"Improper Examination U/S 313 CrPC Caused Serious Prejudice": Allahabad HC Acquits Murder Accused In Prison For Over 30 Yrs

Holding that improper examination of a murder accused under Section 313 CrPC had caused serious prejudice to him and had resulted in miscarriage of justice, the Allahabad High Court recently acquitted the man (who remained in prison for over 30 years) of murder charges.

The Judgment by Justice Manoj Misra and Justice Sameer Jain came in an appeal filed by a Bangladesh National, Ishaque against his conviction order passed by Additional District & Sessions Judge, Ghaziabad in June 1996 for the offences punishable under Sections 302 I.P.C. and section 4/25 Arms Act.

The matter in brief 

It was argued by the counsel for the appellant/accused that the Trial Court had failed to put to him (the accused) the incriminating circumstances emanating from the prosecution evidence as is required by law for the recording of the statement of the accused under Section 313 Cr.P.C.

It was argued that since the appellant/accused is a citizen of Bangladesh, he signed all papers in Bangla therefore, even if the protection evidence was recorded in his presence, the same should have been put and explained to him in Bangla language so that he could have offered a plausible explanation to that evidence.

Arguing that the same didn't happen in the case, the counsel for the accused challenged his conviction on the ground that the failure to put to him the evidence in the language understood by him had caused serious prejudice to the appellant's defence thereby vitiating the trial and the order of conviction.

Here it may be noted that the whole object of Section 313 of CrPC is to afford the accused a fair and proper opportunity of explaining circumstances that appear against him. On various counts, the Apex Court had held that the questioning under 313 CrPC to the accused must be fair and must be couched in a form that an ignorant or illiterate person will be able to appreciate and understand.

Court's observations

Referring to several landmark rulings of the Apex Court, the Court observed in any trial, the circumstances appearing against the accused in the evidence led during the course of trial must be put to the accused (under 313 CrPC) in a form that the accused could understand as to what circumstances appearing against him in the evidence, he has to explain.

In this regard, stressing that the incriminating circumstance appearing in the evidence not put to the accused to have his explanation is ordinarily to be eschewed from consideration, the Court observed thus:

"The ultimate test, therefore, in determining whether or not the accused has been fairly examined under section 313 CrPC, would be to enquire whether having regard to all the questions put to him, did the accused get an opportunity to say what he wanted to say in respect of prosecution case against him"

Now, against this backdrop, the Court noted that in the instant case, the examination of the appellant under Section 313 Cr.P.C. was not in respect of the circumstances that appeared against him in the prosecution evidence.

Rather, the Court added, the appellant was merely apprised as to who have testified against him and what documents were produced by the prosecution.

"...in the context of the instant case, say the circumstances appearing in the prosecution evidence had been put to the accused in a manner he could have understood, he might have given an explanation that seeing his wife sleeping next to the deceased, he lost his bearings and self-control and, in a fit of sudden rage, committed the act. Such an explanation perhaps could have fit in with the prosecution evidence and absolved him of the charge of an offence punishable under section 302 IPC and might have served as a mitigating factor to convert the charge of murder to one of an offence punishable under section 304 IPC. Likewise, he could have offered an explanation as to why he was seen running, maybe by telling that because he was terrified seeing his wife, or somebody else, commit the murder. Importantly, the appellant was not seen by PW1 running with a knife though, according to PW2 he ran away with the knife whereas, the knife was recovered, found hidden, wrapped in a cloth, beneath a stack of bricks, from a Kothri near the scene of crime. Had all these circumstances been put in the form required by law and in the language understood by the accused, result might have been different," the Court observed as it came to the conclusion that the improper examination of the accused under section 313 CrPC had caused serious prejudice to the accused (appellant) and has resulted in miscarriage of justice.

The Court also noted that it can't be said with certainty as to whether he understands hindi and this fact itself should have put the trial judge on guard to ensure that the incriminating circumstances be meticulously put and explained to him to evoke his explanation under Section 313 of the Code, however, the Court opined, the same wasn't done.

Further, observing that enough safeguards were not taken by the Trial Court Judge, the Court came to the conclusion that at this stage, an exercise to record fresh statement of accused-appellant, or his counsel, under Section 313 Cr.P.C., or remit the matter back to the trial court, to cure the defect, would not be justified as he appellant has already served 30 years, 04 months and 03 days, up to 03.06.2021, in prison.

"Any fresh exercise to cure the defect, after such a long gap, would be a travesty of justice," added the Court while allowing his appeal and setting aside his conviction. 

Case title - Ishaque v. State of U.P

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