises – Evidence brought on record by the prosecution insufficient to prove the case beyond reasonable doubt – Thus, the order passed by the courts below set aside – Penal Code, 1860 – s. 307 – Arms Act, 1959 – ss. 25, 27.
Allowing the appeal, the Court
HELD: 1.1 From the evidence on record, it is clear that, apart from the complainant and his mother, the other independent witnesses namely PW1, PW10 and PW11 have denied witnessing the incident. Even, the Sub-Inspector PW9, in his cross examination, stated that the said witnesses during their police statements under Section 161 Cr.P.C, had indicated that they had not seen the accused-appellant firing the shot. Under the above circumstances, the only evidence available to prove the presence of the accused at the scene, apart from the testimony of the complainant himself, is that of PW3, his mother. Although, it was submitted that the testimony of the said witness should not be taken into consideration as she is an “interested” witness, it is an established principle of law that a close relative cannot automatically be characterized as an “interested” witness. However, it is trite that even related witness statements need to be scrutinized more carefully. [Para 9, 10][205-D-G]
1.2 The complainant clearly stated that his mother came to the spot after the incident. On the other hand, in the chief examination, his mother stated that she followed the complainant when he went outside and therefore, she witnessed the incident. In her cross-examination, she stated that she came outside when she heard the gunshot. However, she saw the incident from the verandah. Contradictions aside, it must be noted that the incident took place at around 10:30 pm in the night. It is no-where mentioned that the accused and PW3 were familiar to the extent that she could recognize him in a fleeting moment while he was speeding away on his bike. She also failed to provide any discernable features of the accused-appellant. In fact, she specifically stated that she was not acquainted with the accused persons. It seems highly improbable that the mother of the complainant, PW3 instantly recognized the appellant-accused at night. No effort has been made to conduct an identification test, to associate the accused-appellant with the alleged incident. After closely scrutinizing the statement of PW3, mother of the complainant, does not inspire confidence. [Para 12, 13][207-BF]
1.3 The High Court and the trial Court have laid great emphasis on the recovery of a motorcycle and a country-made pistol from the possession of the accused-appellant. [Para 14][207F]
1.4 The sub-Inspector stated in his evidence that the alleged motorcycle and the country made pistol were seized from the complainant’s house based on the disclosure statement of the accused-appellant. However, the witnesses to the seizure, PW5 and PW8 have given varying statements regarding the same. In fact, PW5 clearly stated that there was no recovery of bike, and he was, thus, declared hostile by the prosecution. Moreover, although PW8 stated that no other thing other than the pistol was seized, he contradicts himself by stating that indeed a black coloured splendor motorcycle was seized. The said contradiction in the statement of PW8 cannot be stated to be minor. The same, thus, does not inspire confidence. [Para 16][208-F-H]
1.5 There has been no recovery of any pellet, empty cartridge, or any remains of the gunpowder from the spot. In the absence of a ballistic report, there is no clear connection between the seized weapon and the alleged incident. Moreover, even the complainant had given a vague description of the motorcycle. Neither the license number nor the colour or any other distinguishing features have been indicated by the complainant. Even here, there is no linking factor between the seized vehicle and the alleged incident. [Para 17][209-A-B]
1.6 The accused while being examined had stated himself that he had gone to his village on the date of the incident. To support his case, he produced two defence witnesses who have corroborated his presence in the village. Furthermore, the accused claimed to be falsely implicated in the case owing to political rivalry. The alternate version put forth by the appellantaccused could not be ignored. Section 313 CrPC confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21 of the Constitution. [Para 19, 22][209-E-F; 211-E-F]
1.7 The courts below failed to scrutinize the defence version put forward by the appellant-accused in his Section 313 statement. The object of Section 313 is to establish a direct dialogue between the court and the accused. [Para 25][212-G-H]
1.8 The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the course of trial. A reasonable opportunity entails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation. [Para 26][213-A-B]
1.9 If all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not able to put forth a rational and intelligible explanation. Such, exercises which defeats fair opportunity are nothing but empty formality. Non-fulfilment of the true spirit of Section 313 may ultimately cause grave prejudice to the accused and the Court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion. Such an omission does not ipso facto vitiate the trial, unless the accused fails to prove that grave prejudice has been caused to him. Although the counsel on behalf the accused has not proved any serious prejudice caused to him due to failure of the Court in framing individual circumstances; however, considering the long pendency of the matter and the right of the accused to have a fair and expeditious trial, the matter is decided on its own merit. [Para 27, 28][213-B-E]
1.10 It is an established principle of criminal law that the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution. Where an accused sets up a defence or offers an explanation, it is well-settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. Moreover, it is the solemn duty of the courts below to consider the defence of the accused. The same must be considered with caution and must be scrutinised by application of mind by the judge. The Court may accept or reject the same, however it cannot be done cursorily. The reasoning and the application of mind must be reflected in writing. However, it is clear that the courts below have failed to undertake this solemn duty. Rather, the evidence of the accused has been dealt by the Court in a casual manner. [Para 29, 30][213E-F, G-H]
1.11 When there is absence of independent evidence corroborating the statements made by complainant, serious doubts regarding the recovery of the alleged motorcycle and the country made pistol, no connection proved between the alleged recovered items and the alleged incident, and the plausible version put forward by the accused-appellant in his Section 313 statement has not been satisfactorily responded to by the prosecution, the case against the accused-appellant cannot be sustained. [Para 31][214-A-B]
1.12 It is the duty of the Court to extract the truth from the mass of evidence. The case of the prosecution is based on mere conjectures and surmises. The High Court and the trial court failed to consider the above-mentioned circumstances while rendering the judgment convicting the accused. The evidence brought on record by the prosecution is insufficient to prove the case against the appellant beyond reasonable doubt. [Para 32][214-C-D]
Bhaskarrao v. State of Maharashtra (2018) 6 SCC 591 : [2018] 4 SCR 751; State of Rajasthan v. Madan (2019) 13 SCC 653 : 2018 (14) SCALE 748; Reena Hazarika v. State of Assam, (2019) 13 SCC 289 : [2018]
13 SCR 1108; Satbir Singh v. State of Haryana (2021)
6 SCC 1 : [2021] 5 JT 532; Asraf Ali v. State of Assam (2008) 16 SCC 328 : [2008] 10 SCR 1115; M. Abbas v. State of Kerala, (2001) 10 SCC 103 : 2001 (4) JT 92; Parminder Kaur v. State of Punjab (2020) 8 SCC
811 : [2020] 6 SCR 508 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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