REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  174 OF 2001

Asraf Ali  …..Appellant

Versus

State of Assam  …..

Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. In this appeal challenge is to the judgment of a learned

Single Judge of the Guwahati High Court partially allowing the

appeal  filed by the appellant. Learned District and Sessions

Judge, Kamrup in Sessions Case No.15/K-G/88 convicted the

appellant for offence punishable under Section 304 Part I  of

the Indian Penal Code, 1860 (in short the ‘IPC’) and sentenced

to undergo rigorous imprisonment for 10 years and to pay a

fine of Rs.200/- with default stipulation.  

2. By the impugned judgment, learned Single Judge altered

the conviction to Section 304 Part II  IPC and sentenced the

appellant to undergo RI for 5 years.  

3. Background facts in a nutshell are as follows:

On 14.9.1986 at about 8.00 p.m. an FIR was lodged by

one  Abbash  Ali  (PW-1)  before  the  Officer-in-Charge,

Bharalumukh  Police  Station  mentioning  therein  that  about

9.30 a.m. on that day the accused Asraf Ali assaulted Khairul

Hoque, son of Nazim Ali with a piece of wood as a result of

which  said  Khairul  Hoque  (hereinafter  referred  to  as  the

‘deceased’)  sustained  injuries  on his  head.  The  injured was

removed  to  the  Gauhati  Medical  College  Hospital  where  he

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succumbed to injuries at about 5.30 p.m. Police registered a

case  and  after  completion  of  the  investigation  submitted

charge sheet under Section 302 IPC. On committal, learned

trial Court framed charges under Section 302 IPC. During the

trial prosecution examined 10 witnesses including the doctor

and  the  Investigation  Officer.  Accused  also  examined  3

witnesses to substantiate its plea of innocence. P.W.1 is the

informant  who  reported  about  the  incident  and  attended

Gauhati Medical College Hospital. He was present during the

inquest.  PW-2 Md. Nurul Islam deposed that he was not in

Gauhati and when he was contacted by police he informed the

police that he knew both accused and deceased. Police took

his  help  to  identify  the  accused  but  accused  could  not  be

found.  On  the  day  of  occurrence,  PW-3  Mustt.  Nurjahan

Begum,  was  informed  by  Mozaraf  that  her  husband  was

assaulted by Asraf and the victim had been admitted in the

Gauhati Medical College Hospital. She saw the dead body on

the next day when it was brought to her place. According to

this  witness  some  clash  had  been  going  on  between  her

husband and accused. PW-4 in his deposition only mentioned

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about some quarrel  which took place between the deceased

and accused’s family, but he did not specifically indicate when

such occurrence took place. PW-5 Md. Talmizur Rehman was

examined  by  the  prosecution  as  eye  witness  and  in  his

deposition he stated that occurrence took place one morning

in  1986.  According  to  this  witness,  one  day  he  found  one

Sarma  had  engaged  two  laborers  for  repairing  the  walls  of

Khairul’s  house.  Accused  Asraf  Ali  forbade  from  Sarma

working there.  He  heard  their  words  only  from outside.  He

advanced  to  Khairul’s  house  and  on  going  there  he  found

Khairul in his house and accused was standing at doorstep

with a stick in his hand. He did not see Khairul as to what he

had  been  doing  inside  the  house.  About  that  time  he  saw

Khairul coming out of the house and then moving towards the

road.  Asraf  ran  after  Khairul  taking  a  lathi  in  his  hand.

Moving towards the road he found Khairul lying on the road.

Asraf was standing at his doorstep holding the lathi some five

or  six  metres  away from the spot  where  Khairul  was lying.

Approaching  Khairul  he  saw  the  injury  on  the  head  and

bleeding from the injury. He went to call a rickshaw to carry

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Khairul  to  hospital  and  in  the  meantime  Mazafar  Hussain

(PW-8) had taken the injured to Kumarpara Nursing Home by

another rickshaw. He and Maniruddhin went to the Nursing

Home  and doctor of the Nursing Home advised them to take

the injured  to the Medical College Hospital and accordingly he

and  Maniruddin  took  the  injured  to  the  Gauhati  Medical

College Hospital. PW-6 is a school teacher who spoke about

the seizure of wooden stick from accused Asraf’s house. Ext.4

is  the  seizure  list,  Ext.  4(1)  is  his signature.  The stick was

2/2½  feet  long.  PW-7  is  doctor.  S.I.  Barbhuyan  who

conducted  the  autopsy  found  the  following  injuries  on  the

deceased:

“…Injury No.1-Lacerated injury 7 C.M. length present  in  the  right  parietal  region transversely placed and extending posteriorly. There  are  8  stitches  with  black  silk.  After removal of the stitches the gap is 0.6 cm wide and is bone deep.       

Injury no.2- Lacerated injury in the scalp 5 cm x  0.5  cm  in  the  left  temporal  region  – transversely  placed  and  slightly  carving upwards to the parietal region and bone deep. No ligature  mark on the  neck  on dissection, next tissues are healthy.

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Cranium and Spinal Canal:-

Scalp- As described in injury No.1 and injury No.2  clotted  blood  present  underneath  the whole of the scalp except in the frontal region.

Skull-  Featured  fracture  of  the  skull  16  cm long  involving  the  frontal  and  right  parietal bone  extending  from  above  the  right  orbit backwards and posteriority and ending in the landoid suceer. …”

4. According to the doctor the cause of death was due to

coma  resulting  from  head  injury.  The  injuries  were  ante-

mortem and caused  by  blunt  weapon and consistent  to  be

homicidal  in  nature.  PW-8  is  Mozafar  Hussain,  who  at  the

relevant time was clearing the jungle of the well of his rented

house at Santipur and at that time he saw Khairul run past

behind him. He saw accused Asraf Ali going five feet behind

him. He saw and found Khairul  lying on the road some 25

yards away from the  well.   Khairul  sustained injury on his

head. He also saw blood coming out of his head. He did not

see  accused  Asraf  Ali  there.  According  to  this  witness  he

helped the deceased to get admission at the Medical College

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Hospital. Khairul died in the hospital. PW-9 Maniruddin was

declared hostile by the prosecution. PW-10 is the investigating

officer who stated about the seizure of the lathi. According to

his evidence the weapon used by the accused was a piece of

wood.  

5. The  accused  was  examined  under  Section  313  of  the

Code  of  Criminal  Procedure,  1973 (in short the ‘Code’)  who

denied his involvement in the offence. Three witnesses were

examined by the accused to support his plea of alibi. The trial

Court on consideration of evidence on record did not accept

the plea of alibi. He found seven circumstances to be clinching

in  nature  which  proved  and  established  the  guilt  of  the

accused. They were as follows:

“…..The  proved  circumstances  in  the case have established that (i) that the accused person  had  a  quarrel  with  the  deceased regarding sale of land and house; (ii) that the accused  had  threatened  the  deceased  with assault; (iii) that just prior to the incident the accused was seen standing outside the house of the deceased with a lathi in hand; (iv) that the  accused  was  seen  chasing  the  deceased

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with a lathi in hand; (v)  that soon thereafter the deceased was found lying on the road with injuries on head; (vi) that soon after the crime the  accused  absconded;   and  (vii)  that  the accused led police and produced the weapon of  assault.  Each of  these  circumstances  has been  proved  beyond  reasonable  doubt  and taken collectively leads to only on conclusion that  it  was  accused  Asraf  Ali  and  accused Asraf  Ali  alone  who had  killed  the  deceased Khairul Hoque….”

6. As noted above, the trial Court found the accused guilty

and convicted  him.   One  of  the  main  planks  of  arguments

before the High Court in appeal was that the questions put to

the accused in the examination under Section 313 of the Code

did not focus on the evidence on record and the accused was

therefore  prejudiced  because  no  definite  accusations  or

statement of any witness was brought to his notice. Though

the High Court found that the circumstances relied upon by

the prosecution were not specifically brought to the notice of

the  accused  it  observed  that  the  object  of  questioning  an

accused person under Section 313 of the Code is to provide an

opportunity  to  the  accused  of  explaining  the  circumstances

that appear against him in evidence. It was further noted that

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the evidence against the accused consisted of circumstantial

evidence  only  and  the  circumstances  should  have  been

brought to his notice  and his explanation called  for.  It  was

noted  that  the  trial  Court  faltered  in  its  duty  in  the

examination.  But  the  High  Court  felt  that  no  material

prejudice  was caused  to  the  accused  and the  accused  was

found  to  be  absconding  for  long  time  and  rancorous

relationship  between  the  deceased  and  the  accused  was

established.  However, the High Court found that the proper

conviction would be under Section 304 Part II IPC.  

7. Learned  counsel  for  the  appellant  submitted  that  the

true purpose and import of Section 313 of the Code has not

been kept in view by the High Court.  It  is pointed out that

none of the witnesses were really eye witnesses. But the Court

proceeded  on  the  basis  as  some  persons  had  seen  the

incidence.  

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8. Learned counsel  for the respondent on the other hand

submitted  that  the  questions  though  broadly  formulated

covered the basic features.  

9. Section 313 of Code reads as follows:

“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.

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(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.”

10. The forerunner of the said provision in the Old Code was

Section 342 therein. It was worded thus:

“342. (1) For the purpose of enabling the accused to explain  any  circumstances  appearing  in  the evidence against him, the court may, at any stage of any inquiry or trial, without previously warning the accused,  put  such questions  to  him as the  court considers  necessary,  and  shall,  for  the  purpose aforesaid, question him generally on the case after the  witnesses  for  the  prosecution  have  been examined and before he is called on for his defence.

(2)  The  accused shall  not  render himself  liable  to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.

(3) 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.

(4)  No oath shall  be  administered  to  the  accused when he is examined under sub-section (1).”

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11. Dealing with the position as the section remained in the

original form under the Old Code, a three-Judge Bench of this

Court in Hate Singh Bhagat Singh v. State of Madhya Bharat

(AIR 1953 SC 468)  that:

“The  statements  of  the  accused  recorded  by the  Committing  Magistrate  and  the  Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness- box. They have to be received in evidence and treated as evidence and be duly considered at the trial.”

12. In  Sharad  Birdhichand  Sarda v.  State  of  Maharashtra

(1984 (4) SCC 116) it was inter-alia noted as follows:

“143- Apart from the aforesaid comments there is one  vital  defect  in  some  of  the  circumstances mentioned above and relied upon by the High Court viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal  Procedure  Code,  1973  they  must  be completely excluded from consideration because the

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appellant did not have any chance to explain  them. This has been consistently held by this Court as far back  as  1953  where  in  the  case  of  Hate  Singh Bhagat Singh v. State of Madhya Pradesh (AIR 1953 SC 468) this Court held that any circumstance in respect  of  which  an  accused  was  not  examined under Section 342 of the Criminal Procedure Code cannot  be  used  against  him.  Ever  since  this decision,  there  is  a  catena  of  authorities  of  this Court  uniformly  taking  the  view  that  unless  the circumstance appearing against an accused is put to him in his examination under Section 342 of the old  Code  (corresponding  to  Section  313  of  the Criminal Procedure Code, 1973),  the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra (1976 (1) SCC 438) this Court held thus: (SCC para 5, p. 440)

The  fact  that  the  appellant  was said to be absconding, not having been put to him under Section 342, Criminal Procedure  Code,  could  not  be  used against him.”

13. 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 necessary corollary

therefrom that each material  circumstance appearing in the

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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. The object of Section 313 of

the Code is to establish a direct dialogue between the Court

and  the  accused.  If  a  point  in  the  evidence  is  important

against  the  accused,  and  the  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. Where no specific question has been put by the

trial  Court  on  an  inculpatory  material  in  the  prosecution

evidence,  it  would  vitiate  the  trial.  Of  course,  all  these  are

subject  to  rider  whether  they  have  caused  miscarriage  of

justice or prejudice. This Court also expressed similar view in

S.  Harnam  Singh  v.  The  State  (AIR  1976  SC  2140),  while

dealing  with  Section  342  of  the  Criminal  Procedure  Code,

1898  (corresponding  to  Section  313  of  the  Code).  Non-

indication of inculpatory material in its relevant facets by the

trial  Court  to  the  accused  adds  to  vulnerability  of  the

prosecution  case.  Recording  of  a  statement  of  the  accused

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under Section 313 is not a purposeless exercise.

14. Contextually we cannot bypass the decision of a three-

Judge  Bench  of  this  Court  in  Shivaji  Sahabrao  Bobade v.

State of Maharashtra (1973 (2)  SCC 793) as the Bench has

widened the sweep of the provision concerning examination of

the  accused  after  closing  prosecution  evidence.  Learned

Judges in that case were considering the fallout of omission to

put  to  the  accused  a  question  on  a  vital  circumstance

appearing against him in the prosecution evidence. The three-

Judge Bench made the following observations therein: (SCC p.

806, para 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

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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.”

15. What is the object of examination of an accused under

Section 313 of the Code? The section itself declares the object

in explicit language that it is “for the purpose of enabling the

accused personally to explain any circumstances appearing in

the  evidence  against  him”.  In  Jai  Dev v.  State of  Punjab

(AIR1963  SC  612) Gajendragadkar,  J.  (as  he  then  was)

speaking  for  a  three-Judge  Bench  has  focussed  on  the

ultimate test in determining whether the provision has been

fairly complied with. He observed thus:

“The ultimate test  in determining whether or not  the  accused  has  been  fairly  examined

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under  Section  342  would  be  to  inquire 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.”

16. Thus  it  is  well  settled  that  the  provision  is  mainly

intended to benefit the accused and as its corollary to benefit

the court in reaching the final conclusion.

17. At the same time it  should be borne in mind that the

provision is not intended to nail him to any position, but to

comply  with  the  most  salutary  principle  of  natural  justice

enshrined in the maxim audi alteram partem. The word “may”

in  clause  (a)  of  sub-section(1)  in  Section  313  of  the  Code

indicates, without any doubt, that even if the court does not

put any question under that clause the accused cannot raise

any grievance for it. But if the court fails to put the needed

question under clause (b) of the sub-section it would result in

a handicap to the accused and he can legitimately claim that

no evidence, without affording him the opportunity to explain,

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can  be  used  against  him.  It  is  now  well  settled  that  a

circumstance  about  which  the  accused  was  not  asked  to

explain cannot be used against him.

18. In certain cases when there is perfunctory examination

under Section 313 of the Code, the matter is remanded to the

trial Court, with a direction to re-try from the stage at which

the prosecution was closed.   

19. In the instant case, the questions put to the accused in

his examination under Section 313 read as follows:

“The  witnesses  have  stated  in  their evidence that at about 9.30 a.m. on the day of occurrence  you  caused  severe  injuries  to Khairul Hoque by assaulting him on the head from behind with a piece of timber and that in the evening on the very day he succumbed to the  injuries  in  Guwahati  Medical  College Hospital.  You  may  say  if  you  have  any regarding the evidence.  

P.W.10  Ahindra  Kumar  Kalita  (S.I.  of Police) has stated in his evidence that during his  investigation  into  this  case  when  you produced a piece of timber he seized it through Ext.4. You may say if you have any regarding this evidence.  

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You may say if you have any as regards allegation  of  committing  murder  leveled against you and other evidence.

You  may  adduce  evidence  in  defence  if you have any. Summon witnesses.”

20. As rightly contended by learned counsel for the appellant

no  witness  has  stated  that  on  the  date  of  occurrence  the

accused  had  caused  severe  injury  to  the  deceased  by

assaulting him on the head from behind. The circumstances

which were relied upon by the trial Court to find the accused

guilty  were  not  specifically  brought  to  the  notice  of  the

accused. Therefore, in essence, his examination under Section

313 of  the Code  was rendered  an empty formality.  On that

count alone, the impugned judgment of the High Court cannot

be sustained and is set aside. The conviction recorded stands

set aside. The bail bond of the appellant who is on bail shall

stand discharged.  

21. The appeal is allowed.  

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…………………………..J. (Dr. ARIJIT PASAYAT)

…………………………..J. (P. SATHASIVAM)

New Delhi, July 17, 2008

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