Wednesday, 31 October 2018

Whether court is under obligation to consider defence of accused taken U/S 313 of CRPC?

 Section 313, Cr.P.C. cannot be seen simply as a part of
audi alteram partem. It confers a valuable right upon an
accused to establish his innocence and can well be considered
beyond a statutory right as a constitutional right to a fair trial
under Article 21 of the Constitution, even if it is not to be
considered as a piece of substantive evidence, not being on oath
under Section 313(2), Cr.P.C. The importance of this right has
been considered time and again by this court, but it yet remains
to be applied in practice as we shall see presently in the
discussion to follow. If the accused takes a defence after the
prosecution evidence is closed, under Section 313(1)(b) Cr.P.C.
the Court is duty bound under Section 313(4) Cr.P.C. to consider
the same. The mere use of the word ‘may’ cannot be held to

confer a discretionary power on the court to consider or not to
consider such defence, since it constitutes a valuable right of an
accused for access to justice, and the likelihood of the prejudice
that may be caused thereby. Whether the defence is acceptable
or not and whether it is compatible or incompatible with the
evidence available is an entirely different matter. If there has
been no consideration at all of the defence taken under Section
313 Cr.P.C., in the given facts of a case, the conviction may well
stand vitiated. To our mind, a solemn duty is cast on the court
in dispensation of justice to adequately consider the defence of
the accused taken under Section 313 Cr.P.C. and to either
accept or reject the same for reasons specified in writing.
17. Unfortunately neither Trial Court nor the High Court
considered it necessary to take notice of, much less discuss or
observe with regard to the aforesaid defence by the appellant
under Section 313 Cr.P.C. to either accept or reject it. The
defence taken cannot be said to be irrelevant, illogical or fanciful
in the entirety of the facts and the nature of other evidence
available as discussed hereinbefore. The complete nonconsideration
thereof has clearly caused prejudice to the

appellant. Unlike the prosecution, the accused is not required to
establish the defence beyond all reasonable doubt. The accused
has only to raise doubts on a preponderance of probability as
observed in Hate Singh Bhagat Singh vs. State of Madhya
Bharat, AIR 1953 SC 468 observing as follows :“
26. We have examined the evidence at length
in this case, not because it is our desire to
depart from our usual practice of declining to
the assess, the evidence in an appeal here,
but because there has been in this case a
departure from the rule that when an accused
person but for the word a reasonable defence
which is likely to be true,…… then the burden
on the other side becomes all the heavier
because a reasonable and probable story
likely to be true friend pitted against AV and
vacillating case is bound to raise a reasonable
doubts of which the accused must get the
benefit….”
A similar view is expressed in M. Abbas vs. State of Kerala,
(2001) 10 SCC 103 as follows :“
10….On the other hand, the explanation
given by the appellant both during the crossexamination
of prosecution witnesses and in
his own statement recorded under Section
313 CrPC is quite plausible. Where an
accused sets up a defence or offers an
explanation, it is well settled that he is not
required to prove his defence beyond a
reasonable doubt but only by preponderance
of probabilities….”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1330 OF 2018
(arising out of SLP(Crl.) No.2440 of 2018)

REENA HAZARIKA Vs STATE OF ASSAM

NAVIN SINHA, J.
Dated:OCTOBER 31, 2018.

Leave granted.
2. The appellant is the wife of the deceased convicted under
Section 302 I.P.C. and sentenced to life imprisonment with fine
of Rs.1,000/and
in default, imprisonment for one month.
3. The deceased resided along with the appellant and his
minor daughter CW1,
Miss Puja Hazarika, aged about 9 years,
in the tenanted premises belonging to PW1
Manoj Kumar Deka,
PW2
Dipen Deka and PW3
Bhrigumoni Deka, who are
brothers. The appellant is stated to have assaulted the deceased
1
in the intervening night of 10.05.2013/11.05.2013. PWs. 1, 2
and 3 are stated to have heard noises and on going there, found
the deceased with head injury attributed to a fall, but that the
deceased was otherwise alright. They were unable to take him to
the hospital because of rains and the unavailability of an
ambulance. According to the postmortem
report proved by PW6,
Dr. Ritu Raj Chaliha the deceased had the following injuries
on his person :(
i) Chop wound of size 11 cm x 2 cm x muscle
deep present on left side of cheek 6 cm medial
tragus and 1 cm above angle of mandible.
(ii) Chop wound of size 9 cm x 2 cm x muscle deep
present back of occipital region.
(iii) Chop wound of size 4 cm x 2 cm x muscle deep
present on left side of forearm.
(iv) Laceration of size (5 x 4) cm present over left
wrist joint on posterior aspect.
(v) Chop wound of size (4 x 1) cm x muscle deep,
present over temporal region on right side.
(vi) Chop wound of size (6 x 2) cm of muscle deep
present over back of scapula.
(vii) Fracture of temporal bone on both sides.
All injuries were ante mortem and caused by moderately
heavy sharp cutting weapon and homicidal in nature.
2
4. The Trial Court and the High Court held that the present
was a case of circumstantial evidence. The last seen theory
establishes the presence of the appellant with the deceased at
night. Her unnatural conduct because she was not crying, she
was the assailant of the deceased.
5. Mr. Singh, learned counsel for the appellant submitted that
the courts below have erred in holding that the links in the chain
of circumstances stood established leading to the only
inescapable conclusion of the appellant being the assailant and
no other hypothesis of innocence being possible. PW6
has
deposed that the injuries were caused by a moderately heavy
sharp cutting weapon such as a dao, and that the fracture of the
temporal bone may have been caused by a moderate heavy
weapon. The recovery from the place of occurrence, as proved by
PW7
S.I. Nilomani Malakar, is of an ordinary knife used for
cutting betel nut, one feet long with a bent sharp point. Chop
injuries were not possible with the same. The alleged knife was
not even shown to PW6
for eliciting opinion if the injuries could
have been caused by the same.
3
6. Miss Diksha Rai, learned counsel for the State submitted
that the appellant was last seen with the deceased in the room,
confirmed by CW1.
The appellant has failed to offer any
explanation of the circumstances as to how the death occurred
at night. Her unnatural conduct in not even weeping was also
noticed by PW7.
The knife used for assault, and blood soaked
clothes of the deceased have also been recovered.
7. We have considered the respective submissions, the orders
of the courts below, as also the evidence available on record.
Normally this court under Article 136 of the Constitution, would
be reluctant in appeal to interfere with the concurrent findings of
two courts by reappreciating the facts and evidence. But in an
appropriate case, if this court finds that there has been
erroneous consideration and appreciation of facts and evidence,
leading to miscarriage of justice, this court is duty bound to
ensure that ultimately justice prevails. It is a well established
principle of criminal jurisprudence that several accused may go
free, but an innocent person should not be punished. In Anant
Chintaman Lagu v. State of Bombay, (1960) 2 SCR 460 this
court observed as follows :4
“16. Ordinarily, it is not the practice of this
Court to reexamine
the findings of fact
reached by the High Court particularly in a
case where there is concurrence of opinion
between the two Courts below. But the case
against the appellant is entirely based on
circumstantial evidence, and there is no direct
evidence that he administered a poison, and
no poison has, in fact been detected by the
doctor, who performed the postmortem
examination, or by the Chemical Analyser.
The inference of guilt having been drawn on
an examination of a mass of evidence during
which subsidiary findings were given by the
two Courts below, we have felt it necessary, in
view of the extraordinary nature of this case,
to satisfy ourselves whether each conclusion
on the separate aspects of the case, is
supported by evidence and is just and proper.
Ordinarily, this Court is not required to enter
into an elaborate examination of the evidence,
but we have departed from this rule in this
particular case, in view of the variety of
arguments that were addressed to us and the
evidence of conduct which the appellant has
sought to explain away on hypotheses
suggesting innocence. These arguments, as we
have stated in brief, covered both the factual
as well as the medical aspects of the case, and
have necessitated a close examination of the
evidence once again, so that we may be in a
position to say what are the facts found, on
which our decision is rested.”
8. The essentials of circumstantial evidence stand well
established by precedents and we do not consider it necessary to
reiterate the same and burden the order unnecessarily. Suffice it
5
to observe that in a case of circumstantial evidence the
prosecution is required to establish the continuity in the links of
the chain of circumstances, so as to lead to the only and
inescapable conclusion of the accused being the assailant,
inconsistent or incompatible with the possibility of any other
hypothesis compatible with the innocence of the accused. Mere
invocation of the last seen theory, sans the facts and evidence in
a case, will not suffice to shift the onus upon the accused under
Section 106 of the Evidence Act,1872 unless the prosecution
first establishes a prima facie case. If the links in the chain of
circumstances itself are not complete, and the prosecution is
unable to establish a prima facie case, leaving open the
possibility that the occurrence may have taken place in some
other manner, the onus will not shift to the accused, and the
benefit of doubt will have to be given.
9. Before proceeding with the discussion further, we deem it
proper to notice that the appellant did not have the benefit of a
lawyer of her choice, both before the trial court and the High
Court, naturally because of some handicap. She had to be
provided legal assistance by the Legal Services Authority. This is
6
not to make any comment or observation on the nature of the
defence made available to the appellant, but only to notice her
handicap in establishing her innocence.
10. PW1
deposed that he was told by the deceased at about
11:00 p.m. on 10.05.2013 that he had suffered a head injury
because of a fall, and that the witness did not provide any first
aid to the deceased though he along with his brother PW2,
did
try to call an ambulance at about 12:00 am. Additionally, that
he did not see any other injuries on the deceased. On the
contrary, CW1
deposed that PW1
had applied Dettol to the
wounds of the deceased.
11. Contrary to the statement of PW1,
his brother, PW2
deposed that he was woken up at about 23
a.m. by the
appellant who was crying and told him that her husband had
suffered head injury. The deceased is then stated to have
himself told the witness that the injury was not serious. The
contradiction in the evidence of PW1
and PW2
is further
compounded by the third brother PW3,
deposing that PW2
informed him of the injury to the deceased at 12.00 am. All the
7
three witnesses have deposed that the deceased was of heavy
built, because of which they were unable to take him to the
hospital on the motorcycle,
for treatment. The post mortem
however recites that the deceased was of average built. If the
deceased had merely suffered a head injury by fall and was
otherwise fit to talk to the witnesses, we see no reason why he
could not have been taken to the hospital on a motorcycle.
While PW3
states that the deceased was wearing clothes, the
postmortem
report shows that the deceased was brought in an
underwear only. The clothes of the deceased were found near
the well in a gunny bag. But PW7
did not consider it necessary
to have the blood group examined by the FSL, which in our
opinion in the facts of the case is a major lapse.
12. The postmortem
report makes it evident that the chop
wounds could not have been caused by the small knife alleged to
have been recovered. Fracture of the temporal bone with the
knife was an impossibility. PW6
in the deposition ruled out that
the injury could be caused by a fall. The post mortem did not
find any alcohol in the body of the deceased. The witness also
opined that injury no. 4 could have been caused while the
8
deceased may have attempted to save himself from assault. The
multiple injuries could certainly not have been caused by one
person and tells an entirely different story by itself that the
assailants may have been more than one. The chop injuries
were possible by a moderate and heavy weapon like a dao. In
our opinion also, if the deceased was of average built, it is
difficult to accept, according to normal prudence and human
behaviour and capacity, that the appellant being a woman, could
have made such severe and repeated assault on the deceased,
who was her husband, with a small knife, without any resistance
and suffered no injury herself.
13. PW7
claimed to have found a knife with the smell of Dettol.
Even if the knife had been wiped to erase traces of blood the
wooden handle could have revealed much if it had been sent to
the FSL. The witness again offers no explanation why he did not
do so. No bottle of Dettol has been recovered. There is
absolutely no evidence that the deceased would often assault the
appellant and the minor child in a drunken condition. The fact
that PW7
did not notice tears in the eyes of the appellant,
deemed as unnatural conduct by the courts below, cannot be
9
sufficient to draw an adverse inference of guilt against the
appellant. The appellant being in a helpless situation may have
been stunned into a shock of disbelief by the death of her
husband. It is not uncommon human behaviour that on the
death of a near relative, or upon witnessing a murderous
assault, a person goes into complete silence and stupor showing
no reaction or sensibility. We also find it difficult to believe and
rely upon the evidence of CW1
primarily because of her
minority. If the deceased had been assaulted by the appellant in
the room at night, it would certainly have led to noise and shouts
and the witness could not have possibly slept throughout
without waking up.
14. PW1
deposed that he informed the police the next
morning at about 8:00 a.m. But PW7
has deposed that
information was given at the police station by PW1
at about
12:00 p.m. on 11.05.2013 and the General Diary entry no. 452
made in the police station at 12.20 p.m., and the F.I.R.
registered at 7:45 p.m. These are suspicious circumstances
which leaves enough time for planning after thinking for the
manner in which allegations were to be made for deflecting that
10
the occurrence took place in a manner other than what may
have happened actually.
15. In the background of the aforesaid discussion regarding the
nature of evidence and the manner of its appreciation, we deem
it proper to set out the English translation in the paper book of
defence taken by the appellant under Section 313 Cr.P.C. as
follows:“
Ans: On the date of occurrence at about 88:
30 while I have returned from my work at
Satgaon, I saw that my husband was lying in
the room with bleeding injury. On my cry,
Manoj Deka and his brothers come there with
drink in the hand of one brother. Thereafter I
saw Manoj Deka was putting Dettol on the
wound of my husband. I also rang to 108
ambulance. When, I wanted to call police
Manoj Deka, snatched the phone from me.
On my crying neighbouring peoples arrived
there. I tried to take my husband to medical
but due to noncooperation
my Manoj Deka
and others, I failed to take him to Medical. On
that night at about 9.30 expired and Manoj
Deka and other neighbours were sitting.
Subsequently Manoj Deka has falsely
implicated me. I have the suspicion that my
husband was physically assaulted earlier at
some place by Mintu Nath, Dipak Das and
Jeetu Deka while taking liquor and brought by
husband on injured condition and laid in the
room. I also saw the lock of my room in
broken condition, when I arrived here. I have
not killed my husband. I am innocent.”
11
PW2
has acknowledged in his evidence that he would have
drinks with the deceased. According to the postmortem
report, the stomach of the deceased was found empty,
suggesting that the assault had taken place earlier in the
evening contrary to the evidence of PWs. 1, 2 and 3 suggesting
the assault in the late hours of the night by which time the
deceased would undoubtedly have had his dinner.
16. Section 313, Cr.P.C. cannot be seen simply as a part of
audi alteram partem. It confers a valuable right upon an
accused to establish his innocence and can well be considered
beyond a statutory right as a constitutional right to a fair trial
under Article 21 of the Constitution, even if it is not to be
considered as a piece of substantive evidence, not being on oath
under Section 313(2), Cr.P.C. The importance of this right has
been considered time and again by this court, but it yet remains
to be applied in practice as we shall see presently in the
discussion to follow. If the accused takes a defence after the
prosecution evidence is closed, under Section 313(1)(b) Cr.P.C.
the Court is duty bound under Section 313(4) Cr.P.C. to consider
the same. The mere use of the word ‘may’ cannot be held to

confer a discretionary power on the court to consider or not to
consider such defence, since it constitutes a valuable right of an
accused for access to justice, and the likelihood of the prejudice
that may be caused thereby. Whether the defence is acceptable
or not and whether it is compatible or incompatible with the
evidence available is an entirely different matter. If there has
been no consideration at all of the defence taken under Section
313 Cr.P.C., in the given facts of a case, the conviction may well
stand vitiated. To our mind, a solemn duty is cast on the court
in dispensation of justice to adequately consider the defence of
the accused taken under Section 313 Cr.P.C. and to either
accept or reject the same for reasons specified in writing.
17. Unfortunately neither Trial Court nor the High Court
considered it necessary to take notice of, much less discuss or
observe with regard to the aforesaid defence by the appellant
under Section 313 Cr.P.C. to either accept or reject it. The
defence taken cannot be said to be irrelevant, illogical or fanciful
in the entirety of the facts and the nature of other evidence
available as discussed hereinbefore. The complete nonconsideration
thereof has clearly caused prejudice to the

appellant. Unlike the prosecution, the accused is not required to
establish the defence beyond all reasonable doubt. The accused
has only to raise doubts on a preponderance of probability as
observed in Hate Singh Bhagat Singh vs. State of Madhya
Bharat, AIR 1953 SC 468 observing as follows :“
26. We have examined the evidence at length
in this case, not because it is our desire to
depart from our usual practice of declining to
the assess, the evidence in an appeal here,
but because there has been in this case a
departure from the rule that when an accused
person but for the word a reasonable defence
which is likely to be true,…… then the burden
on the other side becomes all the heavier
because a reasonable and probable story
likely to be true friend pitted against AV and
vacillating case is bound to raise a reasonable
doubts of which the accused must get the
benefit….”
A similar view is expressed in M. Abbas vs. State of Kerala,
(2001) 10 SCC 103 as follows :“
10….On the other hand, the explanation
given by the appellant both during the crossexamination
of prosecution witnesses and in
his own statement recorded under Section
313 CrPC is quite plausible. Where an
accused sets up a defence or offers an
explanation, it is well settled that he is not
required to prove his defence beyond a
reasonable doubt but only by preponderance
of probabilities….”

18. The entirety of the discussion, in the facts and
circumstances of the case, the nature of evidence available
coupled with the manner of its consideration, leaves us satisfied
that the links in the chain of circumstances in a case of
circumstantial evidence, cannot be said to have been established
leading to the inescapable conclusion that the appellant was the
assailant of the deceased, incompatible with any possibility of
innocence of the appellant. The possibility that the occurrence
may have taken place in some other manner cannot be
completely ruled out. The appellant is therefore held entitled to
acquittal on the benefit of doubt. We accordingly order the
acquittal and release of the appellant from custody forthwith,
unless wanted in any other case.
19. The appeal is allowed.
…………….........J.
[R.F. NARIMAN]
……...................J.
[NAVIN SINHA]
NEW DELHI
OCTOBER 31, 2018.

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