Tripura High Court
The State Of Tripura vs Sri Rashida Tripura on 1 August, 2017
Bench: Chief Justice, S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
Death Sentence Reference No.01 of 2015
ALONGWITH
Crl.A.(J) No.57 of 2015
Death Sentence Reference No.01 of 2015
The State of Tripura
..................... Petitioner
-Vs-
1. Sri Rashida Tripura,
son of Sri Gajendra Tripura
2. Jani Tripura @ Jane @ Jhani,
son of late Harendra Tripura
- both are residents of village Dasaraipara,
P.S. Raishyabari, District : Dhalai, Tripura
..................... Respondents
For the petitioner : Mr. B.C. Das, Advocate General
Mr. A. Ghosh, Advocate
For the respondents : Mr. Sankar Deb, Senior Advocate
Mr. Ratan Datta, Advocate
Crl.A.(J) No.57 of 2015
1. Sri Rashida Tripura,
son of Sri Gajendra Tripura
2. Jani Tripura @ Jane @ Jhani,
son of late Harendra Tripura
- both are residents of village Dasaraipara,
P.S. Raishyabari, District : Dhalai, Tripura
..................... Appellants
-Vs-
The State of Tripura
..................... Respondent
For the appellants : Mr. Sankar Deb, Senior Advocate
Mr. Ratan Datta, Advocate
For the respondent : Mr. B.C. Das, Advocate General
Mr. A. Ghosh, Advocate
Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015
Page 1 of 23
BEFORE
THE HON‟BLE THE CHIEF JUSTICE
THE HON‟BLE MR. JUSTICE S. TALAPATRA
Date of hearing and
judgment & order : 01.08.2017
Yes No
Whether fit for reporting :
√
JUDGMENT & ORDER (ORAL)
(Talapatra J.) From the same judgment of conviction dated 21.09.2015 delivered in SPL. POCSO 21 of 2015 by the Special Judge, Unakoti Judicial District, Kamalpur, this reference under Section 366(1) of the Cr.P.C. for confirmation of the death sentence, being Death Sentence Reference No.01 of 2015 (The State of Tripura vs. Sri Rashida Tripura & Anr.) and the appeal under Section 374(2) of the Cr.P.C., being Crl. A.(J) No.57 of 2015 (Sri Rashida Tripura & Anr.
vs. The State of Tripura) have emerged and for that reason, this court has adopted the course of disposing the reference and the said appeal by the common judgment and order.
2. Against the convicts, the appellants in Crl. A.(J) No.57 of 2015, the prosecution was launched on the basis of the written complaint filed by one Demsing Tripura on 08.02.2014 (Exbt.3). By the said written complaint, the complainant (PW.3) had revealed that on 07.02.2014 at about 2.00 pm his daughter (the name withheld for purpose of protecting her identity) aged about 12 years had gone to see television in the house of one neighbour, namely Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 2 of 23 Rashida Tripura, but she never returned home. As she was found missing, a massive search was carried out in different places till her dead-body was recovered on 08.02.2014 at about 7.00 am. The said complaint was filed at 10.05 pm on 08.02.2014. Immediately a case was registered under Sections 366A and 376(ii)(1)/302 of the IPC.
3. On completion of the investigation, the chargesheet was filed against the appellants and the Special Court framed the charge against the appellants under Sections 120B, 376D and 302 read with Section 34 of the IPC. The appellants pleaded innocence and claimed to be tried.
4. The prosecution adduced as many as 47 witnesses including the Medical Officer, the Investigating Officer, the Forensic Expert, the complainant and the other witnesses who witnessed the transaction at various places and time. The prosecution had also adduced 30 documentary evidence including the post mortem examination report, inquest report, various seizure lists, hand-sketch map. That apart, 8 material objects were introduced in the evidence to substantiate the charge.
5. On recording the evidence of the prosecution, the appellants were examined under Section 313 of the Cr.P.C.
separately by the Special Judge. The appellants however repeated their plea of innocence during their examination under Section 313 of the Cr.P.C.. For their defence, they did not propose to adduce any evidence.
Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 3 of 23
6. Having appreciated the evidence, the Special Court by the said judgment dated 21.09.2015, on the basis of the following circumstances having proved, has convicted the appellants:
(a) Last seen together in the house of the accused Rashida Tripura;
(b) Both the accused conspired to commit the crime;
(c) Both had the motive to commit the crime for their past differences with the father of the victim;
(d) Extra-judicial confessions made by the accused persons;
and
(e) The corroboration of the prosecution story as well as the extra-judicial confessions by the scientific findings including biological and DNA finger-printing.
In that regard, the defence as raised by the appellants during their trial has also been noted and stated that except strong suspicion there is no legal evidence against the appellants.
7. Having appreciated the evidence, the Special Court came to the conclusion that the prosecution has proved the circumstances in such a manner that the hypothesis of innocence has been completely excluded and the evidence has eloquently pointed that it is the appellants and none other than them have committed the said crime. According to the Special Judge, the culpable act falls with the rarest of the rare case and the convicts for doing the heinous rape and murder deserves capital punishment. Accordingly, they have been sentenced with death.
8. In the course of hearing, when this court visited the statements recorded under Section 313 of the Cr.P.C., we were Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 4 of 23 taken aback inasmuch as the way the questions were framed and put to the accused persons are grossly unacceptable. The method as followed would only cause prejudice of serious form.
9. Time and again, this court has sounded that based on the incriminating materials surfaced in the evidence when the accused person will be examined under Section 313 of the Cr.P.C., the questions shall not be bundled up. As far as practicable each incriminating statement and material be referred separately and distinctly so that the accused is not confused or he finds difficulty in understanding or reply the said question. Wherever any witness made a long statement incriminating the accused person those shall be disjointed without affecting the core meaning so as to enable the accused person understand how those materials might be used, what probable defence he may take and how he would make the response.
10. It appears that in the present case all the statements made by each of the witnesses are bundled up and summarised and put together to have the response. Even the most intelligent person cannot probably make any meaning and definite response to the questions. For example, while examining one of the appellants, namely Rashida Tripura, the question No.4 that was put during examination under Section 313 of the Cr.P.C., reads as under:
"4) PW.3 deposed that on 7-2-14 he himself, his 11 years old daughter Karmati and his kid 1&½ years old went to the house of Rasida Tripura at around 2 p.m. to enjoy T.V. They enjoyed T.V. for about 15 minutes. Then Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 5 of 23 load shedding started. He and his kid returned home.
Karmati pleaded that she would wait for some time. At around 4-30 p.m. he went to catch fish near to his house. At that time Jani Tripura came out of the nearby jungle and inquired with him what about fish. On his return to home in the evening he found Karmati did not return home. He inquired with his wife who confirmed that Karmati did not return home. He went to the house of Rashida situated at a distance of 40/50 cubits from his house. There he found his daughter not available. He went to the house of Madhubanti, his sister-in-law and found Rasida consuming alcohol there. Madhubanti confirmed that Karmati did not go to their house. Now on his request Jani and Rasida accompanied him to the nearby locality in search of Karmati but she was found not available. Now they went to the TSR camp and on their request some jawans accompanied them. They searched the nearby locality till 2 a.m. but in vain. On the following day again he himself, Rasida, jani and Subhas started searching the nearby jungle. Rasida found the dead body of his daughter Karmati first and called him. They assembled there and found Karmati lying dead. She had a black colour T-shirt, one pachra as her wearing apparels but her panty was partly removed. There was finger print around her neck and there was mark of blood from her mouth. By this time some TSR jawans assembled there. Police was informed. Police personnel went there and examined the dead body and opined that Karmati was raped and then killed. He lodged a case written by Chandrakishore Tripura as per his version and handed it over to daragababu. He signed at the bottom of the ejahar. His signature, on identification marked Ext.3. karmati was 11 years old and a student of Class V. His eldest daughter Tularai was 15 years old. She was also a student of Class V. Daragababu shifted the dead body to hospital and prepared a report over the dead body. After the P.M. Exam. was done, the dead body was handed over to him. These are the wearing apparels of Karmati. The witness identifies Ext. M.O.1 series. One month prior to this incident he purchased one kani of land from one Jamindar Tripura of Sub-Division Sabroom who used to reside in their locality before leaving for Sabroom. Over that issue Rasida and Jani nourished grudge against him and used to create nuisance consuming alcohol. During this the period of one month Rasida one day came to his house in drunken condition and trapped his cat. He raised objection and requested him not to come to his house under the influence of liquor. Rasida and jani paid him Rs.210/- for registration of their marriage but since, they did not have Adhar card, Ration card, he could not do that and returned Rs.210/-. Over that issue also they nourished enmity against him. The cattle of Rasida and Jani used to damage his crops. He requested them to stop this but in vain. His eldest daughter Tularai used to prosecute her studies staying in a hostel in Raishyabari. On the occasion of Poush Sankranti she came to their house and when went to the nearby pond to take bath Rasida and Jani threatened her that they would rape Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 6 of 23 either Tularani or Karmati. This happened one week prior to the death of karmati. On the death of Karmati, Tularani return from hostel and informed him that one week prior to this Rasida and Jani expressed that they would rape either Tularani or Karmati. Hence, at the time of giving statement to daragababu he mentioned the name of Jani and Rasida. Tularani gave this information to him one day after the incident. She returned home from hostel on the day of recovery of the dead body of Karmati. There are 5 houses on the tilla of his homestead land. The houses of Jani and Rasida are also on the same tilla. He identified Jani and Rasida in the dock, Do you like to say anything on the deposition made by this witness?"
In the similar fashion, the question No.9 has been framed in the manner as under:
"4) PW.8 deposed that on 11-2-14 he was SDPO, Gandachara. On that day SP Dhalai, Addl. SP Dhalai, one DCM, he and a few respectable public were present in the chamber of OC Raishyabari PS. They assembled there for the purpose of Raishyabari PS case No.2/14 to supervise the investigation. Rasida Tripura was first brought to the chamber of OC. Rasida confessed in presence of the Executive Magistrate that on 7.2.14 at around 4/5 pm he along with Jani Tripura raped Karmati Tripura in a jungle to the western side of her house and killed her. Rasida divulged that he had enmity with the father of Karmati over a plot of land and Jani also had enmity with the father of Karmati over that issue that the cattles of Jani used to damage standing crops of the father of Karmati.
Rasida further divulged that he handed over Rs.215/- to the father of Karmati for registration of his marriage and later on the father of Karmati gave one receipt to Rasida that he had applied for registration of the marriage but on consultation with a local teacher Rasida became confirmed that it was a false receipt. He further stated that on the day of occurrence he went to the market with Jani and hacked up plan to commit the offence. Then Raida was taken away and Jani was brought in the chamber. Jani also stated that he along with Rasida raped karmati in a jungle to the western side of the house of Karmati and killed her. He also stated that he had enmity with the father of Karmati as the father of Karmati alleged damage of his standing crops by the cattles of Jani. He further stated that on the day of occurrence he along with Rasida went to the marked and hacked up the plan. Both of them stated that they could show the place where they committed. Then Jani and Rasida were boarded in two separate vehicle accompanied by them and lead them. Rasida was in his vehicle. He stopped the vehicle on a spot on Raishyabari and Desari para road. Then Rasida informed that this was the place where he hacked up the plan with Jani. Then the witness left with Rasida. The IO Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 7 of 23 was in another vehicle with Jani. In another vehicle SP, Addl. SP, Dhalai and DCM were there. After about 2 km he stopped his vehicle because there was no further motor able road. Then the IO also arrived there with Jani. Then Rasida led them in the jungle at a distance of ½ km from there and showed the place of occurrence. The entire proceeding was video graphed. Thereafter, Jani was again taken to the PO. This time also he accompanied Jani. He showed the same PO the IO confirmed that where Rasida identified the place of conspiracy. Jani also identified the same place of conspiracy. Rasida before leading them to the PO divulged that he wrapped the face and neck of the victim by a „gamcha‟ and committed rape on her. Thereafter, Jani raped. And immediate thereafter she died. Jani stated that when he attempted to commit rape the victim raised resistance and she strangulated the victim and the victim died. Rasida kept the „gamcha‟ in his house. Subsequently, the wife of Rasida produced the gamcha to IO and IO seized the „gamcha‟. After committing the crime Jani went to a house of the Tripura community and took wine there. The wearing apparels of accused persons were subsequently seized. After return to PS the discovery statement of accused persons were recorded. The witness identified you in the dock. Do you like to say anything on the deposition made by this witness?"
This pattern has been followed indiscriminately and the statement made by one individual witness had been bundled up in one question and that had been put for the response. Similarly, during examination under Section 313 of the Cr.P.C. of the appellant, Jani Tripura, the question No.42 has been framed in the following manner for response from the said accused person:
"4) PW.46 deposed that on 8-2-14 he was posted in Raishyabari P.S. as S.I. of police. He was in-charge of the P.S. On that day at 7.15 a.m. Biswajit Debbarma of 5th Bn.
TSR appeared in P.S. and informed that one dead body of a young girl was detected at Dasarai para. At the time of going out of P.S. he entered the fact in the G.D. Book vide entry 168 dt. 8-2-14. O.C. Nityananda Sarkar also accompanied him. SDPO, Gandachera also proceeded to the P.O. The father of the victim led us to the P.O. There we found the dead body of a girl whose name was Karmati Tripura aged 12 years. They cordoned the P.O. and called for dog squad and forensic Expert, Linkjoy Reang, he prepared surathal report over the dead body, this is the surathal report bearing his hand writing and signature on Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 8 of 23 identification marked Ext. 2/3. Before that he examined witnesses namely Chikanbati Tripura, Ratanmohan Tripura, Krishnada Tripura, Khirchand Tripura and recorded their statements. The forensic expert collected blood stain from the P.O. and one black colour T-shirt, one blue colour pachra, one blue colour panty, the wearing apparels of deceased. He seized those articles by preparing seizure list. This is the seizure list bearing his hand writing and signature, on identification marked Ext.1/2. The witness identifies Ext. M.O. 1 series. He prepared dead body challan and shifted the dead body to Gandacherra by constable for P.M. Examination. He filed a requisition to SDM Gandacherra for deputing one expert to collect body fluid of deceased. SDM Gandachera gave permission for conducting P.M. Exam over the dead body. After P.M. Exam doctor handed over vaginal swan (External and internal) of the victim, cervical swab of the victim, blood sample of victim, viscera of the victim. He seized those items by preparing a seizure list. This is the seizure list bearing his hand writing and sig. on identification marked Ext.7/3. On my return to P.S. he found Demsing Tripura he lodged a written ejahar. He registered Raishya P.S. case No.3/14. The endorsement on the body of ejahar bears his hand writing and signature, on identification marked ext. 3/1. He filled up printed FIR form. This is the printed FIR form bearing his hand writing and sig. On identification marked Ext.29. He took up its investigation. Before that he prepared hand sketch map in c/w G.D. No.168. This is the hand sketch map bearing his handwriting and sig. On identification marked Ext.30. He apprehended Rasida Tripura for interrogation and brought him to the P.S. After interrogation he formally arrested him as his involvement transpired. He then seized wearing apparels of Rasida Tripura in the P.S. Those were one black colour underwear, one white colour gangi in presence of witnesses. This is the seizure list bearing his handwriting and sig. On identification marked ext. 9/1. The witness identifies Ext. M.O.2 series. He examined witness Sambhu Debbarma and Surajit Gope. On 9-2-14 he forwarded Rasida Tripura to the court of SDJM, Kamalpur. On his prayer police remand was allowed. With permission of court he arranged collection of body fluid from the person of accused Rasida Tripura for chemical examination. SDM Gandachera there he examined witness Dilip Das, Sambhu Debbarma, Haridhan Banik. Doctor collected blood sample, penal swab, pubic hair of Rasida Tripura and handed over to me. He seized those items by preparing seizure list. This is the seizure list bearing his hand and sig. On identification marked Ext.8/1. On 1630 hour he visited the P.O. and examined two more witnesses. He returned to P.S. at 1945 hours. Now as per direction of the authority a team comprising S.P. Dhalai, Addl. S.P., SDPO, Gandacherra and himself interrogated Rasida in P.S. He then divulged that Jana Tripura was his companion in committing the crime of rape and murder of Karmati. Interrogation further transpired that Jana Tripura had enmity with Demsing over paddy land. On 10- Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 9 of 23 2-14 he went to Mayakumar para and arrested Jana Tripura. On interrogation his involvement transpired. Through SDPO he sent the seized articles to forensic science laboratory for examination. A team comprising of S.P., Addl. S.P. Dhalai, one executive magistrate, SDPO Gandacherra, two leading local people interrogated Rasida and Jana in the P.S. separately. Rasida divulged that he could show the place of occurrence if he was taken to the P.O. Now he recorded the statement of Rasida Tripura in presence of witnesses. Rasida Tripura put his thumb impression. He obtained his thumb impression and certified the same. This is the certificate bearing my handwriting, on identification marked Ext.15/2. After that Jana Tripura was brought. Jana also divulged that he could show the P.O. if he was taken there, he recorded his statement. This is the statement of Jana Tripura bearing his handwriting and sig. On identification marked Ext.16/2. Jana put his thumb impression and he certified the same. This is the certificate of his handwriting, on identification marked ext.16/3. This is the statement of Rasida Tripura bearing his handwriting and signature, on identification marked Ext.15/3. Then they started with Rasida and jana. On way to the P.O. at Mayakumar para Rasida asked to stop the vehicle and under a tree pointed by him he to have conspired with Jana to rape Karmati. Thereafter the vehicle carrying Jana also stopped at the same spot and Jana also stated that he along with Rasida conspired to rape Karmati at that spot. Then they started for the P.O. at the P.O. Rasida Tripura first led them and showed the P.O. He recorded another statement of Rasida. This is the statement bearing his handwriting and sig. On identification marked Ext.24/1. He put his thumb impression and he certified the same. This is the certificate bearing his handwriting. On identification marked Ext.24/2. The entire proceeding was video recorded by an expert. The Jana Tripura led us to the P.O. and pointed out the same P.O. He recorded statement of Jana Tripura. This is the statement of Jana Tripura bearing his handwriting and signature, on identification marked Ext.25/1. Jana put his thumb impression and he certified the thumb impression. This is the certificate bearing his handwriting, on identification marked ext.25/2. He seized the wearing apparels of Jana Tripura in presence of executive magistrate. This is the seizure list bearing his handwriting and sig. on identification marked ext.21/2. The witness identifies ext. M.O.6 series. He seized a gamcha which was wearing apparel of Rasida Tripura at the time of incident. This is the seizure list bearing his handwriting and sig. on identification marked Ext.23/1. He escorted Jana Tripura to hospital. There doctor collected blood sample, saliva sample, scalp hair, pubic hair, sample of semen, penal swab, finger nail scrub. He seized those items. This is the seizure list bearing his handwriting and sig. On identification marked ext.18/2. He forwarded the accused to the court of ld. SDJM Kamalpur with a prayer for collecting blood sample of accused person for DNA profiling. He filed a prayer for extract copy of G.D. No.167, Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 10 of 23 168 and 185. He filed a prayer for adding section 376D and Section 4 of POCSO Act. Prayer was allowed. At Kamalpur hospital blood sample was collected from both the accused for DNA profiling he seized those samples by preparing seizure list. This is the seizure list bearing his handwriting and sig. On identification marked Ext.19/1. On 14.2.14 through SDPO he communicated 10 items to FSL Agartala for examination. On 14-2-14 he examined some witnesses and recorded their statements. The video grapher handed over 3 C.Ds. Which he prepared at the time of leading discovery by the accd. person he seized the C.Ds by preparing seizure list. This is the seizure list bearing his handwriting and sig. On identification marked Ext.17/2. He seized adhar card of the victim from her house. There he examined witnesses and recorded their statements. On 24-2-13 he handed over the case docket to Addl. S.P. as per direction of S.P. C.S. What say you on this witness?"
11. Examination in this manner cannot be sustained by this court as the manner of framing the questions would only cause serious prejudice and aggravated prejudice to the accused persons.
Not only that, this mode of examination is contrary to the very object of Section 313 of the Cr.P.C. However, we have not given the illustration of each question.
12. In Raj Kumar Singh alias Raju alias Batya vs. State of Rajasthan, reported in (2013) 5 SCC 722, the apex court while dwelling on the methodology, have approvingly reproduce the principle as enunciated in Dharnidhar vs. State of Uttar Pradesh & Ors., reported in (2010) 7 SCC 759, where it has been observed as under:
"29. The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 11 of 23 was for the accused to avail that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC."
[Emphasis supplied]
13. In Nagaraj Vs. State Represented by Inspector of Police, Salem Town, Tamil Nadu, reported in (2015) 4 SCC 739, the apex court had occasion to enunciate the very purport and purpose of Section 313 of the Cr.P.C. in the following words:
15. In the context of this aspect of the law it is been held by this Court in Parsuram Pandey v. State of Bihar :
(2004) 13 SCC 189 that Section 313 Cr.P.C. is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali v. State of Assam : (2008) 16 SCC 328. In Sher Singh v. State of Haryana : (2015) 3 SCC 724 this Court has recently clarified that because of the language employed in Section 304-B IPC, which deals with dowry death, the burden of proving innocence shifts to the accused which is in stark contrast and dissonance to a person's right not to incriminate himself. It is only in the backdrop of Section 304-B IPC that an accused must furnish credible evidence which is indicative of his innocence, either Under Section 313 Cr.P.C. or by examining himself in the witness box or through defence witnesses, as he may be best advised.
Having made this clarification, refusal to answer any question put to the accused by the Court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 12 of 23 be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the accused because of what he has stated or what he has failed to state in his examination Under Section 313 CrPC.
[Emphasis supplied]
14. There is the fundamental duty of the trial Judge to ensure fairness to the accused at the time of examination under Section 313 of the Cr.P.C. The very object of this section is to bring the incriminating materials as surfaced in the evidence to the notice of the accused to enable him explain each and every circumstance appearing in the evidence against him. Examination under this section is mandatory as it creates right in favour of the accused to have his say on each and every circumstance and incriminating evidence against him. Thus, the examination of the accused under Section 313 (1)(b) of the Cr.P.C. is not a mere formality. Omission by the trial court to put any material circumstance to the accused under Section 313 of the Cr.P.C. and if the said material considered for conviction that might be treated as prejudicial to the accused and ultimately such omission might occasion failure of justice.
15. In Nar Singh vs. State of Haryana, reported in (2015) 1 SCC 496, the apex court has dwelled upon this aspect extensively.
It has been held there as under:
16. Undoubtedly, the importance of a statement Under Section 313 CrPC, insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 13 of 23 the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to Section 313 CrPC statement is taken at the earliest stage, the Court can make good the defect and record additional statement of the accused as that would be in the interest of all. When objections as to defective Section 313 CrPC statement is raised in the appellate court, then difficulty arises for the prosecution as well as the accused. When the trial court is required to act in accordance with the mandatory provisions of Section 313 CrPC, failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Insofar as non-compliance of mandatory provisions of Section 313 CrPC, it is an error essentially committed by the learned Sessions Judge.
Since justice suffers in the hands of the Court, the same has to be corrected or rectified in the appeal.
17. So far as Section 313 CrPC is concerned, undoubtedly, the attention of the accused must specifically be brought to inculpable pieces of evidence to give him an opportunity to offer an explanation, if he chooses to do so. A three-Judge Bench of this Court in Wasim Khan v. State of U.P. : AIR 1956 SC 400 and Bhoor Singh v. State of Punjab : (1974) 4 SCC 754 held that every error or omission in compliance of the provisions of Section 342 of the old Code of Criminal Procedure does not necessarily vitiate trial. The accused must show that some prejudice has been caused or was likely to have been caused to him.
[Emphasis supplied] In Nar Singh (supra), the supreme court had reproduced the following passage from Shivaji Sahabrao Bobade vs. State of Maharashtra, reported in (1973) 2 SCC 793, where the apex court has unambiguously observed as under:
"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 Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 14 of 23 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. 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...."
[Emphasis added]
16. We are alive that when the basic mode is correct, but there were omissions to frame a particular question or questions on the materials and put those to the accused person, mere omission, may at the appellate stage, be taken care of but here in this case we are confronted with a completely different context where framing of the questions is gravely defective. A question spreading over pages with rolled up circumstances and materials cannot be sensibly answered even by a supremely intelligent accused. Hence, denial of natural justice inheres in such mode.
17. In Ashok Debbarma alias Achak Debbarma vs. State of Tripura, reported in (2014) 4 SCC 747, the apex court has observed by way of illustration as under:
23. The learned counsel appearing for the accused has raised the question that incriminating questions were not put to the accused while he was examined under Section 313 CrPC. The object of Section 313 CrPC is to empower the Court to examine the accused after evidence of the Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 15 of 23 prosecution has been taken so that the accused is given an opportunity to explain the circumstances which may tend to incriminate him. The object of questioning an accused person by the Court is to give him an opportunity of explaining the circumstances that appear against him in the evidence. In the instant case, the accused was examined in the Court on 23-4-2005 by the Additional Sessions Judge, West Tripura, Agartala, which, inter alia, reads as follows:
Question: It transpires from the evidence of PW No.10, 11 and 13 that they had recognized you amongst the extremists. Is it true?
Answer : False.
Question: It transpires from the evidence of the
above witnesses that Dulal, Ajit,
Saraswati and Hemender sustained
severe bullet injuries by the firing of you
and your associates. What do you get to
say regarding this?
Answer : Yes
Question : It is evident from the evidence of these witnesses and other information that at that night Sachindra Sarkar, Archana Garkar, Dipak Sarkar, Gautam Sarkar, Shashi Sarkar, Prosenjit Sarkar, Saraswati Biswas, Tulsi Biswas, Narayan Das, Mithu Das, Bitu Das, Khelan Sarkar, Sujit Sarkar, Bipul Sarkar and Chotan Sarkar were killed by the bullets of fire arms and fire. What do you get to say regarding this?
Answer : ................... (blank).
The second question put to the accused was that, from the deposition of PW 10, PW 11, PW 13, it had come out in evidence that it was due to the firing of the accused and his associates, Dulal, Ajit, Saraswati and Hemender had sustained severe bullet injuries, to which the answer given by the accused was "Yes". In other words, he has admitted the fact that, in the incident, Dulal, Ajit, Saraswati and Hemender had sustained severe bullet injuries by the firing of the accused and his associates. Further, for the question, that from the evidence of those witnesses and other information, at that night, Sachindra Sarkar, Archana Garkar, Dipak Sarkar, Gautam Sarkar, etc. were killed by the bullets of fire arms and fire, the accused kept silent.
[Emphasis supplied] Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 16 of 23
18. Even though we have heard the reference and the appeal substantively but we are of the view that ostensibly there is grave prejudice caused to the accused inasmuch as their right to explain the incriminating materials and to take their defence has negated by the mode of framing of the questions while examining them under Section 313 of the Cr.P.C. First of all, the questions must be understandable and answerable. It is not a snare but to make the questions relating to incriminating materials understandable to the accused persons in order to have their response. Unless that mode is followed, it would defy and deny the requirement of the principle of natural justice at the closure of the prosecution evidence. For purpose of reference, we may reproduce hereunder Section 313 of the Cr.P.C. as a whole as amended by the Criminal Law (Amendment) Act 2013:
"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.
Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 17 of 23 (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 the section."
19. Section 313(1) of the Cr.P.C. has laid down the necessity and mode of the examination with minimal words. It provides that, 'in every inquiry or trial [as incorporated by the Criminal Law (Amendment) Act, 2013] for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him'. Sub-section(4) of Section 313 provides that, 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. This is where the importance of recording of the statement under Section 313 effectively lies.
When there is absolutely no circumstance appearing against the accused person, there would be no scope for the Magistrate to examine the accused under this section. There must be incriminating material against the accused person which has to be put for explanation of the accused while examining him under Section 313 of the Cr.P.C. The very object is, therefore, to establish a direct dialogue between the court and the accused. If a point in evidence is material against the accused and conviction is intended to be based Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 18 of 23 upon it, it is mandated that the accused should be questioned about that material point and be given opportunity of explaining it.
20. Section 313 of the Cr.P.C. embodies fundamental principle of audi alteram partem. As stated, the provisions of this section are mandatory and cast a duty on the court to afford opportunity to the accused to explain the incriminating material against him. Therefore, the examination under Section 313 of the Cr.P.C. is not an empty formality. It prescribes a procedural safeguard for a person facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the evidence led by the prosecution. That safeguard cannot be negated or compromised. Such examination can be carried out by a Magistrate or a trial Judge at any stage and this examination is in addition to the cross-examination. The words appearing in sub-
section(1) of Section 313 of the Cr.P.C. 'to explain any circumstances appearing in the evidence against him' is of paramount importance. The accused facing the trial is entitled to be asked about every piece of evidence which appears incriminating and to respond in the way the accused might consider to be made.
However, it is open to the accused whether he would avail the opportunity for offering his explanation or he would not. But the incriminating materials which are not put to the accused for his response cannot be relied by the court for conviction or any adverse observation. It is also well settled that the accused person cannot be examined together or collectively. It is imperative that each and Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 19 of 23 every question must be put to the accused separately and their answers shall be recorded also separately. Recording of the statement of the accused persons simultaneously and putting same questions to all the accused might cause prejudice to the accused.
Hence it is not proper at all. Thus, the alluring convenience for forming of common set of questions has to be avoided in order to obviate probability of taking any undue advantage by the prosecution.
21. The duty of the court while examining the accused under Section 313 of the Cr.P.C. is not to put him the entire evidence on record. The duty is to put specific circumstances of incriminating nature upon which the prosecution relies and which appears from the evidence on record. The specificity must be in regard to the circumstances appearing against the accused. The court cannot absolve itself of its duty by putting general questions without specifying the incriminating circumstances. The Judges and Magistrates must realise the importance of examination under this section. Each and every incriminating circumstance revealed from evidence must be put to the accused separately. Even if, allegations are common, each accused shall be given opportunity separately.
The entire statement of the witnesses are not to be put to the accused during their examination under Section 313 of the Cr.P.C., only material fact or details are to be put. Mere putting questions to the accused that whether he has heard the prosecution evidence and what he has to say would be no compliance of Section 313 of the Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 20 of 23 Cr.P.C. The accused's attention should separately be drawn to every inculpatory material so as to enable him explain it. This is the fundamental attribute of fairness in the criminal trial and failure in it 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 proceeding. 'Prejudice' occasioned by such defect must be established by the accused. In the event of any material not being put to the accused, the court must ordinarily eschew such material from consideration.
22. As stated, even the appellate court can call the accused to extend the explanation on the material by which he might have pleaded the prejudice and may make cure the defect without throwing out the entire prosecution case. The fundamental method of examination is very simple i.e. to put materials simply and separately. It is not sufficient compliance to string together a long series of facts and ask what he has to say about them. That is what we have witnessed in this case. The accused shall be questioned separately about each material circumstance which is intended to be used against him. The questioning must 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 Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 21 of 23 way that an illiterate can readily appreciate and understand. It is always better and safer in the interests of better administration of criminal justice that each and every circumstance emerging from the record against the accused is put to him. Justice requires that questions are put in a manner and style and form so as to be easily comprehensible to the accused. It is better if each question contains one circumstance only and not a combination of several circumstances, in order to provide to the accused proper and adequate opportunity to explain the circumstances against him. It is to be fair and just that the circumstances are properly put to him in the first place. That will not only help the accused but also help the appellate court in correctly appreciating the materials brought in the record. Where two material questions are put to the accused person in a combined and interpreted form those definitely will not conform to the requirement of Section 313 of the Cr.P.C.
23. The way the appellants herein have been examined under Section 313 of the Cr.P.C., particularly, in the manner the questions were framed, we are totally unhappy inasmuch it cannot really be termed as examination under Section 313 of the Cr.P.C.
Hence, that examination under Section 313 of the Cr.P.C. is interfered with and in the fitness of things, we consider that the impugned judgment and sentence shall be set aside and quashed. It is ordered accordingly. The matter is remanded to the Special Court for recommencing the trial from the stage of recording of statement of the accused persons under Section 313 of the Cr.P.C. in the mode Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 22 of 23 as discussed above. However, the appellants cannot be allowed to go on bail for such short time which would be required for recording their statement under Section 313 of the Cr.P.C., passing the judgment and the consequential order.
In terms of the above, both the reference and the appeal are disposed of.
LCRs be send forthwith.
JUDGE CHIEF JUSTICE ROY
Death Sentence Reference No.01 of 2015 ALONGWITH Crl.A.(J) No.57 of 2015 Page 23 of 23