Allahabad High Court
Boby vs State Of U.P. on 20 March, 2025
Bench: Saumitra Dayal Singh, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:40820-DB
Court No. - 45
Case :- CRIMINAL APPEAL No. - 2891 of 2019
Appellant :- Boby
Respondent :- State of U.P.
Counsel for Appellant :- Ashok Kumar Singh Bais,Saurabh Yadav,Shantanu
Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Dr. Gautam Chowdhary,J.
1. Heard Sri Saurabh Yadav along with Sri Shantanu, learned counsel for the appellant, Sri Patanjali Mishra, learned A.G.A.-I for the State and perused the records.
2. The present criminal appeal has been arisen from judgment and order dated 07.03.2019 passed by Sri Gyan Prakash-III, Additional Sessions Judge, Court No.4, Saharanpur in Sessions Trial No.184 of 2018 (State Vs. Boby and others), under Section 302 IPC, arising out of Case Crime No.434 of 2017, P.S. Rampur Maniharan, District Saharanpur, convicting the accused appellant and sentencing him to undergo life imprisonment for the 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 one year. By that order, other than the appellant Boby, three accused persons namely Rajnish, Kuldeep and Kanwarpal were acquitted. However, the appellant Boby has been convicted and sentenced by the learned trial court, as above.
3. The prosecution story emerged on the FIR dated 13.10.2017 lodged in Case Crime No.434 of 2017 at Police Station Rampur Maniharan, District Saharanpur reporting an occurrence took place on 11.10.2017 at about 4:00 A.M. inside the dwelling house of the appellant, wherein he is described to have killed his wife Ruchi, by throttling. The FIR narrates that the occurrence was caused within 14 months of the marriage of the parties, for reason of additional dowry, not paid. The FIR is Ex. Ka-4 at the trial. It arose on the Written Report dated 13.10.2017 lodged by Shobharam, the first informant (P.W.-1 at the trial). That Written Report is Ex. Ka-1. Before the FIR lodged by the first informant, the inquest/'Panchayatnama' was drawn on 11.10.2017, wherein both-the appellant and Shobharam (P.W.-1), are 'Panch' witnesses. That 'Panchayatnama' is Ex.Ka-11 at the trial. Thereafter, the autopsy was conducted and the report thereof was prepared by Dr. Bhojraj Singh, (P.W.-8 at the trial). That autopsy report dated 11.10.2017 is Ex. Ka-10 at the trial. It records the ante mortem injuries as below:
"1. Red contusion 5.0 X 1.0 cm on right side neck, mid part
2. Multiple red abrasion are of 8.0 X 5.0 cms on left side neck, mid and lower part.
Both injuries are separated by a gap of 5.0 cms in front of neck and 14.0 cms behind neck."
4. As to the cause of death, it records asphyxia caused by ante-mortem throttling.
5. Upon completion of the investigation, charge-sheet was submitted by the Investigating Officer, Bhavendra Singh Nagar (P.W.-11 at the trial).
6. Upon the case being committed to the Court of Sessions, charges were framed against the appellant on 13.04.2018. In that, the main charge framed was offence under Section 498-A, 304-B and also section ¾ of Dowry Prohibition Act. By way of an alternative charge, the appellant was charged for offence under Section 302 read with Section 34 I.P.C. (along with other accused persons). For ready reference, the charges framed read as below:
"मैं, सुरेशचन्द्र भारती अपर सत्र न्यायाधीश कक्ष संख्या-4 सहारनपुर आप अभियुक्त बोबी, कंवरपाल, रजनीश और कलदीप को निम्न आरोपों से आरोपित करता हूँः-
प्रथमतः यह कि मुकदमा वादी शोभाराम की पुत्री रूचि का विवाह आप में से बोबी पुत्र कंवरपाल के साथ दिनांक 15-07-2016 को हुआ था। विवाह के बाद से आप सभी दिये गये दान दहेज से सन्तुष्ट नहीं थे और पीड़िता रूचि को दहेज में पैसे न लाने के लिए मारपीट किया ओर उसके द्वारा असमर्थता जाहिर करने पर आपने मिलकर उसे तंग व परेशान करके शारीरिक व मानसिक रूप से प्रताडित किया। इसप्रकार आपने ऐसा कृत्य किया जो धारा 498ए भा०दं०सं० के अन्तर्गत दण्डनीय अपराध है एवम मेरे प्रसंज्ञान में है।
द्वितीयतः यह कि दिनांक 11-10-2017 को समय सुबह 4 बजे से पूर्व स्थान अपने घर स्थित खानपुर थाना रामपुर मनिहारान जिला वर्धमान जिला सहारनपुर में आपने मिलकर वादी शोभाराम की पुत्री रूचि को कम दहेज लाने के लिए शारीरिक व मानसिक रूप से प्रताड़ित करते हुए उसके साथ मारपीट की तथा उसका गला दबाकर मृत्यु की। इसप्रकार आपने हत्या करके हत्या की कोटि में न आने वाले मानव वध का अपराध कर ऐसा कृत्य किया जो धारा 304 बी भा०दं०सं के अन्तर्गत दण्डनीय अपराध है एवम मेरे प्रसंज्ञान में है।
तृतीयतः यह कि उपरोक्त दिनांक समय व स्थान पर आप सब अभियुक्तगण ने मिलकर वादी शोभाराम की पुत्री रूचि से दहेज की मांग की तथा उसपर उक्त माँग के लिए दबाव बनाया क्रूरता कारित की इसप्रकार आपने ऐसा अपराध कारित किया जो धारा 3/4 दहेज प्रतिषेध अधिनियम के अन्तर्गत दण्डनीय अपराध है एवम इस न्यायालय के प्रसंज्ञान में है।
विकल्प में
यह कि दिनांक 11-10-2017 को आपने उपरोक्त दिनांक समय व स्थान पर आपने मिलकर वादी शोभाराम की पुत्री मृतका रूचि को कम दहेज लाने के लिय प्रताडित करते हुए उसके साथ मारपीट की तथा गला दबाया जिससे उसकी मृत्यु हो गयी। आपके द्वारा किया गया कार्य हत्या की श्रेणी में आता है। इसप्रकार आपने ऐसा अपराध कारित किया जो धारा 302/34 बी भा०दं०सं के अन्तर्गत दण्डनीय अपराध है एवम मेरे प्रसंज्ञान में है।
एतद्द्वारा आपको निर्देश दिया जाता है कि उक्त आरोप हेतु आपका विचारण इस न्यायालय द्वारा किया जायेगा।"
7. At the trial, besides the above documentary evidence, oral evidence of Shobharam, the father of the deceased and the first informant was recorded. He was examined as P.W.-1. During his examination-in-chief, he supported the prosecution story of demand of dowry at the time of marriage and also of additional demand of dowry. He deposed, that for reason of non-fulfilment of demand for additional dowry, the deceased was assaulted by the appellant and his near relatives. Also, other allegations were made against the appellant of attempted trafficking. Later, during his cross-examination on 28.06.2018, he denied existence of any matrimonial discord or demand of dowry etc. At that stage, he was declared hostile.
8. Next, Nirmala, wife of Shobharam (P.W.-1) i.e. the mother of the deceased was examined as P.W.-2. She was declared hostile during her examination-in-chief. Thus, she did not support the prosecution story, to any extent.
9. Shyam Singh, A relative of Shobharam (P.W.-1) was examined as P.W.-3. He also did not support the prosecution story during his examination-in-chief. Consequently, he was declared hostile, at that stage.
10. Similarly, next witness Karam Singh who had accompanied Shobharam (P.W.-1) at the time of the occurrence, was examined as P.W.-4. He confirmed, he had accompanied Shobharam at the time of occurrence. That 'Panchayatnama' was prepared in his presence and that the post-mortem had become necessary, to ascertain the cause of death.
11. Thereafter, constable Rahul Chauhan was examined as P.W.-5, to establish the registration of the FIR.
12. Thereafter, Laado was examined as P.W.-6. Ghasitu was examined as P.W.-7. Also, Manoj was examined as P.W.-10. Those witnesses did not support the prosecution story to any extent, during their examination-in-chief. They were declared hostile, at that stage, itself.
13. Next, Dr. Bhoj Raj Singh was examined as P.W.-8. He proved the autopsy report and the cause of death as asphyxia caused by ante-mortem throttling. Then, Bhopal Singh, the Naib Tehsildar was examined as P.W.-9. He proved the preparation of the 'Panchayatnama' etc.
14. Also, Manoj was examined as P.W.-10. He did not support the prosecution story to any extent during his examination-in-chief. He was declared hostile, at that stage.
15. Then, Bhupendra Singh Nagar, the Investigating Officer was examined as P.W.-11. He proved the investigation. Nothing of relevance came out during his cross-examination.
16. Thereafter, the statement of the appellant was recorded under Section 313 Cr.P.C.
17. We have perused the statement at length. Not less than 15 questions were put to him, pertaining to adverse evidence received against the appellant. All circumstances and evidence confronted to the appellant-on which his response was called, are with respect to demand of dowry and dowry death, only. Apart from one reference contained in question no.2 with respect to an earlier occurrence (not specified with reference to date), of efforts made by the appellant to traffick the deceased, no other evidence or circumstance was confronted to the appellant as may have indicated to the appellant any evidence of any other adverse circumstance, received by the learned Court below, pertaining to the alternative charge of offence alleged under Section 302 I.P.C. Therefore, this much may be recorded here itself that at the stage of the statement recorded under Section 313 Cr.P.C., the appellant was only confronted with circumstances relatable to alleged offence under Section 304-B I.P.C.
18. Thereafter, the matter was heard and the learned court below has convicted the appellant for the offence as noted above, and sentenced, accordingly.
19. Submission of learned counsel for the appellant is, the occurrence was completely otherwise. No one saw the occurrence. Besides the adverse circumstance and the presumption arising under Section 106 of Evidence Act, the appellant has been convicted and sentenced for offence under Section 302 I.P.C., without that offence being duly proven.
20. In the alternative, it has been submitted, neither the learned court below ever indicated to the appellant at any stage of the proceeding that it was proceeding against the appellant on the alternative charge framed under Section 302 I.P.C. not it made due compliance of Section 313 Cr.P.C., with respect to that alternative charge.
21. Here, it has been emphasised, charge framed under Section 302 I.P.C. is a heavier charge involving heavier punishment. Unless, it had been first indicated to the appellant by the learned court below, either expressly or impliedly, that it was considering to proceed against the appellant under Section 302 I.P.C., and unless the appellant was first confronted with adverse circumstance in terms of Section 313 Cr.P.C., that violation of rule of natural justice, as enshrined in Section 313 Cr.P.C., and the consequent prejudice caused, may not allow the conviction order to be sustained. The appellant has been taken by surprise at the stage of conviction and consequently sentencing. The protection of the appellant's rights arising from Article 21 of the Constitution, that contemplates an absolute right to fair trial has been violated for no fault. That has rendered a fundamental flaw in the trial and its outcome.
22. On the other hand, learned A.G.A. would submit, wholesome evidence was led by the prosecution that the occurrence was caused by the appellant inside the dwelling house of the appellant, wherein the deceased had been throttled to death within 14 months of her marriage. He has also referred to the prosecution evidence that the present occurrence was proceeded by earlier occurrences of assault as also efforts made by the appellant to traffick the deceased. Merely because, no specific question may have been put to the appellant under Section 313 Cr.P.C. with respect to the alternative charge of offence under Section 302 I.P.C., in face of proven facts, that the occurrence was caused inside the dwelling house of the appellant and the appellant was present at that time and further in the absence of any explanation given by the defence as to how else the occurrence may have been caused, the objection being raised on the strength of Section 313 Cr.P.C. is of no avail.
23. Having heard learned counsel for the parties and having perused the record, we find that there exists basic essential truth in the prosecution story, as narrated at the stage of the FIR itself. In that it is admitted to the appellant that he was married to the deceased about 14 months prior to the occurrence and that the occurrence was caused inside the dwelling house of the appellant. Further, it is undisputed to the appellant that the deceased died by throttling. In such facts proven, the presumption under Section 106 Evidence Act arose. It remained unrebutted by the appellant inasmuch as no credible evidence was led by the defence to disable or rebut or dilute that statutory presumption. That circumstance is wholly adverse to the appellant. The defence could not prove that the appellant was not present at his house on the date and time of the occurrence.
24. Besides, the statutory presumption, the prosecution successfully established that the occurrence was not suicidal but homicidal. Dr. Bhojraj Singh (P.W.-8) clearly proved during in his deposition that the deceased had been throttled to death.
25. Thus, as to the basic occurrence attributed to the present appellant, there is no doubt. We accept the prosecution story to that extent i.e. the deceased was done to death by the present appellant.
26. Then, as to the offence, it is not disputed to the prosecution that the main offence for which the appellant was charged and tried, was one under Section 304-B I.P.C. read with Section 498-A I.P.C. and Section ¾ D.P. Act. Only in the alternative, another charge was framed against the appellant, under Section 302/34 I.P.C.
27. In face of such admitted position on record, we find that the prosecution examined eight witnesses of fact. That list of witnesses included both parents of the deceased. All turned hostile. At the same time, Sobharam (P.W.-1), the father of the deceased supported the prosecution story, in full, during his examination-in-chief. Thus, he stated that the appellant and his family members were not happy or content with the dowry given by the said witness (to them), at the marriage of the deceased. He also supported the prosecution story of cruelty and harassment caused to the deceased for that reason, in the past. He also deposed that the appellant and his family members used to physically assault the deceased, to press their demand of dowry. He further deposed that the matter was tried to be resolved through many 'panchayat' held in past.
28. Having made such statements, when subjected to cross-examination after about a month, he did not support the prosecution story regarding demand of additional dowry. At that stage the said witness was declared hostile. Thereafter, the said witness was cross-examined by the prosecution. In that, he maintained that he had been told by his family members about the demand of dowry. He also proved that the FIR was lodged by him, of his own free will. Thus the FIR narration of additional dowry corroborated the statement of P.W.-1, to that extent his deposition made during his examination-in-chief that there existed demand of additional dowry, remained corroborated and in any case, credible.
29. P.W.-2 was declared hostile during her examination-in-chief itself. At the same time, before that stage arose, she did made a specific statement that dowry was given in the marriage of the deceased. She only denied knowledge of demand of additional dowry by stating that her daughter-the deceased, had not told her of such occurrence. For reason of her not supporting the further allegation made, she was declared hostile. Thus, the mother of the deceased, namely, Nirmala (P.W.-2) did not deny the demand of additional dowry made by the appellant, rather, she denied knowledge of such fact being shared with her, by the deceased. At the same time, she proved that dowry had been given at the marriage of the deceased. P.W.-3, P.W.-5, P.W.-6 and P.W.-7 did not support the prosecution story, at all.
30. In Sat Paul Vs. Delhi Administration, (1976) 1 SCC 727, the Supreme Court noted with approval the earlier decision of the Calcutta High Court in Praphulla Kumar Sarkar Vs. Emperor, AIR 1931 Cal 401 and thereafter opined that the testimony of a hostile witness need not be thrown out in entirety merely for reason of the witness being declared hostile. In that, it was observed as below :
"46. After answering in the negative, the three questions viz. whether the evidence of a witness treated as "hostile" must be rejected in whole or in part, whether it must be rejected so far it is in favour of the party calling the witness, whether it must be rejected so far as it is in favour of the opposite party, the learned Chief Justice proceeded:
"... the whole of the evidence so far as it effects both parties favourably or unfavourably must go to the jury for what it is worth.
* * *
If the previous statement is the deposition before the committing Magistrate and if it is put in under Section 288 of the Criminal Procedure Code, so as to become evidence for all purposes, the jury may in effect be directed to choose between the two statements because both statements are evidence of the facts stated therein. But in other cases the jury may not be so directed, because prima facie the previous statement of the witness is not evidence at all against the accused of the truth of the fact stated therein. The proper direction to the jury is that before relying on the evidence given by the witness at the trial the jury should take into consideration the fact that he made the previous statement, but they must not treat the previous statement as being any evidence at all against the prisoner of the facts therein alleged.
* * *
In a criminal case, however, the previous unsworn statement of a witness for the prosecution is not evidence against the accused of the truth of the facts stated therein save in very special circumstances, e.g., as corroboration under Section 157 of his testimony in the witness-box on the conditions therein laid down. If the case be put of the previous statement having been made in the presence and hearing of the accused, this fact might under Section 8 alter the position; but the true view even then is not that the statement is evidence of the truth of what it contains, but that if the jury think that the conduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may consider that acceptance as an admission (King v. Norton [(1910) 2 KB 496] , Percy William v. Adams [(1923) 17 Crim App Rep 77] ). But apart from such special cases, which attract special principles, the unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts."
31. Later, in Bhajju @ Karan Singh Vs. State of Madhya Pradesh, (2012) 4 SCC 327, as to the procedure to be followed before any part of the deposition made by a hostile witness, may be relied and the manner and extent to which the deposition made by either witness may be relied, it was observed as below :
"35. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant-accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.
36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled canon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the following cases:
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat [(1999) 8 SCC 624 : 2000 SCC (Cri) 13],
(b) Prithi v. State of Haryana [(2010) 8 SCC 536 : (2010) 3 SCC (Cri) 960] ,
(c) Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] and
(d) Ramkrushna v. State of Maharashtra [(2007) 13 SCC 525 : (2009) 2 SCC (Cri) 427] ."
32. Also, in Attar Singh Vs. State of Maharashtra, (2013) 11 SCC 719, the manner and extent to which the deposition made by a hostile witness may be relied was further considered. In that context, it was observed as below :
"14. This compels us to consider as to whether the conviction and sentence recorded on the basis of the testimony of the witness who has been declared hostile could be relied upon for recording conviction of the appellant-accused. But it was difficult to overlook the relevance and value of the evidence of even a hostile witness while considering as to what extent their evidence could be allowed to be relied upon and used by the prosecution. It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in toto as it is well settled by a catena of decisions that the court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable.
16. Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused."
33. From the above, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto. Here, we find, the FIR clearly contained the narration of demand of additional dowry as the motive for the occurrence. That fact was proved by P.W.-1 during his examination-in-chief. Though declared hostile, the said witness maintained during his cross-examination that he had lodged the FIR, of his own and not otherwise. P.W.-2 did not deny demand of additional dowry. She only denied knowledge of that fact. To that extent, we find the prosecution evidence as to motive to cause the occurrence, was sufficiently proven beyond reasonable doubt.
34. 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.]"
35. 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."
36. 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."
37. 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."
38. 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."
39. 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."
40. 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."
41. That principle of law was again applied and followed by the Supreme Court in Maheshwar Tigga v. State of Jharkhand, AIR (2020) SC 4535.
42. 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."
43. 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..."
44. 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.
45. 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.
46. We have perused the statement of the appellant, recorded under Section 313 Cr.P.C. In that 15 questions were put to him, calling for his response to the adverse evidenciary circumstances recorded against him. In that, beginning from question no.1 continuing in question nos.2, 3 and 4, the adverse evidenciary circumstance appearing by way of questions (to elicit an explanation from the accused), were only with reference to the allegation of demand of dowry as the only reason to cause the occurrence. Thus, it was disclosed to the appellant, that upon receiving the entire prosecution evidence, the evidenciary circumstance considered adverse to the appellant was that he had caused the occurrence for reason of additional dowry, not paid.
47. Thus, the purpose for which the statement of the appellant was recorded under Section 313 Cr.P.C. was confined to that adverse circumstance, only. At no stage of that statement being recorded, the accused was ever confronted or informed that any adverse circumstance had been noted in the prosecution evidence, to hold him guilty of the much heavier offence of murder under Section 302 I.P.C.
48. Once, the court had framed charges wherein the main charge framed was under Section 304-B I.P.C. read with Section 498-A I.P.C., read with Section ¾ D.P. Act and the charge of offence under Section 302 I.P.C. was framed by way of an alternative charge, in the first place, by confining its query to the main charge only, the learned court below clearly indicated to the accused-appellant, it was proceeding against him for offence under Section 498-A I.P.C. read with Section 304-B I.P.C. read with Section ¾ D.P. Act only, and not for offence under Section 302 I.P.C.
49. Second, as noted above, the fact evidence led by the prosecution though largely hostile, at the same time, reading the deposition of P.W.-1 to the extent that statement may be consistent and favourable to both sides, those witnesses sought to establish the unfulfilled demand of dowry, as the only motive for the occurrence. In fact, P.W.-1 maintained that the additional demand of dowry was made after the marriage and also cruelty was suffered by the deceased, for reason of that additional demand of dowry not-fulfilled.
50. Third, most critically, it cannot escape the attention of the court that after receipt of such evidence, the appellant was not confronted to explain any evidence (of adverse circumstance), received against him, as may link him to the occurrence referable to offence under Section 302 I.P.C. As noted above the adverse circumstance thus disclosed was confined to and directed at the offence under Section 304-B I.P.C. read with Section 498-A I.P.C. and Section ¾ D.P. Act.
51. In view of the law noted above, we find that a serious prejudice was caused to the appellant to the extent the principle of natural justice enshrined under Section 313 Cr.P.C. was not observed at the trial. Both at the stage of framing of charge and also before granting the defence, opportunity to lead its evidence, it should have been disclosed to the accused person, the exact evidence (of adverse circumstance) noted against him-to allow him a fair opportunity to meet it by way of defence evidence. Here, by not disclosing that adverse circumstance, the accused appellant was prejudiced and denied the opportunity to lead any evidence in defence, with respect to offence alleged under Section 302 I.P.C. To this extent, facts admit of no doubt or other opinion, in law.
52. Accordingly, the appeal is partly allowed.
53. The appellant is found guilty of the main charge alleged-under Section 304-B I.P.C. read with Section 498-A I.P.C. read with Section ¾ D.P. Act. As to the sentence awarded, the punishment is modified to sentence for ten years. However, fine awarded by the trial court is maintained, as it is.
54. The appellant is in jail. He may be released upon completing his sentence in case he is not wanted in any other case and compliance of Section 437-A Cr.P.C.
55. The appellant shall deposit the fine within a month from the date of his release.
Order Date:- 20.3.2025
Anurag/-
(Dr. Gautam Chowdhary, J.) (S.D. Singh, J.)
