Examination of Accused

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Examination of Accused

Section 313 of Code of Criminal Procedures

Power of court to examine the accused person

After closure of the prosecution evidence and before the accused is called upon to enter into his defense, the court is under obligation to examine the accused in respect of the evidence available against him. The court would like to hear the version of the accused about the incriminating materials available in the case against him. This section fosters the principle of Natural justice Audi Alterem Partem (that no one should be condemned unheard) by lending a mandatory opportunity to the accused person to “personally” answer against the evidence which are found incriminating against him.

Object and Scope of Section 313

The examination of the accused is not a mere formality, the questions put to the accused and answers given by him, have great use. The scope of section 313 of the Cr.P.C. is wide and is not a mere formality. The object of recording the statement of the accused under section 313, Cr.P.C. is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. It is –

1. to establish a direct dialogue between the court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain them.[i]

2. also to test the veracity of the prosecution case.

The Court is required in every trial to conduct examination of accused under Section-313 Cr.P.C after taking of the prosecution evidence.

An analysis of Section 313 discloses the power of court to examine the accused at 2 stages. According to the section the Hon’ble trial court:

1. May, at any stage, examine the accused for the purpose of enabling him personally to explain any circumstances appearing in the evidence against him. (Sec.313(1) (a) Cr.P.C)

2. Shall, after the witnesses for the prosecution have been examined, examine the accused for the purpose of enabling him personally to explain any circumstances appearing in the evidence against him. (Sec.313 (1) (b) of Cr.P.C).

Mandatory nature of Section 313

The use of May and shall is deliberative showing that under part (a) of first clause, the examination at any stage is discretionary in nature and under part (b) it is mandatory in nature.

Thus, any violation of the mandates of Section 313 of Cr.P.C shall be fatal to the prosecution’s case to the extent that such incriminating evidence which was not put to the notice of the accused person in order to extract his personal explanation for the same, shall not be used against him if it has been proved by the accused person that such omission materially prejudiced him and his chances to incline the result of the trial in his favor. The accused may or may not avail the opportunity for giving his explanation.[ii]

But such examination is not in any way a forceful examination, which means that if the accused person gives false/evade answers or remains silent, he cannot be punished for the same.[iii] But his conduct shall be taken into consideration and in case he gives false answers/remains silent; his conduct can reward additional points in the favor of prosecution’s case.

Methodology Involved In Examination u/s 313 

Section 313, Cr.P.C. (1) (b) casts a duty on court to give an opportunity to the accused to explain the incriminating material against him.[iv] For the purpose of section 313, Cr.P.C. accused means the accused then under-trial and under-examination by the court, and does not include an accused over whom the court is exercising jurisdiction in another trial.[v]

The court questions the accused based on the incriminating material available in the evidence let in by the prosecution. The motive of this section is to afford the accused a fair and proper opportunity of explaining the circumstances which appear against him in the evidence of prosecution. The foremost thing is that the Court should frame the questions in such a careful manner that the question should not give raise to an ambiguous answer. The questions put to accused must be simple and intelligible. Questions which may be put to the accused at the stage of recording statement under section 313 is not restricted to examination-in-chief but includes cross-examination also.

The Hon’ble Apex Court in Ajit Kumar Vs State of Bihar[vi] held that if an accused is not asked questions on his motive for the crime it may be prejudiced him and thus vitiate the trial.

As per sub section (2) of Section 313, No oath shall be administered to the accused when he is examined under section 313 Cr.P.C, hence it cannot be treated as evidence within the meaning of Section-3 of Indian Evidence Act, 1872. The statement of accused is not treated as substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution.

In State of M.P vs Ramesh[vii] held that as such 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, it cannot be treated as evidence within the meaning of Section-3 of the Evidence Act, 1872.

As per Sub-Sec.5 of Sec.313 Cr.P.C, the Court may take help of Prosecutor and Defense 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.

Separate Questions About Each Material Circumstance:

It is not sufficient compliance to string together long series of facts and ask the accused what he has to say about them. He must be questioned simply and separately about each material circumstance which is intended to be used against him. The questioning must be fair and framed in a form which an ignorant and illiterate person may be able to appreciate and understand. Even if the accused is not illiterate, his mind is apt to be perturbed when he is facing a trial of murder. Therefore, it is required that each material circumstance should be put simply and separately in a way that an illiterate person can appreciate and understand.[viii]

Use of Statement of Accused U/S 313 Cr.P.C. 

Section 313 of the Cr.P.C. contemplates the use of the statement made by the accused in the following ways: –

  • The court may take into consideration the statement made by the accused in the ensuing trial. So far as the ensuing trial is concerned, the court “may take into consideration” the answers given by the accused. The court is at liberty to use the incriminating answers against the accused and may even supplement the prosecution evidence for the purpose.
  • If such statement tends to show that the accused has committed any other offence, such statement may be put in evidence for or against him in any such subsequent inquiry or trial for such other offence [313(4)]. The statement of the accused as envisaged by this provision of law would be mostly in the nature of admission, as defined U/s 17 of the Indian Evidence Act

Provisions in Other Countries

There is not any specific provision laid down in criminal codes of countries such as United States, UK and France for examining accused against incriminating evidences laid by prosecution evidences before entering into defense evidences. Usually in these countries, after admitting prosecution evidence and cross examination, it is immediately followed by defense evidences and there is no room for separate explanation from accused person against prosecution evidences. But such a requirement is met with during examination of prosecution and defense evidences to provide the accused an opportunity to tell his motive behind the act and also justify or contradict such evidences.

However, United States provides for the Confrontation Clause.  Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.

Illustrations

1. If there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence examination u/s 313 Cr.P.C would be wholly un-necessary.

2. If some incriminating evidences are produced during a proceeding against accused X, the court is required to provide an opportunity to the accused to state before the Court his explanation and what is his defense, u/s 313.

Frequently Asked Questions –

1. Whether statement recorded under section 313 can form a sole basis for conviction?

Such statement cannot be made a basis for his conviction. His answers to the questions put to him under section 313 CrPC 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.

2. Whether Accused can be furnished with questions that may be asked for examination under S. 313 CrPC before filing written statement?

Yes, he would have the right to be furnished with the questions in advance so that he can submit his written statement. 

Reference 

[i] Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507

[ii] Subhash Chandra v. State of Rajasthan; (2002) 1 SCC 701

[iii] Section 313(3) of Code of Criminal Procedure

[iv] State of Maharashtra v. Sukhdev Singh; AIR 1992 SC 2100

[v] Karamalli Gulamalli; (1938) 40 Bom. LR 1092 (1939)

[vi] Ajit Kumar Vs State of Bihar (1972) 2 SCC 451

[vii] State of M.P Vs Ramesh (2011) 4 SCC 786

[viii] Tara Singh v. State of Punjab; AIR 1951 SC 44