New Delhi: Section 313 of the Code of Criminal Procedure, 1973 (CrPC) is considered one of the mandatory legal provisions available to an accused to prove his innocence. Under this, the trial court may at any stage, without previously warning the accused, put such questions to him as the court considers necessary.The accused shall not render himself available to punishment by refusing to answer such questions, or by giving false answers to them, the section states.
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. In 2009, the section was amended to insert a sub-clause to enable the trial court to take help from the prosecutor and defence counsel in preparing relevant questions which are to be put to the accused and the court may permit filing of a written statement by the accused as sufficient compliance of this section.
In a recent case, the Supreme Court summarised the principles with respect to the provision. The apex court described it as a mandatory duty on the part of the trial court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in evidence against him. The Supreme Court held that the accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him. The Supreme Court also held that the explanations that an accused may furnish cannot be considered in isolation, but have to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statements.
The statements of the accused in the course of examination under section 313 do not constitute evidence under section 3 of the Evidence Act, since they are not given on oath, yet the answers given are relevant for finding the truth and examining the veracity of the prosecution’s case.
The Supreme Court cautioned that any failure to consider the accused’s explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.
On April 21, the Supreme Court bench of Justices V. Ramasubramanian and Pankaj Mithal heard a case in which the appellant, Tribhuwan Pandey – who was convicted by the trial court for a murder which took place in 1992 and sentenced to life imprisonment – assailed his conviction mainly on the ground that the questioning under Section 313 was turned by the sessions court into an empty formality.
The bench noted that only three questions were put to the appellant herein. The questions and answers read as follows:
Question: Heard the deposition given by witnesses?
Answer: Yes
Question: Witnesses have stated that on 30.10.92 at 2 o’ clock in the day in Chailwa village Nandlal Kamkar was shot dead with a common intention?
Answer: No.
Question: What you want to say in defence?
Answer: No.
The counsel for the state contended that any defect in questioning under Section 313 of the Code, even assuming without admitting that there is a defect, is a curable defect and that the same will not inure to the benefit of the appellant.
The bench, however, observed: “But the fact remains that the way the Sessions Court converted the procedure under Section 313 of the Code into empty formality is a matter for argument. This is why we have granted leave.”
The bench, taking note of the fact that the appellant is now aged about 70 years, and that a period of more than 30 years have passed since the occurrence of the crime, with the convict spending about six years and 11 months in actual custody, directed his release on bail subject to such terms and conditions as may be imposed by the trial court.
Curiously enough, the Patna high court, which confirmed the appellant’s conviction last year, did not consider his grievance that the sessions court reduced the questioning under Section 313 CrPC into an empty formality. It is not clear from the high court judgment whether the counsel for the appellants raised the issue during the hearing.
Before the Supreme Court, the appellant was represented by senior counsel Anjana Prakash.
Background
The appellant was accused of cutting a sugarcane plant in the field of the deceased, which led to enmity between them. The evidence of all prosecution witnesses on the point of alleged occurrence of shooting by the appellant, resulting in the death of the deceased, was found to be consistent and trustworthy both by the trial court and the high court, which dismissed the appeal from the appellant and his co-accused in terms of a common judgment.