The penultimate stage of criminal proceedings is the examination of accused u/s sec.313 Criminal Procedure Code which has become a farce like winking of an eyelid by a visually challenged person (with due apologies to them).
Section 313 Cr.P.C enunciates as follows:
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 him self-liable to punishment by refusing to answer such question, 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 had committed.
The long and short of it is that the accused is to be questioned by the Court basing on the incriminating material available in the evidence let in by the prosecution.
First and foremost thing is that the Court should frame the questions in such a careful manner that the question should not give rise to an ambiguous answer.
The examination of accused u/sec.313 Cr.P.C in certain cases involving the offences u/secs.146 & 148 by the unlawful assembly of a mob particularly in the rivalry of political parties and strikes, the Court will be in the state of the quandary to follow the procedure of posting specific questions to an appropriate accused. Since each questionnaire has to be prepared to each accused it will consume more time rather than in disposing the same when the number of accused are more.
There is no specific provision to authorise a particular person to answer the questions in 313 Cr.P.C examination when the accused are huge in number. In such cases preparation of questionnaire may not be impossible but it is very difficult and cumbersome.
It is pertinent to note that The Prevention of Corruption Act runs concurrently with the Cr.P.C. The said Act deals with the cases of taking gratification other than legal remuneration in respect of an official act [bribery cases] and disproportionate assets by a public servant which involved a tedious and cumbersome procedure. Under this Act umpteen numbers of documents are to be marked and especially in the case of holding of disproportionate assets case, each question is to be framed against each document produced by the prosecuting agency. In almost all the cases the number of questions will be usually pretty large.
Even though there is no stipulation of law that examination of accused u/sec.313 Cr.P.C should be done at a stretch but in practice once the Court starts questioning the accused it is constrained to continue till its end which hampers the other judicial proceedings and often causes adjournment of other matters.
It is high time to go through the Judgment pronounced by the Hon'ble Supreme Court in Ashok Debbarma @Achak Debbarma Vs State of Tripura reported in Crl. Appeal No.47-48/2013. While dealing with the provision of Sec.313 Cr.P.C, the apex court referred umpteen numbers of judgments delivered in previous occasions.
Mohan Singh v. Prem Singh and another (2002) 10 SCC 236
It was held that 'the statement made in defence by accused under Section 313 Cr.P.C can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 Cr.P.C cannot be made the sole basis of his conviction.
State of M.P. vs Ramesh, (2011) 4 SCC 786
The Court held that 'The statement of the accused made under Section 313 Cr.P.C can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined his statement so recorded under Section 313 Cr.P.C cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act. 1872.
In Raj Kumar Singh @ Raju @ Batya vs State of Rajasthan CRIMINAL APPEAL NOS. 931-932 of 2009 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION while dealing with the following cases commented as follows:
In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114, this Court observed as under: 'It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events.”
In Brajendrasingh v. State of M.P., AIR 2012 SC 1552, this Court held, that it is equally true that a statement under Section 313 Cr.P.C., simplicitar cannot normally be made the basis for convicting the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then the heavy onus of providing adequate proof on the prosecution, that is placed is to some extent, reduced.
'In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.'
It is a well-settled law that prosecution has to stand on its own legs. The conviction cannot be secured only on the basis of the statement recorded under Section 313 CrPC.
Despite posting of questions u/sec.313 Cr.P.C by the court to the accused, in general the accused gives an informal and a monosyllabic reply just by negating the charges levelled against him
It is appropriate to note that while the recording of evidence was going on, the accused is naturally be present in the corpus and he is very much aware of the evidence given by the prosecution witnesses. More so, u/secs.243, 247 and 315 Cr.P.C an opportunity will be given to the accused by the Court to defend his case. When such is the case, the questioning by the Court again becomes redundant.
In following the procedure of examining the accused u/sec.313 Cr.P.C much valuable time of the Court will be consumed for getting an answer of mere denial.
The implementation of the said provision in yore was promising since the pendency of criminal cases is less in number and now it became mountainous due to the prevalence of crime.
While dealing with various cases the apex court consistently remarked that the statement made in defence by accused under Section 313 Cr.P.C can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under section 313 Cr.P.C cannot be made the sole basis of his conviction.
The underlying opinion of the Supreme Court in the above cases can be inferred that mere admission of the accused u/sec 313 Cr.P.C examination cannot be considered for conviction. In such case the examination of accused u/sec.313 Cr.P.C is significantly insignificant.
If the legal luminaries of the fraternity believe that any point worth the name, ponder over to repel the provision of Sec.313 Cr.P.C to facilitate the Courts for speedy disposal of criminal cases.