‘S. 313 CrPC Not Empty Formality, Not Putting Incriminating Material To Accused Seeking Explanation Causes Prejudice To Him’: Allahabad HC

The bench of Justice Siddhartha Varma and Justice Manish Kumar Nigam observed that the accused could not explain a vital circumstance as he was never confronted with the incriminating material of the dying declaration, which formed the basis of the conviction.

“Recording of a statement under Section 313 of the CrPC is not an empty formality during the trial. Section 313 CrPC prescribes the procedure to safeguard the interest of the accused. Obviously, in the absence of seeking an explanation on this vital point, prejudice is caused to the accused,” the Court added.

The case in brief

The Court was adjudicating upon an appeal preferred against a judgment dated November 30, 2016, passed by Addl. District and Sessions Judge, Gorakhpur convicting Rameshwar Lal Chauhan (appellant-accused) for the offence punishable under Section 302 IPC and sentenced him to life imprisonment. The Trial Court found him guilty of killing his wife by pouring kerosene oil on her and setting her to fire.

The Trial Court primarily relied upon the dying declaration of the deceased for convicting the accused as the witnesses of fact, including the father, mother and brother of the deceased, had not supported the prosecution version and were declared hostile.

In his appeal before the HC, the Counsel for the accused argued that since all the witnesses of fact had not supported the prosecution version, the trial court ought not to have convicted the accused-appellant only on the basis of the dying declaration of the deceased without there being any other corroborative evidence.

On the other hand, the AGA appearing on behalf of the State submitted that there is no impediment in relying upon the dying declaration of the deceased without there being any corroborative evidence.

High Court’s analysis

At the outset, the Court observed that it is a settled law that if a dying declaration inspires full confidence, it can form the basis for conviction. However, the Court added that the fact of having made the statement and the truthfulness of the said statement, both are required to be established before a declaration is termed as reliable.

“For ascertaining the truthfulness of the statement of a dying person, the parameters, which are applied to the witnesses while judging the reliability of their evidence, must be applied. The reliability of a version of a witness would depend on several factors including the opportunity available to the witness to know the physical and mental capacity of the patient to convey, the kind of treatment which the patient was undergoing, chances of tutoring, relation of witness with the patient and so on. The law does not afford to take the risk of blindly relying on the statement only because it has been recorded by the Executive Magistrate. Usual scrutiny from every possible angle is a must and evidence of Executive Magistrate must withstand the test of reliability,” the Court observed.

Against this backdrop, when the Court examined the evidence connected to the dying declaration, the Court found that the timing of recording the dying declaration was doubtful.

The Court further noted that nothing had come on record to show as to how the Doctor came to the conclusion that the deceased was in a fit mental condition to give her dying declaration

The Court also took into account the fact that the FIR, which was recorded two days after the recording of the dying declaration, did not mention anything about the recording of such declaration.

“The non-mentioning of the dying declaration in the F.I.R. itself creates a doubt as to the recording of dying declaration itself especially when the deceased had not informed any other near relative as to how she had received the burn injuries,” the Court said.

The Court also added that if the dying declaration is excluded, nothing remains in the prosecution case, therefore the appellant-accused is legitimately entitled to avail the benefit of the doubt.

However, before setting aside the conviction, the Court also noted that no question with regard to the dying declaration was put to the appellant at the time of recording his statement under Section 313 CrPC.

In this regard, the Court relied upon Supreme Court’s ruling in the case of Asraf Ali Vs. State of Assam (2008) 16 SCC 328, wherein it was held that 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 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 Apex Court had observed.

Against this backdrop, the High Court noted that the trial court, though recorded the statement under Section 313 of CrPC, omitted to put questions regarding a vital circumstance to the accused during his statement.

“…the contents of written dying declaration were not put to the accused during his statement. It is really a matter of concern that the trial court did not frame the question specifically putting the incriminating material stated by deceased in her statement. Thereby, a very important circumstance was lost. The deceased in her statement (dying declaration) stated that the accused had poured Kerosene on her person and set her on fire. Particularly, this incriminating part of dying declaration has not been put to the accused to get his explanation. Although, the dying declaration Ex.Ka-8 was treated as the basis to convict the accused, the same was not put to the accused in her statement recorded under Section 313 Cr.P.C. Apparently, the accused was not given opportunity to explain this vital circumstance,” the Court said.

With this, the Court set aside the judgment and order of conviction and acquitted the accused.

Appearances

Counsel for Appellant: Rajeev Kumar Singh, Divyanshu Nandan Tripathi, P.K. Singh

Counsel for Respondent: G.A.

Case title - Rameshwar Lal Chauhan vs. State of U.P. 2023 LiveLaw (AB) 183 [CRIMINAL APPEAL No. - 6920 of 2017]

Case Citation: 2023 LiveLaw (AB) 183

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