Object of Section 313 Cr.P.C. is to establish direct dialogue between the Court and the Accused [CASE LAW]

Penal Code, 1860 - Ss. 279, 337 & 338 - Motor Vehicle Act, 1988 - S.181 - Prosecution has failed to prove its case beyond reasonable doubt. The court has to keep in mind that the standard of proof required in a criminal case is that it has to be proved beyond reasonable doubt that it was the accused alone who had committed the offence.

Criminal P.C. 1973 - S. 313- Power to examined the accused - The object of Section 313 Cr.P.C. is to establish direct dialogue between the Court and the accused.

This Section requires the accused to be examined for the purpose of enabling him “to explain any circumstance appearing in evidence against him”. It is one of the most fundamental principles to be observed in a criminal trial that the accused should be called upon to explain the evidence against him and should thus be given an opportunity of stating his own case. The maxim audi alteram partem expresses an elementary rule of justice. It seems to be extremely unfair for the court to rely upon a circumstance as being incriminating without giving the accused any notice of it and without giving him an opportunity of explaining the circumstance. This Section is based on fundamental principle of fairness, therefore, the Court is under legal obligation to put the incriminating circumstances before the accused and solicit his response.

The object of Section 313 Cr.P.C. is to establish direct dialogue between the Court and the accused. If a point in evidence is important against the accused and conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Two occasions are contemplated under Section 313 Cr.P.C. for examination of the accused. The first relates to the putting of questions at any stage of the trial or inquiry and the second when the prosecution evidence is over and the accused is called upon to enter on his defence. In the former case, there is no obligation on the Court to put any question. The Court may do so to the extent considered necessary. The questioning is purely optional. In the latter case, however, it is imperative on the Court to question the accused generally on the case and is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It has, 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 statement can be taken aid to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, then the inculpatory part of his statement under Section 313 cannot be made the sole basis of his conviction. 

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

26th December, 2018

Cr. R. No. 54 of 2011

Narain Tiwari v. State of H.P.

For the Petitioner : Mr. Bimal Gupta, Sr. Advocate with Mr. Vineet Vashishta, Advocate, for the petitioner.

For the Respondent : Mr. Sudhir Bhatngar, Addl. A.G. with Mr. Bhupinder Thakur, Dy. A.G., for the respondent.

Tarlok Singh Chauhan, Judge

Aggrieved by the judgment of conviction and sentence passed by the learned Judicial Magistrate and as affirmed by the learned Sessions Judge, the petitioner has filed the instant revision petition.

2. The case of the prosecution was that on 14.11.2004 at about 2:15 P.M. a telephonic message vide report Ext.PW6/A was received from M.O. Vohra Hospital, Paonta Sahib, upon which ASI Mohar Singh alongwith other police officials visited the hospital. The complainant Jalam Singh vide his statement Ext.PW1/A reported to the police that today on 14.11.2004 at about 1:30 P.M., he was going to his house from his shop on his scooter No. HP-17-3490. He was running a furniture shop near the Bangran Chowk and is having residence at Devi Nagar in Paonta Sahib. In process when he reached near Vohra Hospital, a Jeep bearing No. HP-17-8312 which was standing there, all of a sudden, started reversing in a high speed. The complainant tried to save himself but despite that the said Jeep struck against his scooter as a result of which he fell down and received injuries on his person. He came to be moved to Vohra Hospital. He remained specific that the said accident took place due to rash and negligent driving by the driver of Jeep No. HP-17-8312, who was Narain Tiwari. On his statement, FIR Ext.PW8/A was registered. The case was investigated, during which spot map Ext.PW9/A was prepared. The Jeep alongwith its R.C., insurance and keys on being produced by accused Narain Tiwari was taken into possession vide memo Ext.PW4/A. The Jeep was then subjected to mechanical examination vide memo Ext.PW7/A. The photographs of spot were also taken as Ext.P1 to Ext. P3 and on being developed, Ext.P4 to Ext.P6 were placed on record. The complainant was subjected to medical examination vide MLC Ext.PW5/A and was also got x-rayed vide x-ray film Ext.PW5/B. Statements of witnesses were recorded and after completion of investigation, the case was registered against the accused/petitioner.

3. After ensuring the presence of accused person before the trial court, he was admitted on bail and his bail bonds were taken on record. Thereafter, provisions of Section 207 Cr.P.C. were complied with by supplying the copies of challan and other documents to accused and a notice of accusation for the commission of offences punishable under Sections 279, 337, & 338 IPC was put to the accused to which he pleaded not guilty and claimed trial.

4. In order to prove its case, prosecution has examined as many as 9 witnesses in all and after closure of prosecution evidence statement of accused under Section 313 Cr.P.C. was recorded during which he pleaded his innocence and denied the whole case of prosecution.

5. The learned Trial Court after recording evidence and evaluating the same convicted the petitioner under Sections 279, 337 and 338 of the IPC and Section 181 of the Motor Vehicle Act and sentenced him to undergo as under:-

Under Section 279 IPC Simple imprisonment for one month and to pay a fine of Rs. 500/- and in case of default, to further undergo simple imprisonment for 7 days.

Under Section 337 IPC Simple imprisonment for one month and to pay a fine of Rs.500/- and in case of default to further undergo simple imprisonment for 7 days.

Under Section 338 IPC Simple imprisonment for three months and to pay a fine of Rs.1000/- and in case of default to undergo simple imprisonment for one month.

Under Section 181 of M.V. Act To pay a fine of Rs. 200/- and in case of default to undergo simple imprisonment of 7 days. All the sentences were ordered to run concurrently.

6. Aggrieved by the aforesaid judgment of conviction and sentence, the petitioner filed an appeal before the learned Sessions Judge, however, the same was also came to be dismissed on 17.02.2011, constraining the petitioner to file the instant revision petition.

7. It was vehemently argued by Shri Bimal Gupta, learned Senior Advocate duly assisted by Mr. Vineet Vashisht, learned Advocate, that the findings recorded by learned Courts below are perverse, therefore, deserve to be set aside.

8. On the other hand, Shri Sudhir Bhatnagar, learned Additional Advocate General, would support the judgments and argued that the same are in consonance with the material that has come on record by way of evidence, therefore, the same deserve to be upheld, more particularly, when this Court is exercising its revisional jurisdiction. 

I have heard learned counsel for the parties and have gone through the material placed on record.

9. The revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioners have been convicted and sentenced without examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on 13.09.2017, wherein the scope of criminal revision has been delineated in the following manner:- 

“12. In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon’ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

13. In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon’ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that “judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system”.

14. In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon’ble Apex Court observed that High Court “committed an error in making a re-assessment of the evidence” as in its revisional jurisdiction it was “not justified in substituting its own view for that of the learned Magistrate on a question of fact”.

15. In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon’ble Supreme Court in the following terms: 

“It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope.” 

16. In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon’ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.

17. In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon’ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.

18. In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as under: “It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint.” 

19. In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon’ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when “there exists a manifest illegality in the order or there is a grave miscarriage of justice”.

20. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon’ble Supreme Court held as under: 

“In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 

21. In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon’ble Supreme Court held as under: 

“The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment.” 

10. In order to see whether there is any perversity in the judgments and findings recorded by the learned Courts below, it would be necessary to look into the evidence that has come on record.

11. However, before doing so, it needs to be observed that it was on the basis of the statement of the accused under Section 313 Cr.P.C. that he has been ordered to be convicted whereas it is more than settled that the statement of accused under Section 313 Cr.P.C. cannot be the sole basis for convicting the accused. Though the said statement can be used to lend assurance to the other evidence adduced by the prosecution.

12. Section 313 Cr.P.C. reads thus:- 

“Section 313. Power to examined 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.” 

13. This Section requires the accused to be examined for the purpose of enabling him “to explain any circumstance appearing in evidence against him”. It is one of the most fundamental principles to be observed in a criminal trial that the accused should be called upon to explain the evidence against him and should thus be given an opportunity of stating his own case. The maxim audi alteram partem expresses an elementary rule of justice. It seems to be extremely unfair for the court to rely upon a circumstance as being incriminating without giving the accused any notice of it and without giving him an opportunity of explaining the circumstance. This Section is based on fundamental principle of fairness, therefore, the Court is under legal obligation to put the incriminating circumstances before the accused and solicit his response.

14. The object of Section 313 Cr.P.C. is to establish direct dialogue between the Court and the accused. If a point in evidence is important against the accused and conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Two occasions are contemplated under Section 313 Cr.P.C. for examination of the accused. The first relates to the putting of questions at any stage of the trial or inquiry and the second when the prosecution evidence is over and the accused is called upon to enter on his defence. In the former case, there is no obligation on the Court to put any question. The Court may do so to the extent considered necessary. The questioning is purely optional. In the latter case, however, it is imperative on the Court to question the accused generally on the case and is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It has, 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 statement can be taken aid to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, then the inculpatory part of his statement under Section 313 cannot be made the sole basis of his conviction.

15. As observed earlier, the trial Magistrate convicted the petitioner mainly on the basis of the statement made by him under Section 313 Cr.P.C. as would be evident from para 6 of the judgment, which reads thus:- 

“6. The accused during his statement under Section 313 of Cr.P.C. answered the question that on the relevant day and time, he was driving Jeep No. HP-17-8312 near Vohra Hospital and while reversing the same in high speed and in rash and negligent manner struck the same against scooter of the complainant, in manner that it is incorrect and further has stated that he was at home and his vehicle was being parked. By this answer, he has shown that he was at home and the vehicle was being in a parked condition. He as such denied the fact that he was driving the said vehicle at the relevant time and the said accident would have taken place due to his rash and negligent driving. He further to the question that he produced the Jeep alongwith its R.C., insurance and key vide memo Ext.PW4/A to the police on 14.11.2004, replied that he produced the vehicle alongwith these documents on the next day in the police station. To the question that the vehicle belongs to him and he got it released from the Court, he replied that it pertains to one Bishan Singh and accordingly denied that he i.e. accused got it released from the accused. This manner of answers during his statement u/ 313 of Cr.P.C shows that the accused has not given answers specifically tot he questions being put to him. He by way of his above manner of answers has shown that he has a concern with the vehicle and accordingly produced the same on the next day in the police station. But at the same time, he has answered that the vehicle belongs to one Bishan Singh and denied the fact of its release from the court. The perusal of the case file shows that the accused earlier had moved an application for release of the vehicle by alleging that he is owner of the vehicle but later on got the application dismissed as withdrawn. Thereafter, the vehicle was got released from the court by one Kundan who alleged himself to be the owner of the said vehicle. Thus, the accused has not given specific answers to the question put to him. These manners of answers show that the vehicle definitely was in his possession and he accordingly produced it to the police. He however, is showing that he produced it on next day of the incidence i.e. on 15.11.2004, but memo Ext.PW4/A shows that it was produced on the very same day on which the accident took place i.e. on 14.11.2004.” 

16. Obviously, in this background, the judgment passed by the learned Trial Court is perverse and, therefore, cannot be sustained.

17. Now, adverting to the judgment passed by the learned first Appellate Court, it has unfortunately not at all adverted to the evidence in its entirety and has only considered that part of the evidence which supports the case of the prosecution and not the one which casts a doubt or dents the prosecution story to the advantage of the appellant/petitioner. This would be clearly evident from the further discussion.

18. PW1 Jalam Singh is the complainant who did not support the case of the prosecution and was, therefore, declared hostile. He had deposed that on 14.11.2004, at about 1:30 p.m., he was going to his house for taking lunch on his scooter bearing No. HP-17-3490 and when he reached near Vohra Hospital, in the meanwhile jeep reversed from the left side and struck against his leg, as a result of which, he alongwith his scooter fell down and sustained injuries. He further deposed that he did not know the number or name of the driver of the jeep and was declared hostile. In his cross-examination by the learned APP, he admitted that he got his statement Ex.PW1/A recorded with the police and signed the same. However, he denied that he had disclosed the number of jeep as HP-17-8312 and had also given the name of the driver as Narain Tiwari. He has further stated that he could not tell that the accident had occurred on account of the rash and negligent driving on the part of the driver of the jeep.

19. PW2 Faruq Khan, who according to the prosecution, was an eye witness, deposed that on relevant date at about 12 or 1:00 o’clock during day time, he was standing outside the Vohra Hospital on the road. In the meanwhile, a scooter came from the Badripur side and when it reached near the Vohra Hospital, a jeep standing there all of a sudden reversed back and struck against the scooter. But then even this witness did not disclose the number of the vehicle or the name of its driver and was, therefore, declared hostile. On being cross-examined by the learned APP, this witness denied the suggestion that the number of the jeep was HP-17-8312 or that the name of the driver of the jeep was Narain Tiwari.

20. The only other so-called independent witness examined by the prosecution is PW3 Om Prakash, who admitted that he is not an eye witness and came to the spot only after hearing the noise of accident. Meaning thereby, that he reached the spot after the accident had occurred and, therefore, his testimony has no relevance.

21. PW7 HHC Subhash Chand had mechanically examined the vehicle and issued report Ext.PW7/A, wherein it was stated that there was no mechanical default in the vehicle, however, the left indicator on the back side of the jeep was found broken.

22. PW5 Dr. Vijay Vohra, who had medically examined the injured/complainant proved MLC Ext.PW5/A to prove that the complainant had sustained injuries.

23. Evidently, from the testimonies of these witnesses especially that of the complainant while appearing as PW1 and that of PW2 Faruq Khan, it is absolutely clear that not only they did not support the case of the prosecution but they further did not even identify the vehicle or its driver.

24. Thus, it is evident that the prosecution has failed to prove its case beyond reasonable doubt. The court has to keep in mind that the standard of proof required in a criminal case is that it has to be proved beyond reasonable doubt that it was the accused alone who had committed the offence.

25. Therefore, in the given circumstances and on the basis of the aforesaid discussion, it can conveniently be held that the findings recorded by the learned Sessions Judge are also perverse and, therefore, cannot be upheld.

26. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and the judgments of conviction and sentence as passed by the learned Courts below are ordered to be set aside and the petitioner is honourably acquitted. Bail bonds furnished by the petitioner are ordered to be discharged.