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REPORTABLE

IN THE SUPRENE COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.784     OF     2008   

BALAJI GUNTHU DHULE ...APPELLANT

VERSUS

STATE OF MAHARASHTRA     ...RESPONDENT

O     R     D     E     R   

1). This appeal by special leave is directed  

against the judgment and order passed by the High  

Court of Judicature at Bombay, Bench at Aurangabad  

in Criminal Appeal No.108 of 2004 dated 19.10.2005.

2). The appellant, before us is convicted under  

Section 302 read with Section 34 of the Indian  

Penal Code, 1860 (“IPC” for short) and sentenced to  

imprisonment for life, by the Trial Court, on the  

allegation that he has caused the death of one  

Ranga Rao in a quarrel which ensued between Ranga  

Rao and one Smt. Shantabai (other accused who  

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expired during the trial). The Prosecution, in  

support of its case, had examined several  

witnesses, including six eye—witnesses— P.Ws. 4, 5,  

6, 7, 8 and 10. The Trial Court, taking into  

consideration the evidence of P.Ws. 4, 5, 7, 8 and  

10, has convicted and sentenced the appellant and  

two others, as mentioned earlier. Aggrieved by the  

said judgment and order passed by the Trial Court,  

the appellant and two others were before the High  

Court in an appeal filed under Section 374(2) of  

the Code of Criminal Procedure,1973 (“the Code” for  

short).

3). The High Court, after re-appreciation of the  

evidence on record, has acquitted the two other  

accused, but has convicted the appellant only for  

an offence under Section 302 of the I.P.C. It is  

the correctness or otherwise of the said order  

which is called in question by the appellant before  

us.

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4). We have heard learned counsel for the parties  

to the lis.

5). Learned counsel appearing for the appellant has  

taken us through the judgment and order passed by  

the High Court. We gather on perusal of the  

judgment that the High Court after detailed  

consideration of the evidence of P.Ws. 4, 5, 7 and  

8 has rejected the same for the reasons assigned in  

the judgment.  However, it has confirmed the order  

of the Trial Court primarily based on the evidence  

of PW-10, that too by drawing a distinction based  

on the analysis of the question: “whether P.W.10  

was present at the time of the incident or at least  

after the incident.”  The High Court comes to the  

conclusion and records that since P.W.10 had taken  

the deceased to the hospital, he could have been  

present at least after the incident.

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6). To come to a conclusion that P.W.10 was present  

at the time of the incident, strangely, in our  

opinion, the High Court has relied upon the  

statement made by the accused-appellant under  

Section 313 of the Code. In our opinion, first and  

foremost, as the law stands today, the statement of  

the accused recorded under Section 313 of the Code  

cannot be put against the accused person. The  

courts may rely on a portion of the statement of  

the accused and find him guilty in consideration of  

the other evidence against him led by the  

prosecution.  The statement made under this Section  

should not be considered in isolation but in  

conjunction with evidence adduced by the  

prosecution.

7). This Court in Manu Sao v. State of Bihar,  

(2010) 12 SCC 310, has examined the vital features  

of Section 313 of the Code and the principles of  

law as enunciated by judgments, analysing the  

guiding factors for proper application and  

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consequences that shall flow from the said  

provision and has observed :

“14. The statement of the accused can be used  to test the veracity of the exculpatory nature  of the admission, if any, made by the accused.  It can be taken into consideration in any  enquiry or trial but still it is not strictly  evidence in the case. The provisions of  Section 313(4) explicitly provides that the  answers given by the accused may be taken into  consideration in such enquiry or trial and put  in evidence against the accused in any other  enquiry or trial for any other offence for  which such answers may tend to show he has  committed. In other words, the use is  permissible as per the provisions of the Code  but has its own limitations. The courts may  rely on a portion of the statement of the  accused and find him guilty in consideration  of the other evidence against him led by the  prosecution, however, such statements made  under this section should not be considered in  isolation but in conjunction with evidence  adduced by the prosecution.  

15.  Another important caution that courts  have declared in the pronouncements is that  conviction of the accused cannot be based  merely on the statement made under Section 313  of the Code as it cannot be regarded as a  substantive piece of evidence. In Vijendrajit  Ayodhya Prasad Goel v. State of Bombay (AIR)  1953 SC 247, the Court held as under: (AIR p.  248, para 3)

“3. ... As the appellant admitted that  he was in charge of the godown,  

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further evidence was not led on the  point. The Magistrate was in this  situation fully justified in referring  to the statement of the accused under  Section 342 as supporting the  prosecution case concerning the  possession of the godown. The  contention that the Magistrate made  use of the inculpatory part of the  accused’s statement and excluded the  exculpatory part does not seem to be  correct. The statement under Section  342 did not consist of two portions,  part inculpatory and part exculpatory.  It concerned itself with two facts.  The accused admitted that he was in  charge of the godown, he denied that  the rectified spirit was found in that  godown. He alleged that the rectified  spirit was found outside it. This part  of his statement was proved untrue by  the prosecution evidence and had no  intimate connection with the statement  concerning the possession of the  godown.”    

16.  On similar lines reference can be made to  a quite recent judgment of this Court in Ajay  Singh v. State of Maharashtra, (2007) 12 SCC  341, where the Court held as under: (SCC p.  347, paras 11-13)  

“11. So far as the prosecution case  that kerosene was found on the  accused’s dress is concerned, it is  to be noted that no question in this  regard was put to the accused while  he was examined under Section 313 of  the Code.   

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12.  The purpose of Section 313 of  the Code is set out in its opening  words - `for the purpose of enabling  the accused personally to explain any  circumstances appearing in the  evidence against him’. In Hate Singh  Bhagat Singh v. State of Madhya  Bharat it has been laid down by Bose,  J. (AIR p. 469, para 8) that the  statements of the accused persons  recorded under Section 313 of the  Code ‘are among the most important  matters to be considered at the  trial’.  It was pointed out that:  (AIR p. 470, para 8)

‘8. ... The statements of the  accused recorded by the committing  Magistrate and the Sessions Judge  are intended in India to take the  place of what in England and in  America he would be free to state  in his own way in the witness box  [and that they] have to be  received in evidence and treated  as evidence and be duly considered  at the trial.’“     

This position remains unaltered even  after the insertion of Section 315 in  the Code and any statement under  Section 313 has to be considered in  the same way as if Section 315 is not  there.   

13. The object of examination under  this section is to give the accused  an opportunity to explain the case  made against him. This statement can  be taken into consideration in  

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judging his innocence or guilt. Where  there is an onus on the accused to  discharge, it depends on the facts  and circumstances of the case if such  statement discharges the onus.”   

17. The statement made by the accused is  capable of being used in the trial though to a  limited extent. But the law also places an  obligation upon the court to take into  consideration the stand of the accused in his  statement and consider the same objectively  and in its entirety. This principle of law has  been stated by this Court in Hate Singh Bhagat  Singh v. State of Madhya Bharat. (AIR) 1953 SC  468.”

8). Herein, the appellant in his statement under  

Section 313 of the Code admits that there was a  

quarrel between Shantabai (deceased accused) and  

P.W.1O and while rushing to the spot of quarrel the  

deceased involuntarily fell on a cement concrete  

platform - Otta and thereby suffered the fatal  

injury. The prosecution story was that a quarrel  

between the deceased and Shantabai in fact took  

place, however, the fatal injury was caused by a  

deliberate blow by the appellant on the deceased.  

In our opinion, there is absolute contradiction in  

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the statement made by the appellant in his  

statement under Section 313 of the Code and that  

statement could not have been put against the  

accused in concluding that P.W.1O was present at  

the place of incident at or immediately after the  

occurrence of the incident. Therefore, the said  

witness, in our opinion, cannot be considered as  

eye-witness to the incident as such.   

9). The High Court has also relied upon the  

postmortem report of the Doctor. In our opinion,  

since the entire evidence of the eye—witnesses has  

not been accepted by the High Court, it could not  

have merely relied upon the postmortem report to  

convict the appellant for an offence under Section  

302 of the I.P.C. Further, in our view, the  

postmortem report should be in corroboration with  

the evidence of eye—witnesses and cannot be an  

evidence sufficient to reach the conclusion for  

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convicting the appellant. In view of the above, we  

have no other alternative but to allow this appeal  

and set aside the judgment and order passed by the  

High Court convicting the appellant for an offence  

punishable under Section 302 of the I.P.C.

10. In the result, the appeal is allowed with a  

direction that the appellant-accused be released  

forthwith, if he is not required in any other  

offence/case.

Ordered accordingly.

........................J. (H.L. DATTU)

........................J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI, SEPTEMBER 19, 2012.  

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