Section 313 CrPC: Inculpatory Material As Not Put To The Accused Must Be Eschewed: SC [Read Judgment]

The Supreme Court has reiterated that the incriminating material that came in evidence is to be put to the accused during his examination under Section 313 of the Criminal Procedure Code.

The bench comprising Justice Sanjay Kishan Kaul and Justice KM Joseph said that this is in recognition of the principles of audi alteram partem so that the accused gets a fair chance to defend himself.

In this case [Samsul Haque vs. State of Assam], the contention taken before the Apex Court was that, if the circumstances are not put to the accused in his statement under Section 313 of the Cr.P.C. they must be completely excluded from consideration because the accused did not have any chance to explain them. It was urged that the questions asked did not really put the case of the prosecution to the accused as was mandatory. Agreeing with this contention, the bench observed:

The incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem.

While making the aforesaid observations, this Court also referred to its earlier judgment of the three Judge Bench in Shivaji Sahabrao Bobade v. State of Maharashtra , which considered the fall out of the omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence, and the requirement that the accused's attention should be drawn to every inculpatory material so as to enable him to explain it. Ordinarily, in such a situation, such material as not put to the accused must be eschewed. No doubt, it is recognised, that where there is a perfunctory examination under Section 313 of the Cr.P.C., the matter is capable of being remitted to the trial court, with the direction to retry from the stage at which the prosecution was closed.

Another contention raised in the appeal was that a person charged with Section 109 of the IPC (the punishment provision for Section 107 of the IPC) cannot be convicted for the main offence under Section 34 of the IPC. The bench said:

Section 34 of the IPC does not create a distinct offence and it is with the participation of the accused that the intention of committing the crime is established when Section 34 of the IPC is attracted. To rope in a person with the aid of Section 34 of the IPC, the prosecution has to prove that the criminal act was done by the actual participation of more than one person and that act was done in furtherance of a common intention of all engaged in prior concert.

Finally, the bench taking note of the evidence on record, acquitted the accused. 

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