Allahabad High Court
Lalit Chauhan vs State Of U.P. on 3 April, 2025
Bench: Saumitra Dayal Singh, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:47056-DB
Court No. - 45
Case :- CRIMINAL APPEAL No. - 1455 of 2020
Appellant :- Lalit Chauhan
Respondent :- State of U.P.
Counsel for Appellant :- Abhishek Srivastava,Ajay Giri,Pawan Singh Pundir,Ramanuj Tiwari
Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Dr. Gautam Chowdhary,J.
1. Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Ramanuj Tiwari, learned counsel for the appellant, Sri Vikas Goswami, learned A.G.A.-I for the State and perused the records.
2. The present criminal appeal has arisen from judgment and order dated 24.02.2020 passed by Sri Narendra Pal Singh Tomar (H.J.S.), learned Additional District & Sessions Judge, Court No.13, District Meerut in Sessions Trial No.853 of 2016 (State of U.P. Vs. Lalit Chauhan), arising out of Case Crime No.406 of 2013, under Section 302 I.P.C, P.S. Bhawanpur, District Meerut, convicting the accused appellant and sentencing him to undergo life imprisonment for offence under Section 302 IPC and to pay fine Rs. 15,000/- and in default of payment of fine to undergo further additional simple imprisonment of six months.
3. The prosecution story emerged on the Written Report submitted on 10.10.2013 by Mohit Singh (P.W.-1 at the trial) in his own hand writing, at the Police Station Bhawanpur, District Meerut in Case No.230 of 2013 on 10.10.2013. Accordingly, the FIR was registered at 8.40 p.m. on the same day. That Written Report is exhibited as Ex.Ka-1 and the FIR is exhibited as Ex.Ka-3.
4. As per the prosecution story narrated in the FIR, sister of Mohit Singh (P.W.1), namely, the deceased Priyanka aged about 19 years was married to the present appellant on 23.02.2011. Usual dowry was given in that marriage. However, the appellant and his family members were not satisfied with that dowry. They continued to demand additional dowry of Rs.1,00,000/- and a motorcycle. It was also disclosed that the deceased used to visit her maternal home regularly. On such visits, she disclosed that the present appellant and his sister-in-law ('Jethani' of the deceased) used to physically assault her. Efforts were made to reconcile that matrimonial dispute. In the meantime, a girl child was born to the deceased, three months prior to the occurrence. In such circumstances, the first informant (P.W.-1) received a phone call on 10.10.2013, at about 4.00 p.m. informing him that the appellant, his elder brother Praveen and his wife had killed the deceased, by hanging.
5. On the strength of such FIR lodged, 'Panchayatnama' was drawn on 10.10.2013 at 09.10 p.m. In that amongst other Mohit Singh (P.W.-1) was a 'Panch' witness. The said 'Panchayatnama' is exhibited as Ex.Ka.-2 at the trial. The dead body of the deceased was subjected to autopsy. In that following ante mortem injuries were found:-
"1. Linear abrasion 10 c.m. long x 0.2 c.m. on right side of neck, 4 c.m. below right ear, extending from behind right ear to outer aspect of neck (right).
2. Linear abrasion 8 c.m. x 0.2 c.m. on left side of neck 7 c.m. below left ear, extending from left ear to outer aspect of left side of neck.
3. Multiple abrasion, oval in shape, in on area of 2.5 c.m. x 2 c.m. on inner aspect of lower lip on left side, size venes from 0.2 c.m. x 0.25 c.m. to 0.4 c.m. x 0.3 c.m.
4. One abrasion, oval in shape, on inner aspect of lower lip on right side, size 0.4 c.m. x 0.4 c.m."
6. The cause of death was recorded as "asphyxia as a result of smothering". Autopsy report was prepared by Dr. Anand Prakash. It is exhibited as Ex.Ka.2A at the trial.
7. Also, report was obtained from the forensic lab-oratory, to ascertain the cause of death. No fact came to be revealed in that examination.
8. The Investigation was completed by the C.O. Shwetabh Pandey (P.W.-7 at the trial). Upon case being committed to trial, learned court below framed following charges on 30.09.2016:-
" आरोप
मैं चन्द्र हास राम सत्र न्यायाधीश, मेरठ आप, ललित चौहान को निम्नवत् आरोपित करता हूँ
प्रथमः यह कि शादी की दिनांक 23-02-2011 से घटना की दिनांक 10-10-2013 तक भिन्न-भिन्न समय पर, स्थान ग्राम औरंगाबाद, थानान्तर्गत भावनपुर, जिला मेरठ में आपने वादी मोहित सिंह की बहन प्रियंका को दहेज की पूर्ति हेतु शारीरिक व मानसिक रूप से प्रताड़ित किया। एतद् द्वारा आपने भा०दं०सं० की धारा 498-ए के अधीन दडनीय अपराध कारित किया है, जो कि इस न्यायालय के प्रसंज्ञान में है।
द्वितीयः यह कि, दिनांक 10-10-2013 को समय करीब 4:00 बजे शाम व स्थान उपरोक्त पर आपने वादी मोहित सिंह की बहन प्रियंका को शदो से सात साल के अन्दर दहेज सम्बन्धी मांग, जिसे पूरा न करने पर उत्पीड़न करते हुए फांसी लगाकर सामान्य से अन्यथा परिस्थितियों में हत्या कारित की एतद् द्वारा आपने भा०दं० सं० की धारा-304बी के अन्तर्गत दंडनीय अपराध कारित किया है, जो इस न्यायालय के प्रसंज्ञान में है।
वैकल्पिक आरोप
यह कि उपरोक्त दिनांक, समय व स्थान पर आपने वादी मोहित सिंह की बहन प्रियंका की फांसी लगाकर हत्या कारित की। एतद् द्वाच आपने भा०दं०सं० की धारा-302 के अन्तर्गत दंडनीय अपराध कारित किया है, जो इस न्यायालय के प्रसंज्ञान में है।
तृतीयः यह कि, शादी की दिनांक 23-02-2011 से घटना की दिनांक 10-10-2013 तक भिन्न-भिन्न समय पर, स्थान उपरोक्त पर आपने वादी मोहित सिंह की बहन प्रियंका से दहेज में एक लाख रूपया नकद व मोटर साईकिल की मांग की एवं उक्त हेतु उत्पीड़न किया। एतद् द्वारा आपने धारा 3/4 दहेज प्रतिषेध अधिनियम के अन्तर्गत दंडनीय अपराध कारित किया है, जो इस न्यायालय के प्रसंज्ञान में है।
एतद् द्वारा आपको निर्देशित किया जाता है कि उक्त आरोपों हेतु आपका विचारण इस न्यायालय द्वारा किया जायेगा।"
9. Thus, the first charge framed was of cruelty against demand of dowry and death caused as a result of such demand of dowry. By way of an alternative charge, the appellant was charged for offence under Section 302 I.P.C.
10. At the trial, besides the above documentary evidence, prosecution produced four fact witnesses, namely, Mohit Singh (P.W.-1 at the trial) first informant, Smt. Mithlesh-mother of the deceased (P.W.-2 at the trial), Kalu Ram-father of the deceased (P.W.-3 at the trial) and Sonia-sister of the deceased (P.W.-4 at the trial). Through their testimony, the prosecution set out to establish the demand of additional dowry, leading to death caused by the appellant, for reason of non-satisfaction of that demand of additional dowry. At the stage of evidence, during his examination-in-chief Mohit Singh (P.W.-1) proved the Written Report submitted by him and the FIR registered against the appellant. He admitted his presence at the time of the 'Panchayatnama' being prepared.
11. However, during his examination-in-chief, he did not support the prosecution story of demand of additional dowry and resulting cruelty. He also did not lead any evidence to establish, either the place of occurrence or the manner of occurrence or the cause of death. He specifically denied that the deceased had ever told him of any earlier physical assault committed on her or of demand of additional dowry Rs.1,00,000/- in cash and a motorcycle, made. At that stage, that witness was declared hostile.
12. On being cross-examined by the prosecution, he claimed ignorance as to the demand of additional dowry. No effort was made by the prosecution to establish the place of occurrence or the manner of the occurrence. The statement of the said witness recorded under Section 161 Cr.P.C. was read out to him. He denied having made such statement. Upon being further, cross-examined by the defence, he further admitted, his other sister-Sonia, was married to a brother of the appellant. He stated that the deceased was suffering from illness. For that reason, she was depressed and died by suicide. He also could not prove, who informed him about the occurrence. He stated that his other sister Sonia never informed him of demand of additional dowry, etc. On being further questioned by the Court, he denied that any dowry was paid in the marriage of the deceased. He denied that the deceased had ever informed him about any harassment suffered by her with respect to demand of additional dowry. He denied any vehicle having been given to the appellant in dowry, at his marriage.
13. Smt. Mithlesh (P.W.-2) also did not support the prosecution story. During her examination-in-chief, she denied demand of any additional dowry. She denied that the appellant had ever assaulted the deceased for reason of demand of additional dowry, not paid. Upon receiving information of the occurrence, she reached the house of the appellant, where she found the dead body of the deceased lying in the verandah. She further denied that the appellant had ever harassed the deceased or assaulted her with respect to demand of additional dowry etc. At that stage, the said witness was also declared hostile.
14. During her cross-examination by the prosecution, she specifically admitted that her other daughter, namely, Sonia alias Soni was married to Vipin, a brother of the present appellant. In that context, she further stated that Sonia (P.W.-4 at the trial) never complained to her with respect to demand of additional dowry made by the appellant or his family members. On being confronted with her statement recorded under Section 161 Cr.P.C., she denied the same.
15. Further, during her cross-examination, she specifically stated that her daughter Sonia (P.W.-4) was married to the elder brother of the appellant, namely, Vipin. Her further examination by the court, did not yield any fruitful answer.
16. Next, Kalu Ram-father of the deceased, was examined as P.W.-3. As with Mithlesh (P.W.-2), he was also declared hostile during his examination-in-chief, itself. He also admitted that he was one of the five panch witnesses of the 'Panchayatnama'. Thus, he also admitted his presence soon after the occurrence. He specifically denied knowledge of how the occurrence may have been caused. Similarly, on being examined by the Court, he did not furnish any useful answer.
17. Thereafter, Sonia, the sister of the deceased and the wife of the elder brother of the present appellant namely, Vipin, was examined as P.W.-4. Besides not supporting the prosecution story to any extent, she also stated that she along with her family members had common living with the appellant and other family members, in the same house. She also claimed her presence at the time of occurrence, inside her house. At that stage, she was declared hostile by the Court.
18. During her cross-examination by the prosecution, she confirmed that the occurrence took place at about 4.00 p.m. on 10.10.2013 and that not only she but the appellant and his brothers, namely, Vipin and Praveen had a common dwelling in the same house. She also claimed that there was no partition between the brothers. As to the actual occurrence, she claimed, she was watching television at about 4.00 p.m., on 10.10.2013, when the appellant informed that the deceased was not speaking. She was taken to the hospital. She died on way. During her examination by the Court, she also did not support the prosecution story.
19. Thereafter, Dr. Sushil Kumar was examined as P.W.-5. He proved the autopsy report. He denied the presence of any poisonous substance administered to the deceased, before the occurrence. He also denied the possibility of death caused by hanging.
20. Thereafter, Head Constable/Clerk Amar Pal Singh was examined as P.W.-6. He proved the registration of the FIR. Next, the then C.O. Shwetabh Pandey (P.W.-7) proved the initial investigation and preparation of the 'Panchayatnama' and also the site plan. Also, Nayab Tehsildar Bhupal Singh was examined as P.W.-8. He also proved the 'Panchayatnama' proceedings. Thereafter, Abdul Kadir (Circle Officer) was examined as P.W. -9 at the trial. He also proved certain steps of the investigation.
21. After completion of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. From a perusal of that statement, it transpires that no adverse circumstance was confronted to the appellant either with respect to the place of occurrence or manner of the occurrence or as to motive.
22. In such circumstances, learned court below has convicted the present appellant, as noted above.
23. Learned Senior Counsel submits that the learned court below has completely disbelieved the prosecution allegation of demand of additional dowry and of that motive as the cause of occurrence. As to the alternate charge framed under Section 302 I.P.C., on which the appellant has been convicted, it has been strenuously urged, the present is a case of circumstantial evidence, only. No eye witness account exists. The burden that lay on the prosecution to establish the chain of evidence that the occurrence was caused by the appellant, in the manner described by the prosecution, was never attempted to be proven. Neither any evidence was led by the prosecution to establish how the deceased died by smothering or that the death was caused at her residential quarter that did not allow access to any person other than the appellant nor it was established that no other person was present inside the house, when the occurrence had taken place. Therefore, in absence of such basic facts being proven by the prosecution it never became open to the prosecution to rely on the rebutable presumption under Section 106 of the Indian Evidence Act. Reliance has been placed on the decision in Nagendra Sah Vs. State of Bihar (2021) 10 SCC 725.
24. Further, it has been submitted, for the alternative charge framed under Section 302 I.P.C. to be proved, in a case based solely on circumstantial evidence, the prosecution story must fail as motive has not been proven. The only motive brought by the prosecution was demand of additional dowry. That was not proven. In any case, the learned court below has disbelieved that fact allegation made by the prosecution. In absence of any motive and weak circumstantial evidence brought, a wholly presumptuous order of conviction has been recorded by the learned court below.
25. Next, it has been argued, for whatever worth it may be, the prosecution evidence did not prove any adverse circumstance, to allow the prosecution, opportunity to apply Section 106 of the Indian Evidence Act. Before such provision may have been invoked, it was incumbent on the prosecution to confront the appellant with the adverse circumstances found proven at the trial on which strength the provision of Section 106 of the Indian Evidence Act may have been applied. Neither any adverse circumstance of motive, nor of the place of occurrence, nor of the manner of occurrence was proven or confronted to the appellant. Therefore, the appellant has been wholly and completely prejudiced at the trial, wherein the learned court below has drawn adverse inference against him. In that regard, reliance has been placed upon the judgment of the Supreme Court in Shivaji Chintappa Patil Vs. State of Maharashtra (2021) 5 SCC 626.
26. On the other hand, learned A.G.A. submitted that there is nothing to doubt the occurrence. The deceased was done to death by smothering. That fact was duly proven. Also, reading the evidence in its entirety, it has been contended, the occurrence took place inside the house of the appellant. Being his house, it was for the appellant to explain the manner in which the occurrence may have taken place, as may have created a reasonable doubt as to his involvement in that occurrence. To the extent, the appellant remained silent and did not offer any explanation, the learned court below has rightly convicted the appellant by applying Section 106 of the Indian Evidence Act.
27. Having heard learned counsel for the parties and having perused the record, the facts that cannot be disputed are that the deceased was married to the present appellant in the year 2012 and that the occurrence took place within two years of that marriage, while the deceased was living with the appellant, at her matrimonial home. It also cannot be doubted that the occurrence caused may not be suicidal but homicidal. In that regard, it was proven that the deceased died due to asphyxia caused by smothering and ante mortem injuries were suffered by her. The statement of the doctor confirmed the observations noted on the autopsy report.
28. Such facts necessarily disclose a heinous occurrence that required careful examination as may have resulted in a meaningful trial. At the stage of investigation, the Investigating Officer appears to have pursued the theory of dowry death. It does not appear that any effort was made to prove possibility of a murder simplicitor. At the trial, four witness of fact were examined by the prosecution, namely, Mohit Singh (P.W.-1), Smt. Mithlesh (P.W.-2), Kalu Ram (P.W.-3) and Sonia (P.W.-4), all near relatives of the deceased-being brother, parents and married sister of the deceased. It is also noteworthy that Sonia (P.W.-4) was admittedly married to the elder brother of the appellant, namely, Vipin. None of those witnesses supported the prosecution allegation of demand of additional dowry. They made statements to the contrary, during their examination-in-chief, itself. None supported the allegation of physical assault or cruelty practised on the deceased by the appellant or any of his family members. At that stage, they were declared hostile.
29. Neither of the said four witnesses (declared hostile) were cross-examined by the prosecution and/or defence nor during cross-examination by the trial court, any question was put to them, as to the manner of the occurrence or the place of occurrence. Thus, it was not established at the trial that the death due to smothering was suffered by the deceased inside her matrimonial house, while the appellant was present there.
30. Second, Sonia (P.W.-4) also suggested that she along with her husband Vipin and another brother of the appellant had a common dwelling. Though, declared hostile, she was not questioned as to the correctness of that statement made by her during her examination-in-chief. Also, the prosecution led no other evidence to establish that the deceased used to live with the appellant and their new born child, separate from his two brothers and their family members.
31. Further, absolutely no evidence was led to establish any motive on part of the appellant to cause the murder of the deceased. The prosecution efforts in that regard do not exist.
32. Insofar as the provision of Section 106 of the Indian Evidence Act is concerned, in Shambu Nath Mehra Vs. State of Ajmer AIR 1956 SC 404, as also considered in Nagendra Sah (supra), the Supreme Court had the occasion to interpret the said provision and examine its applicability. In that regard, it was observed as below:-
"10. Section 106 is an exception to section 101.Section 101 lays down the general rule about the burden of proof.
'101. Burden of proof-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist'.
Illustration (a) says-"
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime".
11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R.
12. Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in 3 (1956) SCR page 199 a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.
13. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."
33. In the present case as noted above, it cannot be said that the prosecution proved that the deceased was living with the appellant separately, in any house or its part as may indicate a clear possibility-that the deceased (and the appellant) was residing separately from her other sister and her husband. Therefore, the first requirement to invoke Section 106 of the Indian Evidence Act was not established, beyond reasonable doubt. In fact, it was proven that besides the deceased and the appellant, others were also living in the same house. Also, at the time of the occurrence, sister of the deceased was also present in that house, watching television. The occurrence being of day time, and it not proven by any direct evidence that the appellant alone was present inside the house, at that time, the stage to apply Section 106 of the Indian Evidence Act, was not reached.
34. Second, the prosecution failed to establish that the occurrence took place inside any dwelling house less so a dwelling house where the appellant alone may have had access.
35. In view of such facts, reasonable doubts exist, if the occurrence was caused by the appellant, as claimed. No corroborative recovery exists to prove such fact. Thus, it was wholly pre-mature to invoke provision of Section 106 Indian Evidence Act as the prosecution failed to prove the basic factual premise to apply that rule of evidence. As noted in the decision of the Supreme Court in Shambu Nath Mehra (supra) Section 106 Indian Evidence Act is not an exception to the general rule as to burden of proof. It is not intended to relieve the prosecution of its duty to prove its case beyond reasonable doubt. It is only a rule of expedience, designed to meet exceptional cases, where it may otherwise be impossible for the prosecution to prove a fact in the special knowledge of the accused. Before consequence of impossibility or grave hardship may be accepted or applied, it remains with the prosecution to establish-with hard evidence-that facts exist to apply that rule of evidence. Here, in absence of the premise to apply the rule being proven, it is not permissible for the prosecution to rush under the cover of Section 106 Indian Evidence Act to relieve itself of its responsibility or burden to prove its theory, beyond reasonable doubt.
36. In absence of proof of place of occurrence being established and in absence of proof that no other person but the appellant had access to such a place, we are of the clear opinion that the benefit of Section 106 of the Indian Evidence Act may not be available to the prosecution. That has been wrongly granted by the learned court below.
37. It is in this state of evidence, the statement of the accused arose under Section 313 Cr.P.C. Section 313 Cr.P.C. reads as below:
"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.
(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.]"
38. Section 313 Cr.P.C. contains a provision of law that in effect is pari materia to the pre-existing Section 342 of the Code of Criminal Procedure, 1898. In that context, in Tara Singh vs State, (1951) SCC OnLine SC 49, it was observed as under:
"38. The whole object of Section 342 is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned."
39. In Jai Dev v. State of Punjab, AIR 1963 SC 612, a three-judge bench of the Supreme Court elaborated on the test to be applied to determine if that provision of law had been fairly complied with. It was thus observed:
"21. ... The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire 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."
40. Then, in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, another three-judge bench of the Supreme Court observed as below:
"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 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."
41. Then, in Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was observed as below:
"5. The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence."
42. In Asraf Ali V. State of Assam (2008) 16 SCC 328, applying the same principle, to Section 313 Cr.P.C., the Supreme Court observed as below:
"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 a 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."
43. Next, in Alister Anthony Pareira vs State of Maharashtra, (2012) 2 SCC 648, then pre-existing law was noticed. Thereafter, it was observed as below:
"61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice."
44. That principle of law was again applied and followed by the Supreme Court in Maheshwar Tigga v. State of Jharkhand, AIR (2020) SC 4535.
45. In Raj Kumar v. State (NCT of Delhi), (2023) 17 SCC 95 : 2023 SCC OnLine SC 609, the Supreme Court summarized the law under Section 313 Cr.P.C., in the following words:
"22. The law consistently laid down by this Court can be summarised as under:
22.1. It is the duty of the trial court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction.
22.2. The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence.
22.3. The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused.
22.4. The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused.
22.5. If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident.
22.6. In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him.
22.7. In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under Section 313CrPC.
22.8. While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered."
46. More recently, in Naresh Kumar v. State of Delhi, (2024) SCC Online SC 1641, the issue of material prejudice caused for reason of non-examination/inadequate disclosure made under Section 313 Cr.P.C., was again considered. Though the principle in law laid down in Raj Kumar (supra) was taken note, it was specifically observed as below :
"21. We have already held that whether non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused. True that the onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination under Section 313, Cr. P.C., is on the convict concerned. We say so, because if an accused is ultimately acquitted, he could not have a case that he was prejudiced or miscarriage of justice had occurred owing to such non-questioning or inadequate questioning.
22. In the light of the above view of the matter, we are inclined to consider the further question whether the non-questioning on the aforesaid twin incriminating circumstances to the appellant during his examination under Section 313, Cr. P.C., had caused material prejudice to him. The decision of this Court in State of Punjab v. Swaran Singh8, constrain us to consider one another factor while considering the question of prejudice. In Swaran Singh's case (supra), this Court held that where the evidence of the witnesses is recorded in the presence of the accused who had the opportunity to cross examine them but did not cross examine them in respect of facts deposed, then, omission to put question to the accused regarding the evidence of such witnesses would not cause prejudice to such an accused and, therefore, could not be held as grounds vitiating the trial qua the convict concerned..."
47. Thus, it may be safely inferred, in the first place, it was a requirement of law to confront the accused with the adverse evidence received against him or the inculpatory circumstances proven by the prosecution, to give the accused an opportunity to offer his response thereto. That remains a necessary concomitant of a fair trial. It inhers a reflection/extension of the principle audi alteram partem, arising from due enforcement of rule of natural justice.
48. First, at the stage of framing of charge, the accused is confronted with the nature of occurrence attributed to him, to allow him fair opportunity to take a stand - whether guilty or not-guilty. Once such accused pleads not-guilty, the trial commences. The trial court receives evidence, to prove the charge framed against the accused, in his presence. It also allows the accused an opportunity to cross-examine the witnesses, appearing to prove various elements of the charge or the occurrence. Upon prosecution evidence being complete, the statement under Section 313 Cr.P.C. is required to be recorded by way of the next stage of compliance of the rule of natural justice, to confront the accused with the exact nature of adverse circumstances, found proven against him. Unless inculpatory facts are first confronted to the accused, the risk of prejudice being caused to the accused, at the stage of leading defence evidence, may arise. What prejudice may or may not arise, would depend on individual facts of each case.
49. We have perused the statement of the accused recorded under Section 313 Cr.P.C. Neither any element of adverse circumstance of place of occurrence nor the manner of occurrence nor to establish that the appellant alone was present inside his house with the deceased nor motive was confronted to the appellant. Therefore, no explanation could have been furnished by the appellant in that matter. The appellant was prejudiced as the learned court below has, thereafter, proceeded to hold him guilty for the offence under Section 302 I.P.C. Circumstances confronted to the appellant were related to the main charge under Section 304 I.P.C. Therefore, the appellant may not have been convicted under Section 302 I.P.C., for all reasons noted above. Once the main charge was found not proven, the appellant could not have been convicted, on the alternative charge, without evidence being first led and confronted to the appellant, on the charge. At present, in absence of substantive evidence to prove adverse/inculpatory circumstances including, to invoke Section 106 Indian Evidence Act, with reference to charge under Section 302 I.P.C., grave prejudice has been caused to the appellant for reason of non compliance of Section 313 Cr.P.C. In absence of substantial evidence existing, the defect cannot be cured at this stage, as well.
50. For the reasons noted above, we are of the clear opinion that the prosecution failed to establish that the occurrence was caused by the appellant, beyond reasonable doubt.
51. Consequently, this appeal succeeds and is allowed. The judgment and order of conviction dated 24.02.2020 passed by Sri Narendra Pal Singh Tomar (H.J.S.), learned Additional District & Sessions Judge, Court No.13, District Meerut in Sessions Trial No.853 of 2016 (State of U.P. Vs. Lalit Chauhan), arising out of Case Crime No.406 of 2013, under Section 302 I.P.C, P.S. Bhawanpur, District Meerut, is hereby set aside. The appellant is acquitted of the charge framed against him. The accused-appellant is in jail. Let him be released, forthwith, unless he is wanted in any other case, subject to compliance of Section 437-A Cr.P.C.
52. The trial Court record along with the copy of this judgment and order be transmitted to the court concerned, forthwith.
53. Let a copy of this judgment be sent to the Jail Authorities concerned and the court concerned for compliance.
54. In view of the aforesaid, the pending application(s), if any, of this appeal also stands disposed of.
Order Date:- 3.4.2025
Anurag/-
(Dr. Gautam Chowdhary, J.) (S.D. Singh, J.)
