Allahabad High Court
Raja Gaur And 3 Others vs State Of Up on 9 April, 2025
Bench: Saumitra Dayal Singh, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:52067-DB Court No. - 45 Case :- CRIMINAL APPEAL No. - 279 of 2024 Appellant :- Raja Gaur And 3 Others Respondent :- State of U.P. Counsel for Appellant :- G.A.,Mohd Imran Khan Counsel for Respondent :- Dashrath Prasad,Ramesh Singh Kushwaha Hon'ble Saumitra Dayal Singh,J.
Hon’ble Dr. Gautam Chowdhary,J.
1. Heard Shri Mohd Imran Khan, learned counsel for the appellant and Shri L.D. Rajbhar, learned A.G.A. for the State.
2. Present appeal arises from the judgement and order dated 15.12.2023 passed by Shri Sanjay Kumar-VII, learned Sessions Judge Ghazipur, in S.T. No. 36 of 2021 (State of U.P. v. Raja Gaur and 3 others), whereby the learned court below has convicted the appellants- Raja Gaur, Rajkumar Gaur, Bachche Lal and Sachche Lal for the offence under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced them for life imprisonment.
3. Present appeal arises from the prosecution story narrated in the Written Report dated 21.10.2019 submitted by Pyare Lal (P.W-1 at the trial) i.e. brother of the deceased, Rama Kanaujia. In that, it was disclosed that the appellant- Raja Gaur had eloped with ‘M’, the daughter of the deceased. That occurrence had been reported to the appellants by the deceased. Consequently, appellant- Raja Gaur had been arrested. Since then, the appellant- Raja Gaur was forcing on the deceased and his family members, to reach a settlement. On that proposal being opposed by the informant side, they were further threatened with dire consequences.
4. In the above background, it was disclosed that in the intervening night of 17/18.10.2019, the first informant heard noise coming from outside. On hearing such noises, he along with his wife and the wife of the deceased, Suman Devi (P.W.-2 at the trial) reached the place of occurrence where they saw the appellants- Raja Gaur, Rajkumar Gaur, Bachche Lal and Sachche Lal fleeing from the place of occurrence. He claimed to have seen the appellants in torch light. He also saw that the deceased had jumped into a village pond to save his life to extinguish the fire caused to him. In such circumstance, the deceased disclosed to the first informant (P.W.-1) that the appellants had poured kerosene oil on him and set him ablaze. The first informant also disclosed that the occurrence had been seen by many other villagers who had gathered at the place of occurrence. Thereafter, the Written Report disclosed that the first informant admitted the deceased at Kapil Chaura Hospital. Thereafter on 21.10.2019, the appellant- Raja Gaur visited the house of the first informant and again threatened him with dire consequences if no settlement is reached between the parties, arising from the earlier occurrence of ‘M’ having eloped, with the appellant- Raja Gaur. The written report is Ex.Ka-1 at the trial.
5. On that Written Report, F.I.R. was registered in Case Crime No. 0227 of 2019 at P.S. Nandganj, District Ghazipur on 21.10.2019 at about 3:05 p.m. The F.I.R. is Ex.Ka-2 at the trial. In the meanwhile i.e. before the F.I.R. came to be registered on 18.10.2019, a Dying Declaration of the deceased was recorded by Shri Sanjay Kumar Rai, the then SDM (Judicial) Shravasti (P.W.-14 at the trial). In that, the deceased clearly disclosed that four persons had assaulted him by first pouring inflammable material on his body and thereafter setting him ablaze. However, he categorically stated, he could not recognize any assailant. He further stated, he suspected that the occurrence had been caused by the present appellants. The Dying Declaration is Ex.Ka-13 at the trial. The deceased died on 21.10.2019. The autopsy report was prepared by Dr. Rajnath Ram (P.W.-8 at the trial). The autopsy report is Ex.Ka-7 at the trial. In that, the following ante-morten injuries were noted :
“Anti-mortem Injury :- Dermo-epidermal infected burn all over body except top of head, back of head, half face x both sole x Pus (illegible) present.
6. As to the cause of death, the same was recorded as below :
“Septicemia as a result of infected deep burn”
7. Upon the death of the deceased, ‘Panchayatnama’ was prepared on 22.10.2019. It is Ex.Ka-6 at the trial.
8. Upon completion of the investigation, chargesheet was submitted by the I.O. Sanjay Kumar Mishra (P.W.-10 at the trial). Upon the case being committed for trial by Court of Sessions, following charges were framed against the appellants by the learned court below, on 25.11.2021 :
“That you, on 17/18-10-2019 at anytime in midnight, in Village Sisauda within the circle of Police Station Nandganj, District Ghazipur, with common intention did commit murder by knowingly causing the death of Rama Kannojiya, and that you hereby committed an offence punishable under Section 302 read with Section 34 of Indian Penal Code and within the cognizance of this Court”.
9. At the trial, besides the above documentary evidence, 14 witnesses were examined by the prosecution. The first informant Pyare Lal was examined as P.W.-1. During his examination-in-chief, he disclosed that the deceased was sleeping at the premises described as the old house of the parties, whereas the first informant, his wife and the wife of the deceased were sleeping in the premises described as the new house. At about 01:00 a.m. he heard some noise. On hearing such noises, he along with his wife and Suman Devi, wife of the deceased (P.W.-2 at the trial) came outside and ran towards the house where the deceased was sleeping. On way, he saw the appellants- Raja Gaur, Rajkumar Gaur, Bachche Lal and Sachche Lal (four appellants here) in torch light while these appellants were fleeing towards their house. On reaching the place of occurrence, they found that the deceased was lying in a village pond, in an injured state. Thereafter, he narrated the facts with respect to the treatment offered to the deceased and his death caused on 21.10.2019. He tried to explain the delay in lodging the F.I.R. for reason of being pre-occupied in the treatment of the deceased. He proved the Written Report dated 21.10.2019. He further asserted, two days prior to the occurrence, the appellant- Raja Gaur had threatened the deceased to settle their earlier dispute between the parties or face dire consequences.
10. During his examination-in-chief, he specifically stated that the occurrence took place at the ‘old house’ whereas he along with the wife of the deceased and he himself were present in the ‘new house’, situated about 70-75 metres from that place of occurrence. He also disclosed the structures and agricultural fields lying between and near the place of occurrence and the place where he was present when such occurrence took place. As to the torch with which he identified the assailants, he disclosed that the same was lost as it fell in a ditch.
11. Thereafter, Suman Devi, wife of the deceased was examined as P.W.-2. She made statements similar to those of P.W.-1 with respect to her presence at the ‘new house’ along with the first informant and his wife. She further stated that the deceased had gone to sleep at the ‘old house’, around midnight. She heard some noise. Thereupon she went outside along with others and saw the appellants fleeing from the place of occurrence, in torch light. She further stated that upon reaching there she found the deceased lying in an injured state. She was told by him that the present appellants had caused the occurrence.
12. During her further cross-examination, she specifically stated that power supply had suffered outrage on the date and time of occurrence and in any case there was no electricity connection installed at the ‘old house’. As to the torch, she stated that it was brought by the village pradhan. However, it was lost in the village pond. Thereafter, she described the further facts with respect to the hospitalization of the deceased and the treatment offered to him and his death. During her further cross-examination on 17.02.2023, she admitted that she had not seen the occurrence being caused.
13. Thereafter ‘M’ was examined as P.W.-3. She was not present at the date and time of occurrence. She claimed to have learnt of the occurrence after it had been caused. She admitted that the deceased had earlier lodged F.I.R. in Case Crime No. 150 of 2019, under Sections 363, 366 I.P.C. read with Section 7/8 of POCSO Act, against the appellant- Raja Gaur on the allegation that the appellant- Raja Gaur had enticed and thus kidnapped ‘M’. She feigned ignorance about her statement. Thus she stated as below :
“u/s 164 Cr.P.C. का बयान जो न्यायालय में मेरा हुआ उसमें जो यह लिखा है कि ” हम दोनो घर से निकल कर काली मां के मन्दिर के पास पहुँचे थे कि पीछे से मम्मी, पापा व मेरा भाई आ गए वही से पुलिस को फोन किया तब पुलिस आई और हम दोनो को अपने साथ ले गई। उसके बाद मेरे पिताजी ने मुकदमा लिखा दिया।”
14. Later, she also tried to claim that her statement was falsely/wrongly recorded. She tried to wriggle out of her previous statement recorded under Section 164 Cr.P.C. wherein she claimed to have been disclosed that the deceased had discontinued her education. She also denied to have made a statement under Section 161 Cr.P.C. that she had formed a love relationship with the appellant. She also tried to disown her statement recorded under Section 161 Cr.P.C. wherein she is described to have disclosed to the police authorities that she had quarreled with the deceased in the morning of the day when the occurrence took place and that she learnt of the occurrence the next morning. Yet, she admitted (earlier), that her statement was recorded under Section 161 Cr.P.C.
15. Thereafter, Arun Kumar Kharwar, the Gram Pradhan was examined as P.W.-4. He was not present at the time of the occurrence. He proved the ‘Panchayatnama’.
16. Next, Shiv Sharan Sharma, the Head Moharrir was examined as P.W.-5. He proved the submission of the Written Report and the registration of the F.I.R. Next, Garib Kannaujia was examined as P.W.-6. He proved the ‘Panchayatnama’. Next, Shri Kailash Kannaujia was examined as P.W.-7. He also proved the ‘Panchayatnama’. Next, Dr. Rajnath Sharma was examined as P.W.-8. He proved the autopsy report, the ante-mortem injuries as also the cause of death. Next, Sadanand Kannaujia was examined as P.W.-9. He proved the ‘Panchayatnama’. Though he is not a witness of fact, during his examination-in-chief, he stated, he learnt that the appellant- Raja Gaur had caused the occurrence. During his cross-examination, he further stated, when he reached the place of occurrence at about 8-9 a.m., next morning, people who had gathered were discussing how the occurrence was caused. Thereafter, Sr. Sub-Inspector Sanjay Kumar Mishra was examined as P.W.-10. He proved the initial investigation. Next, Constable Jatin Kumar was examined as P.W.-11. He also proved the ‘Panchayatnama’ and other documents. Next, Sub-Inspector Kapurchandra Sharma was examined as P.W.-12. He proved the fact with respect to lodging of the F.I.R. and preparation of ‘Panchayatnama’. Next, Inspector Vineet Rai was examined as P.W.-13. He proved the site plan and certain part of the investigation. Last, Sanjay Kumar Rai, SDM (Additional) Shravasti was examined as P.W.-14. He proved the fact with respect to recording of the Dying Declaration of the deceased on 18.10.2019.
17. Upon conclusion of prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.P.C. We have perused the statements. No adverse circumstance was confronted to them that the prosecution witnesses had seen and identified them in torch light while they were fleeing from the place of occurrence. By way of their own explanation, all the accused appellants stated that the wife of the deceased Suman Devi and ‘M’ were agreeable to the marriage between the appellant- Raja Gaur and ‘M’. Only the deceased and the first informant were opposed. In such circumstances, the deceased committed suicide. However, no defence evidence was led.
18. Submission of learned counsel for the appellants is, there is no direct evidence against the appellants. The circumstantial evidence is weak and the chain of evidence is broken, in vital parts. In the first place, the deceased clearly stated (in his dying declaration) that he had not seen any of the appellants. Thus, he had exonerated the appellants inasmuch as it is the own prosecution case that the parties were known from before. They had bad relations. The deceased had first lodged the F.I.R. in Case Crime No. 150 of 2019, under Sections 363, 366 IPC read with Section 7/8 of POCSO Act, yet he did not identify and name the appellants as assailants. He only expressed a suspicion that the appellants may have caused such occurrence. Yet, he did not state that the assailants had masked their faces.
19. Second, the prosecution witnesses P.W.-1 and P.W.-2 had not seen the appellants fleeing from the place of occurrence, either with reference to source of light or with reference to time. Those witnesses were woken up upon alarm call caused upon the occurrence taking place at about 70-75 paces away at and the place. They could not have seen the occurrence or the appellants as they approached that place, after some time.
20. Third, it has been submitted, the F.I.R. itself was wholly belated. It was submitted as an afterthought that too by the first informant who is the brother of the deceased but not by the wife or the daughter of the deceased. The occurrence took place at midnight in the intervening night of 17/18.10.2019. The deceased died on 21.10.2019. Till then, no F.I.R. was lodged. As to motive, it is a double-edged sword. The first informant and the deceased and their family members were aggrieved by the fact that ‘M’ had formed love relationship with the appellant- Raja Gaur. Thus, animosity had developed between the parties for reason of an earlier occurrence wherein ‘M’ had eloped with the appellant- Raja Gaur. Therefore, the informant found an excuse to falsely implicate the present appellants, to settle that dispute.
21. Last, it has been submitted, the only adverse circumstance being relied is the identification of the appellants at point ‘D’ marked on the site plan. Besides the inconsistencies in the statements as to the exact place where the two eye-witnesses (P.W.-1 and P.W.-2) may have seen the assailants flee from the place of occurrence, that adverse circumstance allegedly proven, was not confronted to the appellants. Thus, prejudice had been caused to the appellants inasmuch as the learned court below has erroneously concluded that the appellants had been identified by the eye-witnesses namely P.W.-1 and P.W.-2.
22. On the other hand, learned A.G.A. would submit, minor inconsistencies and minor errors apart, on substantive basis it has been duly proven by the prosecution witnesses that the appellants had caused the occurrence. In that, the deceased described that four assailants had caused the occurrence. Though he could not identify his assailants, P.W.-1 and P.W.-2 clearly proved that the identity of those four assailants to be that of the present appellants. Motive was also clearly proven-of grievance carried by the appellant- Raja Gaur and his family members for reason of earlier first information report lodged against by the deceased, against Raja Gaur.
23. Having heard learned counsel for the parties and having perused the record, first, it is an admitted case between the parties that there is no direct evidence to establish that the occurrence had been caused by the present appellants. Second, most remarkably, it has to be acknowledged that the deceased knew the appellants from before. He has taken their names in the dying declaration as the persons who may have caused the occurrence. However, as to the identity of the assailants, he maintained, at the same time-he could not identify those assailants. Thus, he stated “mai unhein pahchan nahi paya” i.e. “I could not identify them”.
24. Here, it may also be noted, no recovery whatsoever was made from the appellants or from the place of occurrence to link their presence at the time and place of occurrence. Yet, the deceased only made a guess that the appellants may have caused the occurrence. He used the words “mera anuman hai” i.e. “it is my guess”.
25. In such facts, it is noteworthy, that no F.I.R. came to be lodged for 3 days after the occurrence. Only after the death of the deceased, the first informant lodged the report wherein he claims that he (P.W.-1) and Suman Devi (P.W.-2) as also many other villagers saw the appellants flee from the place of occurrence. The delay was sought to be explained for reason of P.W.-1 being pre-occupied in the treatment of the deceased. Since he was not examined on that issue, we may accept the delay to have been explained.
26. It is also noteworthy that despite specific statement made by the P.W.-1 and P.W.-2 at the trial that many other villagers had gathered at the spot, not one was examined by the prosecution. In such circumstances, the only evidence brought by the prosecution is that the appellants had been seen fleeing from the place of occurrence. That ocular evidence is of Pyare Lal (P.W.-1) and Suman Devi (P.W.-2) only-both, closely related to the deceased. Both claim to have identified the appellants, in torch light. Yet, it is important to note here itself that according to P.W.-1 and P.W.-2, the occurrence took place during midnight of 17/18.10.2019. At that time, both witnesses along with their other family members were sleeping inside the dwelling house described as “new house” whereas the deceased was sleeping at the dwelling house described as “old house”, separated from the new house at about 70-75 paces. On the own description given by P.W.-2, there was a closed gate in the “new house”. In such circumstance, both witnesses of fact described that they became aware of the occurrence upon commotion being caused by the occurrence. They heard noises at which they woke up and opened the gate of the “new house” and thereafter ran towards the place of occurrence. In that process, at some place between the “new house” and the “old house”, they saw the appellants and identified all four of them, in torch light. By the very nature of that description given, it has to be accepted that upon the occurrence being caused, the two eye-witnesses were not the persons who first responded. They responded to the commotion caused by others, who had first responded to the occurrence. Those other persons must be villagers. However, none was produced or examined, at the trial. They also stated that on reaching the place of occurrence, they found the deceased lying in a village pond, near the “old house”. They never attempted to establish that the deceased was found inside the “old house” when they reached that place.
27. In view of that description of that occurrence given by the two eye-witnesses relied by the prosecution, it has to be acknowledged that there was time gap in the occurrence being caused; cries for help that must have been given out by the deceased, then injured; time taken by the other villagers who would have first responded upon hearing such cries for help; commotion that thereafter arose (at the instance of others), on the discovery of the occurrence that had been caused involving the occurrence wherein the deceased was set ablaze, at the “old house” whereafter he ran upto and jumped into the village pond to save himself. In that time, clearly after the occurrence had been caused, P.W.-1 and P.W.-2 were woken up by the commotion caused after other villagers had reached the place of occurrence on gaining knowledge of the occurrence. Thus, they are described to have reacted upon hearing the noises obviously created by other villagers. Then, they woke up and came out of the “new house” whereafter they may have run up to the place of occurrence, the distance between the two houses between 70-75 paces. It is improbable that the assailants who had secretly caused the occurrence would have waited for all the villagers to gather; the commotion to arise and theareafter flee from the place of occurrence as may have allowed P.W.-1 and P.W.-2 an opportunity to spot them away from the place of occurrence, that too in torch light, as other source of light was fairly denied by the prosecution witnesses themselves. Therefore, in the first place, we note that it is doubtful if the Pyare Lal (P.W.-1) and Suman Devi (P.W.-2) had the opportunity to spot and identify the assailants as described by the prosecution. Neither with respect to time duration nor with respect to source of light that version of the prosecution inspires confidence with the Court, in face of the doubts noted above.
28. Then, the essence of truth is found lacking in the prosecution narration inasmuch as the deceased clearly stated that he could not identify the assailants. Once it formed the basis of the prosecution story that the parties were known from before, in the context of bad relations existing between them, it is wholly unacceptable that the deceased failed to identify the appellants as the assailants. Merely because he made a guess that the occurrence must have been caused by the appellants, may not be accepted as evidence that the appellants had caused such occurrence.
29. In that regard, it is further noteworthy that the Dying Declaration of the deceased was recorded on 18.10.2019, yet, no F.I.R. came to be registered for 3 days. No other material or evidence came to be collected during those 3 days or thereafter as may lend any credibility to the prosecution story that such occurrence had been caused by the present appellants. There is absolutely no recovery to link the appellants with the occurrence.
30. Thus, we reach a point that the prosecution story hinges solely and wholly on one doubtful fact of Pyare Lal (P.W.-1) and Suman Devi (P.W.-2) having spotted the present appellants at place marked ‘D’ in the site plan which is (as per the oral evidence), a place between the “new house” and the “old house” of the informant side. Since it was the only adverse circumstance that may ever have linked the present appellants, it was mandatory that the appellants should have been confronted with that adverse circumstance before the statement recorded under Section 313 Cr.P.C., the law on the issue is clear.
31. It is in this state of evidence, the statement of the accused arose under Section 313 Cr.P.C. Section 313 Cr.P.C. reads as below:
“313. Power to examine the accused.
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any 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 a summons-case, where the Court has dispensed with the personal attendance of the 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 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.
[(5) The Court may take help of Prosecutor and 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.]”
32. Section 313 Cr.P.C. contains a provision of law that in effect is pari materia to the pre-existing Section 342 of the Code of Criminal Procedure, 1898. In that context, in Tara Singh vs State, (1951) SCC OnLine SC 49, it was observed as under:
“38. The whole object of Section 342 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 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.”
33. In Jai Dev v. State of Punjab, AIR 1963 SC 612, a three-judge bench of the Supreme Court elaborated on the test to be applied to determine if that provision of law had been fairly complied with. It was thus observed:
“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 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.”
34. Then, in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, another three-judge bench of the Supreme Court observed as below:
“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 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.”
35. Then, in Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was observed as below:
“5. The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. 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.”
36. In Asraf Ali V. State of Assam (2008) 16 SCC 328, applying the same principle, to Section 313 Cr.P.C., the Supreme Court observed as below:
“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 a 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.”
37. Next, in Alister Anthony Pareira vs State of Maharashtra, (2012) 2 SCC 648, then pre-existing law was noticed. Thereafter, it was observed as below:
“61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.”
38. That principle of law was again applied and followed by the Supreme Court in Maheshwar Tigga v. State of Jharkhand, AIR (2020) SC 4535.
39. In Raj Kumar v. State (NCT of Delhi), (2023) 17 SCC 95 : 2023 SCC OnLine SC 609, the Supreme Court summarized the law under Section 313 Cr.P.C., in the following words:
“22. The law consistently laid down by this Court can be summarised as under:
22.1. It is the duty of the trial court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction.
22.2. The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence.
22.3. The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused.
22.4. The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused.
22.5. If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident.
22.6. In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him.
22.7. In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under Section 313CrPC.
22.8. While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.”
40. More recently, in Naresh Kumar v. State of Delhi, (2024) SCC Online SC 1641, the issue of material prejudice caused for reason of non-examination/inadequate disclosure made under Section 313 Cr.P.C., was again considered. Though the principle in law laid down in Raj Kumar (supra) was taken note, it was specifically observed as below :
“21. We have already held that whether non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused. True that the onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination under Section 313, Cr. P.C., is on the convict concerned. We say so, because if an accused is ultimately acquitted, he could not have a case that he was prejudiced or miscarriage of justice had occurred owing to such non-questioning or inadequate questioning.
22. In the light of the above view of the matter, we are inclined to consider the further question whether the non-questioning on the aforesaid twin incriminating circumstances to the appellant during his examination under Section 313, Cr. P.C., had caused material prejudice to him. The decision of this Court in State of Punjab v. Swaran Singh8, constrain us to consider one another factor while considering the question of prejudice. In Swaran Singh‘s case (supra), this Court held that where the evidence of the witnesses is recorded in the presence of the accused who had the opportunity to cross examine them but did not cross examine them in respect of facts deposed, then, omission to put question to the accused regarding the evidence of such witnesses would not cause prejudice to such an accused and, therefore, could not be held as grounds vitiating the trial qua the convict concerned…”
41. Thus, it may be safely inferred, in the first place, it was a requirement of law to confront the accused with the adverse evidence received against him or the inculpatory circumstances proven by the prosecution, to give the accused an opportunity to offer his response thereto. That remains a necessary concomitant of a fair trial. It inhers a reflection/extension of the principle audi alteram partem, arising from due enforcement of rule of natural justice.
42. First, at the stage of framing of charge, the accused is confronted with the nature of occurrence attributed to him, to allow him fair opportunity to take a stand – whether guilty or not-guilty. Once such accused pleads not-guilty, the trial commences. The trial court receives evidence, to prove the charge framed against the accused, in his presence. It also allows the accused an opportunity to cross-examine the witnesses, appearing to prove various elements of the charge or the occurrence. Upon prosecution evidence being complete, the statement under Section 313 Cr.P.C. is required to be recorded by way of the next stage of compliance of the rule of natural justice, to confront the accused with the exact nature of adverse circumstances, found proven against him. Unless inculpatory facts are first confronted to the accused, the risk of prejudice being caused to the accused, at the stage of leading defence evidence, may arise. What prejudice may or may not arise, would depend on individual facts of each case.
43. Suffice to note that in absence of such confrontation being offered, it may not have become open to the learned court below to rely on such circumstantial evidence that all the appellants were seen fleeing from the place of occurrence.
44. Last but not the least, even if we keep the issue of compliance of Section 313 Cr.P.C. apart, we may also note that at the most prosecution was able to establish that the appellants were present at the place marked ‘D’ which would be at about 20-30 pace distance from the place of occurrence, but it is not the place of occurrence. In the absence of any recovery and in absence of any other corroborative material to establish that the occurrence had been caused by the appellants, even if accepted the appellants were seen present at a place away from the place of occurrence. It may not construe a link in the chain of evidence that the prosecution was burdened to prove. Plainly, the prosecution was unable to prove that the appellants had caused the occurrence or had fled from the place of occurrence and were thereafter seen near that place. Thus, more than reasonable doubt is seen to exist in the prosecution story based solely on circumstantial evidence.
45. For all the above reasons, we are unable to accept the prosecution story. In material part, it is contradicted by the Dying Declaration itself which is the sheet anchor of the prosecution story.
46. Accordingly, the appeal is allowed. The impugned judgement and order dated 15.12.2023 is set aside. The appellants are in jail. Let them be released forthwith if not wanted in any other case. The mandate of Section 437-A of Cr.P.C. shall be complied.
Order Date :- 9.4.2025
SA
(Dr. Gautam Chowdhary, J.) (S.D. Singh, J.)