Smt. Urvashi W/O Rajiv Yashroy vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 2995 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.




                                                                
                     CRIMINAL WRIT PETITION                   No. 166 OF 2016


    Smt. Urvashi w/o Rajiv Yashroy,
    aged about 47 years, Occ.: Service,




                                                               
    r/o Flat No. 301, B-Block,
    Darbari Apartment,
    Pagalkhana Chowk, Koradi Road,
    Nagpur.                                                         .... PETITIONER.




                                                 
                                 VERSUS
                                  
    The State of Maharashtra
                                 
    through P.S.O. P.S. Koradi,
    Nagpur.                                                          ....  RESPONDENT.
      


    Shri R.M. Daga Advocate for the Petitioner.
    Shri Chandurkar, APP, for the respondent.
   



                                           .....


                                             CORAM : S.B. SHUKRE, J.

DATED : 20.06.2016.

ORAL JUDGMENT :

Heard. Rule. Rule made returnable forthwith.

Heard finally by consent of parties.

2. This writ petition challenges the order dated

28.1.2016 passed by the learned Assistant Sessions Judge,

Nagpur, in S.T. No. 392 of 2013, thereby rejecting the objection

taken on behalf of the petitioner/accused in respect of some of

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the questions put to him under Section 313 of Criminal Procedure

Code.

3. Learned counsel for the petitioner submits that only

those questions can be put to an accused under Section 313 of

Criminal Procedure Code which relate to the circumstances

appearing in the prosecution evidence against the accused. If

there are incriminating circumstances appearing in the cross-

examination taken on behalf of the accused, the learned counsel

for the petitioner further submits, those circumstances would be

merely in the nature of admissions and, therefore, could not be

covered by the scope and ambit of Section 313 of Criminal

Procedure Code. For this submission, he places reliance upon the

case of Tara Singh v. The State - AIR (38) 1951 SC 441.

4. Learned APP submits that it is well settled that the

questions which relate to incriminating circumstances may be put

to the accused while recording his statement under Section 313

of Criminal Procedure Code. He, therefore, submits that in the

facts and circumstances of the case, appropriate order may be

passed.

5. On going through the questions, particularly Q.No.38

and further questions till Q.No. 45, I find that the material which

has appeared during the course of cross-examination of the

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concerned witnesses taken on behalf of the accused, had been

put to the accused so as to elicit his appropriate response to the

same. This material, it can be seen, has been considered as

constituting incriminating circumstances against the accused. It

is well settled law that only those circumstances which

incriminate the accused can be put to the accused so that he is

made aware of the same and is able to give appropriate

response. It is the law laid down in Tara Singh's case, supra. The

question in this case would be, whether the material appearing in

the cross-examination of the prosecution witnesses taken by the

learned counsel for the accused could be considered as

something going against the accused and the answer, as rightly

submitted by the learned counsel for the applicant, would be a

firm "No". The reason being that such material though it goes

against the accused, is ultimately accepted by him to be so and,

therefore, would be out of bound of Section 313 of Criminal

Procedure Code. It would be not covered by the scope of this

section and, therefore, there is no need for the Court to bring to

the notice of the accused once again such a material. If the

accused consciously puts some questions which yield answers

revealing incriminating circumstances, same would be in the

nature of admitted facts from which the accused cannot keep

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distance. They may even be unexpected by the accused, being the

result of the cross-examination having gone haywire. Yet, he cannot

disown them they being of his own making. Such material cannot be

said as incriminating from the lens of Section 313 Criminal Procedure

Code. Purpose of this section is to enable the accused to explain

personally the circumstances appearing in evidence against him and

not to resile from his own admissions. The objection, therefore, taken

in this regard on behalf of the accused/petitioner ought to have been

allowed. But, the learned Judge ignoring the well settled principles of

law has rejected the same wrongly by going against the spirit of

Section 313 of Criminal Procedure Code. The impugned order

deserves to be quashed and set aside.

6. In the result, writ petition is allowed. The objection taken

by the learned counsel for the petitioner/accused in respect of

Question Nos. 38 to 45 is upheld and these questions stand deleted

from the statement of the petitioner/accused recorded under Section

313 of Criminal Procedure Code. The trial shall proceed in accordance

with law.

Rule is made absolute in these terms. No costs.

JUDGE

/TA/