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REPORTABLE  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2079 OF 2009

Liyakat and Another ….Appellants

Versus

State of Rajasthan         ….Respondent

JUDGMENT

M.Y. EQBAL, J.

This  appeal  by special  leave is  directed against  the  

judgment and order dated 4th February, 2009 passed by the  

High Court of Rajasthan at Jodhpur in D.B. Criminal Appeal  

No.304 of 2003 whereby the High Court partly allowed the  

appeal of the appellants and remanded the matter to the  

Trial Court for further trial.   

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2.   The facts of the case in brief are that on 25.07.1999 at  

2.00 P.M., one Mustaq Khan resident of Rajpura submitted a  

written typed report at Police Station Dudwakhara alleging  

inter alia that his two daughters Jumila and Bulkesh were  

married to two brothers Liyakat and Jakir of village Jhariya  

on 11.6.1993.  After marriage, his daughters told that their  

father-in-law  Ajeem  Khan  and  mother-in-law  Jannat  

harassed them for dowry, and therefore, as and when they  

used to come, the informant was giving necessary articles  

of dowry.  It was further alleged that some three years ago,  

when Liyakat had gone abroad, a demand of Rs.40,000/-  

was made and the informant arranged to give the money  

after  mortgaging  his  household  articles.   Still  daughters  

were treated with cruelty, inasmuch as, they were not even  

given food.  It is also alleged in his report that some two  

months  ago,  Liyakat,  (husband  of  deceased  daughter  

Jumila)  returned  back  from abroad  (Dubai)  and  raised  a  

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demand of she-buffalo,  which was conveyed by Jumila to  

the  effect  that  if  she-buffalo  is  not  given,  she would  be  

killed.  However, the informant could manage a cow and  

sent his daughter with a cow to her in-laws house.   Mr.  

Khan alleged in his report that on 23.7.1999, he received  

information that Jumila has died.  Thereupon, he along with  

his brother Sattar Khan went to Jhariya, by which time it  

was already night and it started raining as well.  The dead  

body of Jumila was already buried and the body was not  

shown to him.  It is alleged that his other daughter Bulkesh  

was unconscious at that time, and therefore, they brought  

her with them.   

3.  On  24.7.1999,  after  gaining  consciousness,  Bulkesh  

disclosed that the three accused persons have murdered  

Jumila by throttling, which she had seen and consequently  

become unconscious.  She also disclosed that the accused  

planned to kill her also but she does not know as to how  

she was not killed and that three persons gave beating and  

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killed Jumila on account of her having taken cow instead of  

buffalo.  On learning this, the informant Mustaq Khan along  

with his brother Sattar, Inayat Khan, Nawab Khan, Yakub  

Khan, Wahid Ali, Bhanwaru Khan and Kasam Khan went to  

Jhariya  and  narrated  the  things  disclosed  by  Bulkesh.  

Thereupon,  the  three  accused  confessed  their  guilt  that  

they had collectively killed Jumila, which was their mistake  

and they should be pardoned.   

4. On the basis of his report, FIR No.76/99 was registered  

for  offence  under  Sections  498-A,  304B  and  201  of  the  

Indian  Penal  Code,  (in  short,  ‘IPC’).   Postmortem of  the  

dead body was got conducted, site map and Halat Mauka  

was  prepared,  statements  of  witnesses  were  recorded,  

documents  were  seized,  accused  persons  were  arrested.  

After  the  investigation,  chargesheet  was  filed  against  

accused persons in the competent Court.  

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5. The trial court framed charges for the offences under  

Sections 302 or in the alternative 302/34 read with Section  

201 and 498A of the Indian Penal Code and the trial was  

commenced.   During  trial,  statements  of  some  five  

witnesses  were  recorded  upto  9.5.2000.   Thereafter,  

accused Liyakat could be arrested from Delhi Airport and  

fresh trial  was conducted by re-examining the witnesses,  

whose statements had already been recorded.   This fresh  

trial  commenced  on  9.10.2000,  wherein  the  prosecution  

examined 13 witnesses to prove the charges and several  

documents  including  written  report,  site  map,  memo  of  

dead  body,  Panchayatnama,  statement  of  Inayat  Khan,  

seizure memo, postmortem report etc. have been exhibited  

as evidence.   

6.  The statement of accused persons under Section 313  

of the Code of Criminal Procedure (in short, ‘Cr.P.C.’) were  

recorded,  wherein the accused persons have refuted the  

prosecution evidence. The accused Ajeem Khan (father-in-

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law of deceased Jumila) stated that his son Liyakat used to  

live in Dubai.  Liyakat’s wife used to tell him to take her to  

Dubai, but due to unavailability of accommodation there,  

he  showed  his  inability  to  take  her  with  him.  So  she  

committed suicide by hanging herself with the hook of fan  

with  the help  of  her  Chunni.  He sent  information  to  her  

paternal  house and her father and father’s  elder  brother  

came to village Jhariya along with mother and Bhabhi of the  

deceased, and Jumila was buried in their presence.  At the  

instructions  of  some  people,  this  false  case  has  been  

lodged. They never demanded dowry from the Jumila and  

her father. The other accused also averred the same thing.  

7. The trial court convicted all the three accused persons.  

Accused  Liyakat  was  sentenced  to  undergo  life  

imprisonment and a fine of Rs.1000/- for the offence under  

Section 302, IPC.   In default of payment of fine, to further  

undergo six months simple imprisonment.  For the offence  

under  Section  498A  IPC,  he  was  sentenced  to  undergo  

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rigorous imprisonment of one year and a fine of Rs. 500/-  

and RI for one year and a fine of Rs. 500/-  for the offence  

under Section 201 IPC.  Another accused Ajeem Khan and  

Jannat were sentenced to undergo life imprisonment and  

fine of Rs. 1000/- each for the offence under Section 302/34  

IPC. In default of payment of fine, to further undergo six  

months  S.I.  The  accused  Ajeem  Khan  and  Jannat  were  

sentenced to undergo RI for one year and a fine of Rs. 500/-  

each for the offence under Section 498A IPC and in default  

of  fine to undergo three months SI  each. And they were  

also sentenced to undergo RI for one year and a fine of Rs.  

500/- each for the offence u/s 201 IPC.  The sentences were  

ordered to run concurrently.  

8. Aggrieved by  the judgment  passed by the  Additional  

Sessions  Judge  (Fast  Track)  Churu,  the  accused  persons  

challenged  the  above  decision  before  the  High  Court  of  

Judicature for Rajasthan at Jodhpur.  It may be noted here  

that  during  the  pendency  of  the  appeal  before  the  High  

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Court, accused Ajeem Khan died and his appeal was ordered  

to have abated.  The High Court while partly allowing the  

appeal  and  remanding  the  matter  to  the  trial  court  for  

further trial, held that in the present case, various material  

circumstances  appearing  against  the  accused  from  the  

material  on  record  have  not  been  put  to  accused  under  

Section 313, Cr.P.C.  The High Court observed that:-

“..The  question  then  is  as  to  what  is  the  consequence i.e.  whether notwithstanding   any  other  material  being  there  on  record  which  by  itself may or may not be sufficient to convict the  accused simply for the omission on the part of the  learned trial court to put certain or few important  circumstance  to  the  accused  in  his  statement  under Section 313, the accused should be allowed  to go scot-free solely on that ground or whether in  every case, where despite the fact that there is no  reliable evidence on record to convict the accused  still since he has been convicted by relying upon  certain  circumstances  not  put  to  the   accused  under Section 313,  in every case as a rule,  the  trial should be held vitiated and the matter should  be  remanded back  to  the  learned  trial  court  or  whether  the  importance  and  significance  of  the  circumstances omitted to be put to the accused is  required  to be considered in the sense  that the  conviction  should  be  upheld  if  even  after  excluding those circumstances, the conviction can  be upheld. We are to consider as to out of these  various  options,  which  is  to  be  chosen  in  circumstances, where certain circumstances have  not  been  put  to  the  accused  in  his  statement  under Section 313.

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Laying  down  any  other  straight-jacket  formula  would  cause  great  hardship  sometime  on  the  prosecution  and  sometime  on  accused.   The  accused cannot be allowed to go scott-free simply  on the basis of the fact that all evidence has not  been put on him under Section 313 even though  there is sufficient material available on record as  in  that  event  the  possibilities  are  not  ruled  out  about  unscrupulous  accused  managing  to  have  omissions in the statement under Section 313 and  claim  immunity  even  in  heinous  offences.  Likewise,  where  there  is  no  material  on  record  against the accused, then also the trial cannot be  prolonged simply for the lapse of the officer in not  putting the appropriate questions to the accused”.

9. The High Court further held that:- “Before parting with the case, it may be observed  that it is on account of the perfunctory manner of  recording  statement  under  Section  313  that  the  matter  is  required   to  be  remanded  with  the  further result that one of the accused person, who  is in jail and is to face the continued prolonged trial  for no fault of his.  The officers, at least in R.H.J.S.  cadre,  are  supposed  to  know the  importance  of  proper recording of the statements of the accused  under  Section  313  as  highlighted  in  series  of  judgments,  some of  which  have been noticed in  this  judgment.  The observations  may be sent  to  the officer concerned and may also be brought to  the  notice  of  the  Hon’ble  Chief  Justice  if  His  Lordship feels appropriate to take any disciplinary  action”.

10. Hence, the present appeal by special leave by two  

accused persons.  As noticed above, accused Ajeem Khan  

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died during the pendency of the appeal before the High  

Court.

11. We  have  heard  Mr.  Pallav  Shishodia,  learned  

senior  counsel  appearing  for  the  appellants  and  Mr.  

Jayant Bhatt, learned counsel for the State of Rajasthan  

and perused the papers placed before us including the  

original record received from the lower courts.

12. Mr.  Shishodia,  learned senior  counsel  contended  

on  behalf  of  the  appellants  that  the  purpose  of  

examination  of  an  accused under  Section  313,  Cr.P.C.,  

1973 is to enable the accused personally to explain any  

circumstances  appearing  in  the  evidence  against  him.  

The object is to benefit the accused and not to nail him to  

any position in compliance of principle of natural justice  

audi altram partem.  He relied upon the decision of this  

Court in  Basavaraj R. Patil vs. State of Karnataka,   

(2000)  8  SCC  740,  and  Ajay  Singh  vs.  State  of  

Maharashtra, (2007) 12 SCC 341.  

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13. Contending  that  the  power  of  Appellate  Court  

hearing  a  Criminal  Appeal  to  order  for  a  retrial  would  

result in  de novo trial of entire matter which should be  

ordered in  exceptional  and rare  cases  only  when such  

course  of  fresh  trial  becomes  indispensable  to  avert  

failure of  justice.  Mr.  Shishodia,  learned senior  counsel  

relied upon the decision of this Court in Mohd. Hussain  

@ Julfikar vs. State (Govt. of NCT of Delhi), (2012) 9  

SCC 408,  State of M.P. vs. Bhooraji & Ors.,  (2001) 7  

SCC 679 and Ganesha vs. Sharanappa & Anr., (2014)  

1 SCC 87.

14. According to learned senior counsel, in the present  

case,  there  appears  no  major  omission  on  the  part  of  

prosecution to put its case and/or material evidence or  

circumstances for explanation by accused appellants.  He  

contends  on  behalf  of  the  appellants  that  the accused  

appellants  have  explained  the  same  and/or  cross  

examined  the  prosecution  witness  on  all  material  

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aspects.  Therefore, the course of partial remand adopted  

by  the  High  Court  in  the  impugned  judgment  is  not  

justified even on facts, much less in law especially when  

accused appellants have not raised the grievances that  

the  trial  is  vitiated  by  not  being  given  opportunity  to  

explain  the  material  evidence  and/or  circumstances  

allegedly against accused.  Mr. Shishodia submitted that  

in  any  case  this  failure,  if  any,  can  be  addressed  by  

seeking explanation of counsel for accused appellants by  

the Appellate Court.  

15. Concluding his arguments, learned senior counsel  

appearing for  the appellants  drew our  attention to  the  

case of Fahim Khan and another vs. State of Bihar,  

(2011)  13  SCC  147,  wherein  this  Court  in  somewhat  

similar  circumstances  was  pleased to  remit  the  matter  

back to the High Court for decision on merits.

16. The High Court proceeded on the basis that there  

is perfunctory examination of the accused under Section  

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313 Cr.P.C. The High court further proceeded on the basis  

that the trial court has used it against the accused and  

considered the circumstances viz. that immediately after  

the alleged suicide, the accused persons did not give any  

report to the police  after her unnatural death with the  

result that enquiry under Section 174 could not be done.  

The relevant portion of the High Court judgment is quoted  

hereinbelow:-

“If the present case is considered from the above  standpoint, as we have found that the learned trial  Court  has  used  against  the  accused  and  considered  the  circumstances  viz.,  that  immediately after the alleged suicide the accused  persons did not give any report to the police about  her unnatural death with the result that an inquiry  under  Section  174  could  not  be  done  and  no  reason has been put forward by the accused for  not lodging the report. Similarly, the learned trial  Court has relied upon Ex.P/4A and the statement of  P.W.10 that in the Halat Mauka, the door was got  bolted from inside and it did get opened on being  pushed from outside. Likewise, the learned 40 trial  Court  has  also  considered  that  in  the  site  plan  Ex.P/4 at Point E a 15 inch x 15 inch hole has been  made anew in the 9 inch thick wall in an attempt  to show it to be a case of suicide and hole having  been made with a view to show an attempt on the  part  of  the  accused  to  save the  deceased while  there was no justification for making this opening  and  thus  a  false  story  of  suicide  has  been  projected. Similarly the learned trial Court has also  considered that the accused Liyakat despite being  

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husband  of  the  deceased  could  not  be  arrested  after the incident  and could be arrested only  on  15.5.2000 and this absconding of the accused also  confirms his being guilty. In our view, in this regard  there  is  material  on  record  being  Ex.P/21  the  warrant  having  been  obtained  for  arresting  the  accused, the fact is that challan was filed against  the  accused  under  Section  299  and  in  that  trial  statements of 5 witnesses were recorded and then  after arrest of the accused Liyakat, the matter was  retried. Then we also find that the learned Public  Prosecutor  has  pressed  into  service  the  circumstance  that  as  deposed  by  Mustaq  P.W.1  that information about the death of Jumila was not  conveyed  to  them  and  she  was  buried  as  a  incriminating  circumstance  against  the  accused.  We have found that all these circumstances have  not been put to the accused in his statement under  Section  313  and  those  circumstances  by  themselves so also in conjunction with the existing  material on record with regard to which we do not  propose to express any opinion either ways lest it  should prejudice the case of either side, does have  material bearing on the aspect, as to whether the  accused/s can be convicted or are entitled to be  acquitted.”

17. On  the  basis  of  the  aforesaid  finding,  the  High  

Court allowed the appeal, set aside the judgment of the  

trial court and remanded the matter back to the trial court  

to  retry  the  matter  at  the  stage  of  completion  of  

prosecution evidence and seek explanation of the accused  

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with respect to all  the circumstances appearing against  

them.

18. Prima facie, we do not agree with the view taken  

by the High Court remanding the matter back to the trial  

court for retrial.  Section 313 of the Code reads as under:-

“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  

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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”

19. From bare perusal of the aforesaid provision, it is  

manifest  that  the  Section  intended  to  afford  a  person  

accused  of  a  crime  an  opportunity  to  explain  the  

circumstances  appearing  in  evidence  against  him.  Sub-

section (1) of Section 313 empowers the Court to put such  

question to the accused as is considered necessary at the  

stage of the inquiry for trial.  At the same time it imposes  

a duty and makes it mandatory on the Court to question  

him generally  on the prosecution having completed the  

examination of  its  witnesses and before the accused is  

called  on  to  enter  upon his  defence.   Indisputably,  the  

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attention of the accused should be invited to inculpatory  

piece of evidence or circumstances laid on record and to  

give  him  an  opportunity  to  offer  an  explanation  if  he  

chooses  to  do  it.   The  purpose  of  examination  of  the  

accused  under  Section  313  of  the  Code  is  to  give  the  

accused  an  opportunity  to  explain  the  incriminating  

material which has come on the record.  The scope and  

purpose  of  Section  313  of  the  Code  came  for  

consideration before this Court in a number of judgments,  

few of which are discussed for the present case.  

20. In the case of  Sharad Birdhi Chand Sarda vs.   

State of  Maharashtra,  AIR  1984  SC  1622,  this  Court  

observed  that  when  no  question  has  been  put  to  the  

appellant in the course of his examination under Section  

313 Cr.P.C. about any ill-treatment of the deceased by the  

appellant  or  his  parents  and if  the explanation has not  

been  sought  for,  by  putting  the  circumstances  to  the  

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appellant-accused in his examination under Section 313  

Cr.P.C. that has to be excluded from consideration.

21. In  the  case  of Shivaji  Sahabrao  Bobade and  

Anr. vs. State of Maharashtra, (1973) 2 SCC 793, three  

Judges  Bench  of  this  Court  considered  the  provision  of  

Section 313 of the Code.  Writing the judgment, Justice  

Krishna Iyer, J. observed:-

“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  

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the circumstances on which the trial court had  relied  for  its  conviction.  In  such  a  case,  the  Court  proceeds  on  the  footing  that  though  a  grave  irregularity  has  occurred  as  regards  compliance  with  Section  342,  CrPC,  the  omission has not been shown to have caused  prejudice to the accused.  

22.  In the case of  S. Harnam Singh vs. State (Delhi  

Admn.), (1976) 2 SCC 819, this Court held as under:-

“22.  Section  342 of  the Cr.PC,  1898,  casts  a  duty on the Court to put, at any enquiry or trial  questions  to  the  accused  for  the  purpose  of  enabling  him  to  explain  any  circumstances  appearing  in  the  evidence  against  him.  It  follows as a necessary corollary therefrom that  each  material  circumstance  appearing  in  evidence against the accused is required to be  put  to  him  specifically,  distinctly  and  separately.  Failure  to  do  so  amounts  to  a  serious  irregularity  vitiating  the  trial  if  it  is  shown to have prejudiced the accused. If  the  irregularity does not, in fact, occasion a failure  of justice, it is curable under Section 537 of the  Code.

23.  In  the instant case,  as already observed,  the  time  of  the  actual  exit  of  the  goods  in  question  from  the  Mills  was  a  vital  circumstance  appearing  in  the  prosecution  evidence. Indeed, Counsel  for the respondent  has  primarily  staked  his  arguments  on  it  to  show that the goods could not have reached  the Goods Shed before 10 a.m. on the 11th. In  view  of  Section  342,  therefore,  it  was  incumbent  on  the  trial  Court  to  put  this  circumstance  clearly  and  distinctly  to  the  

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accused during his examination. The failure to  do  so  amounts  to  a  grave  irregularity.  The  gravity of this irregularity was accentuated by  another lapse on the part of the prosecution.  That  lapse  was  the  failure  to  produce  three  crucial witnesses, namely, Chiranjilal, the truck  driver,  Mukand  Lal,  the  Marker,  and  Om  Parkash,  the  Railway  Gate  Clerk  with  his  record.  It  may be noted that these witnesses  were cited by the prosecution in the calendar  of witnesses and were required to appear along  with  the  records  maintained  by  them.  But  subsequently, without good reason, they were  given  up.  They  were  the  persons  who  could  give the best and direct evidence with regard  to  the  receipt  of  these  goods  in  the  Goods  Shed. The non-production of this evidence has  certainly  prejudiced  the  fair  trial  of  the  appellant.

24.  Mr.  H.R.  Khanna  points  out  that  the  question  of  the  appellant  being  prejudiced  owing to the failure of the prosecution to put  this circumstance to him in examination under  Section  342,  was  not  raised  in  the  Courts  below,  and  consequently,  the  appellant  is  debarred from raising it now.”

23. In  the  case  of  Asraf  Ali  vs.  State of  Assam,  

(2008) 16 SCC 328, this Court held that:-

“21. 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  

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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 prejudice.

22. The object of Section 313 of the Code is to  establish a direct dialogue between the court  and the accused. If a point in the evidence is  important  against  the  accused,  and  the  conviction is intended to be based upon it, it is  right  and proper  that  the  accused should  be  questioned about the matter and be given an  opportunity of explaining it. Where no specific  question has been put by the trial court on an  inculpatory  material  in  the  prosecution  evidence, it would vitiate the trial. Of course,  all these are subject to rider whether they have  caused miscarriage of justice or prejudice. This  Court  also  expressed  a  similar  view  in  S.  Harnam Singh vs. State (Delhi Admn.) (1976) 2  SCC 819 while dealing with Section 342 of the  Criminal Procedure Code, 1898 (corresponding  to Section 313 of the Code). Non-indication of  inculpatory material in its relevant facts by the  trial  court  to  the  accused  adds  to  the  vulnerability of the prosecution case. Recording  of  a statement of  the accused under Section  313 is not a purposeless exercise.”

24. In the case of  Paramjeet Singh @ Pamma vs.  

State  of  Uttarakhand, (2010)10  SCC  439,  this  Court  

after considering the earlier views of this Court observed in  

para 13 as under:-

“13.  Though a conviction may be based solely  on circumstantial  evidence,  this  is  something  

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that the court must bear in mind while deciding  a case involving the commission of  a serious  offence  in  a  gruesome  manner.  In  Sharad  Birdhichand  Sarda  vs.  State  of  Maharashtra,  this Court observed that it is well settled that  the prosecution’s case must stand or fall on its  own legs and cannot derive any strength from  the  weakness  of  the  defence  put  up  by  the  accused.  However,  a  false  defence  may  be  called into  aid only  to lend assurance to the  court  where  various  links  in  the  chain  of  circumstantial  evidence  are  in  themselves  complete. This Court also discussed the nature,  character  and  essential  proof  required  in  a  criminal  case  which  rests  on  circumstantial  evidence alone and held as under: (SCC p. 185,  para 153)

“(1)  the  circumstances  from  which  the  conclusion  of  guilt  is  to  be  drawn should  be  fully established,

* * *

(2)  the  facts  so  established  should  be  consistent only with the hypothesis of the guilt  of the accused, that is to say, they should not  be explainable on any other hypothesis except  that the accused is guilty,

(3) the circumstances should be of a conclusive  nature and tendency,

(4)  they  should  exclude  every  possible  hypothesis except the one to be proved, and

(5)  there  must  be  a  chain  of  evidence  so  complete  as  not  to  leave  any  reasonable  ground for the conclusion consistent with the  innocence of the accused and must show that  in  all  human  probability  the  act  must  have  been  done  by  the  accused.”  (emphasis  supplied)

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25. In the case of Alister Anthony Pareira vs. State of   

Maharashtra, (2012)  2  SCC  648,  the  provision  again  

came for consideration before this Court, when it held as  

under:-

“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  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  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.”

26. The  decisions  of  this  Court  quoted  hereinabove  

would  show  the  consistent  view  that  a  defective  

examination of the accused under Section 313 Cr.P.C. does  

not by itself vitiate the trial.  The accused must establish  

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prejudice thereby caused to him.  The onus is upon the  

accused to prove that by reason of his not having been  

examined  as  required  by  Section  313  he  has  been  

seriously prejudiced.  

27. As  noticed  above,  the  High  Court  highlighted  

certain  facts  and  circumstances  of  the  case,  i.e.  

immediately after the alleged suicide the accused person  

did not give any report to the police about her unnatural  

death;  the  statement  of  PW-10,  that  the  door  was  got  

bolted from inside and it  did not open on being pushed  

from  outside;  and  the  trial  court  considered  that  the  

accused Liyakat could not be arrested after the incident  

and could be arrested only on 15.5.2000. The High Court is  

of the opinion that all these circumstances have not been  

put  to  the  accused in  his  statement  under  Section  313  

Cr.P.C. which vitiated the trial.

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28. In our  considered opinion,  the High Court  fell  in  

error in coming to the above conclusion.  It is an admitted  

fact  that  the  accused  persons  immediately  after  the  

alleged suicide did not give any report to the police about  

her unnatural death.  There is no denial to this fact and the  

accused are fully aware about the fact that they have not  

reported the matter to the police. From bare perusal of the  

statement recorded under Section 313 Cr.P.C., it is evident  

that  the Court  elaborately  put  questions to the accused  

and the same have been answered in detail.  The entire  

incident has been fully apprised to the accused including  

that the accused Liyakat was confronted with the Exhibit  

14,15,16 and 17 to the effect that the accused  Liyakat,  

who was absconding, was finally arrested.  In answer, the  

accused said “not aware”. Same answer was given by the  

accused Ajeem Khan.

29. The Court apprised the accused persons in a very  

elaborate manner about the incident that took place, the  

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sequence of events and the material on evidence brought  

on record.  The accused persons were fully aware about all  

these evidences.  The appellants did not raise the question  

before the trial court that any prejudice has been caused  

to  them  in  examination  under  Section  313  Cr.P.C.  The  

burden is on the accused to establish that by not apprising  

all  the  incriminating  evidences  and  the  inculpatory  

material  that  had  come  in  the  prosecution  evidence  

against  them,  prejudice  has  been  caused  resulting  in  

miscarriage of justice.  In the instant case, we are of the  

definite view that no prejudice or miscarriage of justice has  

been done to the appellants.

30. Learned  counsel  for  the  respondent-State  

submitted that the trial court has gone into the merits of  

the case.  He fairly submitted that it is not a case where  

matter  is  to  be  remanded  back  to  the  trial  court  for  

deciding fresh as held by the High Court.

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32. Taking  into  consideration  the  entire  facts  and  

circumstances  of  the  case  and  the  law  discussed,  

hereinbefore, we are of the opinion that the High Court has  

erred in law in setting aside the trial court judgment and  

remanding the matter back for retrial and afresh decision.  

It  is  a  fit  case  where the  High  Court  should  decide  the  

appeal on merit.

33. For  the  reasons  aforesaid,  we  dispose  of  this  

appeal, set aside the judgment and order passed by the  

High Court and remand the matter back to the High Court  

to decide the appeal on merit in accordance with law.  The  

appellants  shall  remain  on bail  till  further  orders  of  the  

High Court in the matter.

………..……….………….J.  ( M.Y. Eqbal)

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………..……….………….J. (Abhay Manohar Sapre)

New Delhi September 26, 2014.

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