Supreme court: S.161 CrPC Statement Of Accused Implicating Co-Accused Cannot Be Considered At Stage Of Regular Or Anticipatory Bail

53. From the above exposition of law, the following emerges:

(i) A person who is Accused of an offence or named in the first information report, can be examined by the police and his statement may be recorded Under Section 161 of the Code of Criminal Procedure, as held in Nandini Satpathy (supra).

(ii) A statement of an Accused Under Section 161 of the Code of Criminal Procedure, would ordinarily be of two kinds, it may be inculpatory in nature or may be exculpatory in nature.

(iii) An inculpatory statement again may be in the form of an admission or a confession. If such statement admits either a gravely incriminating fact or substantially all the facts which constitute the offence, respectively, as held in Pakala Narayana Swami (supra), then it amounts to confession.

(iv) Where such police statement of an Accused is confessional statement, the rigour of Section(s) 25 and 26 respectively will apply with all its vigour. A confessional statement of an Accused will only be admissible if it is not hit by Section(s) 24 or 25 respectively and is in tune with the provisions of Section(s) 26, 28 and 29 of the Evidence Act respectively. In other words, a police statement of an Accused which is in the form of a confession is per se inadmissible and no reliance whatsoever can be placed on such statements either at the stage of bail or during trial. Since such confessional statements are rendered inadmissible by virtue of Section 25 of the Evidence Act, the provision of Section 30 would be of no avail, and no reliance can be placed on such confessional statement of an Accused to implicate another co-Accused.

(v) A confessional statement of one Accused implicating another co- Accused may be taken into consideration by the court against such co- Accused in terms of Section 30 of the Evidence Act, only at the stage of trial, where (1) the confession itself was relevant and admissible in terms of the Evidence Act; (2) was duly proved against the maker; (3) such confessional statement incriminates the maker along with the co- Accused and; (4) both the Accused persons in question are in a joint trial for the same offence.

(vi) Furthermore, because such confessional statements are not "evidence" in terms of Section 3 of the Evidence Act as held in Bhuboni Sahu (supra), such a confession as held in Kashmira Singh (supra) can only be pressed into consideration by the court as a Rule of prudence, to lend assurance to the other evidence against such co-Accused, provided that aforesaid ingredients or conditions of Section 30 read with Section(s) 24 to 29 of the Evidence Act, are fulfilled.

(vii) Where the police statement of an Accused is in the form of an admission, such inculpatory statement even if it implicates another co-Accused cannot be taken into consideration against such co-Accused in terms of Section(s) 17 read with 21 of the Evidence Act, as doing so would militate against the general principle, that an admission may be given as evidence against the maker alone. The exceptions to the aforesaid general principle carved out under the Evidence Act, do not permit the usage of such admission against a co-Accused in any scenario whatsoever.

(viii) Where the police statement of the Accused is an exculpatory statement i.e., it is neither a confession nor an admission, the statement being one Under Section 161, would immediately attract the bar Under Section 162 of the Code of Criminal Procedure, and the same may be used only for the very limited purpose provided in the Proviso for the purpose of contradiction or re- examination of such Accused person alone, as held in Mahabir Mandal (supra). Even if such exculpatory statement of one Accused, implicates another co-Accused, the same cannot be taken into consideration against such co-Accused, as there can be no credibility attached to an exculpatory statement of an Accused implicating another co-Accused, more particularly because it is neither required to be given on oath, nor in the presence of the co-Accused, the same cannot be tested by cross- examination and the exculpatory nature of such statement militates against the foundational principle that permits taking into consideration a statement of one Accused person against another co-Accused as explained in Bhuboni Sahu (supra), i.e., 'when a person admits guilt to its fullest extent either to a certain incriminating fact or substantially all the facts which constitute the offence, and in doing so exposes himself and in the process other co-Accused persons to the pain and penalties provided for the guilt, there exists a sincerity and semblance of sanction for the truthfulness of such statement'.

(ix) Although a handful of decisions of this Court such as Indresh Kumar (supra) and Salim Khan (supra) have held that statements Under Section 161 of the Code of Criminal Procedure ought to be looked into by the courts at the stage of anticipatory or regular bail for the purpose of ascertaining whether a prima-facie case has been made out against the Accused and the nature and gravity of the allegations, yet the aforesaid Rule only applies insofar as such statements Under Section 161 were made by witnesses and not Accused persons. A statement of an Accused Under Section 161 of the Code of Criminal Procedure stands on a completely different footing from a police statement of a witness. As already discussed in the foregoing paragraphs, if the police statement of an Accused is inculpatory in nature, its more in the form of a confession or admission rather than a statement, and the relevant provisions of Section(s) 17 to 30 of the Evidence Act, will apply with all its vigour. Where such statement of the Accused is exculpatory in nature, the same can be looked into by the courts only for the limited purpose of either culling out the stance of the Accused person qua the allegations or for contradicting the Accused, if the Accused chooses to be examined as a witness in terms of Section 315 of the Code of Criminal Procedure. However, such exculpatory statement insofar as it implicates another Accused person cannot be looked into by the courts, as such statements by their nature cannot be tested by cross-examination if such Accused person declines to be a witness in the trial in terms of Section 315 of the Code of Criminal Procedure, and because such exculpatory statement has no credibility as explained in Bhuboni Sahu (supra).

(x) Before the court looks into the police statement of any person Under Section 161 of the Code of Criminal Procedure for the purpose of anticipatory or regular bail, the court must first ascertain whether such person is actually a witness or an Accused person, or likely to be an Accused person in respect of the offence(s) alleged. This is because, there may be situations where a person while giving his statement Under Section 161 of the Code of Criminal Procedure may not be an Accused, but later arrayed as one. In such a scenario the courts must be mindful of the fact that because the investigation is still ongoing, it is more likely for a person who was originally a witness to happen to be later arrayed as an Accused person. If the court was to blindly place reliance on statement of such a person merely because he is not named in the first information report, without first seeing whether such person is likely to be arrayed as an Accused or not, it would lead to an absurd situation where the statement of such a person may be relied upon up until such person is arrayed as an Accused. We also caution the courts, where it emerges from the material on record, that such a person is likely to be arrayed as an Accused, the courts should refrain from expressing any such opinion so that the investigation is not prejudiced in any manner.

 IN THE SUPREME COURT OF INDIA

Special Leave Petition (Criminal) Nos. 7532 of 2025, 7533/2025 and 7534/2025

Decided On: 16.05.2025

P. Krishna Mohan Reddy Vs. The State of Andhra Pradesh

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

 Citation: 2025 INSC 725,MANU/SC/0737/2025

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Can the Court Infer the Accused's Intent to Commit Murder if They Claim the Right of Private Defence under their statement U/S 313 of CRPC?

 Ext. 96 refers to inculpatory admissions as well as seeks to bring out exculpatory circumstances. The statement has to be read in its entirety. The inculpatory admissions emerging from this statement against the Appellant are (i) his presence at the spot and (ii) sustaining of injuries by the victim and the other prosecution witnesses while the Appellant, as claimed, was attempting to save himself from getting injured. The exculpatory circumstances sought to be established are (i) the Appellant's description of the act complained of as involuntary, which was compelled by inevitable circumstances and not guided by choice and, (ii) sustaining of injury by him in the same transaction. {Para 19}

20. In view of the inculpatory admissions appearing from Ext.96, the trial court, and the High Court while concurring with the trial court, need not have laboured much to convict the Appellant as the person instrumental for the homicidal death of the victim by discussing the evidence led in course of the trial in details. The Appellant's presence at the spot and the victim and the injured witnesses sustaining injury in course of the scuffle could be held to have been established from Ext.96 itself. However, by not looking into Ext. 96 with the other evidence on record, what the trial court omitted to consider is, whether the prosecution was justified in claiming that the offensive act amounted to culpable homicide amounting to murder or whether the Appellant being guilty of culpable homicide not amounting to murder, deserved punishment Under Section 304, Part II, Indian Penal Code. True it is, the trial court considered the arguments advanced on behalf of the Appellant that (i) he had "exercised his right of private defence", and though (ii) "he exceeded such right", (iii) the present case at the most would fall Under Section 304, Part II, Indian Penal Code; but, it proceeded to overrule such arguments by relying on the oral testimony of P.W.s 2 to 4. In the process, the trial court failed to appreciate the defence version as spelt out in Ext.96, which appears to us to be plausible. A senior citizen who visits Katol from Nagpur, his place of residence, for collecting rent, having the intention of murder would possibly not attempt to do so in broad daylight and in the presence of witnesses, and that too with a weapon such as a knife. Reading Ext.96 as it is, we do find it probable that there could have been provocation at the instance of the victim, who allegedly indulged in spitting on the Appellant coupled with verbal abuse, whereafter P.W.2 and later P.W.s 3 and 4 sprang into action, resulting in a scuffle where both parties indulged in inflicting injuries on each other resulting in an unwanted loss of life.

22. Be that as it may, we have no difficulty in proceeding to record our conclusions resting on the evidence on record as well as Ext.96, which the Appellant voluntarily filed before the trial court as his response to the incriminating materials appearing in the evidence against him while being questioned Under Section 313, Code of Criminal Procedure, for whatever it is worth. It appears to us to be a fair and proper disclosure of the Appellant's version as to what transpired on that fateful evening. The offensive act committed by the Appellant has to be appreciated in the surrounding circumstances noted below.

23. Though there is no specific admission by the Appellant that he had stabbed the victim or the other injured witnesses, reading of the contents of Ext.96 does evince an act of retaliation spurred by sudden provocation resulting in a quarrel as well as a scuffle which ultimately, most unfortunately, cost the victim his life and left some others injured. The Appellant too sustained injuries in the scuffle and there is evidence on record that one of the injuries was grievous, yet, the criminal law was surprisingly not set in motion to bring to book those responsible for inflicting such injury. It was in a sudden quarrel, which could have been provoked by the victim and P.W.2, that blows followed from each side. Most importantly, the circumstances in which the incident occurred does clearly negate any suggestion of premeditation in mind. That apart, it cannot be overlooked that while the victim was middle-aged, the Appellant was in his late fifties. At the time of the alleged incident, apart from P.W.s 2 and 3, Shankarrao Fartode, Umrao Charde, Ramesh Korde (all three not examined) were present at the spot, as per the version of P.W.2. It is indeed improbable that in the presence of such persons, the Appellant wielding a weapon like a knife would come to the spot with an intention to commit the offence of murder overpowering all of them without any sufficient reason or provocation. In our opinion, the trial court lacked in objectivity by not examining the facts and circumstances as to whether the situation was such as is likely to reasonably cause an apprehension in the mind of the Appellant that there was imminent danger to his body, of either death or grievous hurt being caused to him, if he did not act in private defence. To impute intention to cause death or the intention to cause that particular injury, which proved fatal, in these circumstances seems to be unreasonable.

24. Exception 4 to Section 300, Indian Penal Code ordains that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The explanation thereto clarifies that it is immaterial in such cases which party offers the provocation or commits the first assault. Four requirements must be satisfied to invoke this exception, viz. (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel or unusual manner.

25. Taking an overall view of the matter, we are inclined to the opinion that the Appellant was entitled to the benefit of Exception 4 to Section 300, Indian Penal Code.

26. The upshot of the above discussion is that this is not a case where the Appellant could be convicted for murder of the victim. His conviction for murder and sentence of life imprisonment are liable to be set aside. It is ordered accordingly.

27. However, we think it proper to convict the Appellant Under Section 304, Part II, Indian Penal Code. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 211 of 2023

Decided On: 03.03.2023

Premchand  Vs. The State of Maharashtra

Hon'ble Judges/Coram:

S. Ravindra Bhat and Dipankar Datta, JJ.

Author: Dipankar Datta, J.

Citation: MANU/SC/0209/2023.

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Whether trial against accused is vitiated if the court fails to consider his written statement filed U/S 313 of CRPC?

  Once a written statement is filed by the Accused Under Sub-section (5) of Section 313, Code of Criminal Procedure and the court marks it as an exhibit, such statement must be treated as part of the Accused's statement Under Sub-section (1) read with Sub-section (4) thereof. In view of the latter Sub-section, the written statement has to be considered in the light of the evidence led by the prosecution to appreciate the truthfulness or otherwise of such case and the contents of such statement weighed with the probabilities of the case either in favour of the Accused or against him. {Para 17}

18. This is a case where it does not appear from the records that the written statement (Ext. 96) engaged the attention of both the trial court as well as the High Court. Applying the principles noted above and for the reasons discussed below, there can be no quarrel that non-consideration of Ext. 96, to a limited extent, in relation to recording of conviction and consequently imposition of sentence, has rendered it vulnerable to interference.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 211 of 2023

Decided On: 03.03.2023

Premchand  Vs. The State of Maharashtra

Hon'ble Judges/Coram:

S. Ravindra Bhat and Dipankar Datta, JJ.

Author: Dipankar Datta, J.

Citation: MANU/SC/0209/2023.

Read full Judgment here: Click here

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Supreme Court summarizes 10 Important principles regarding statement of accused U/S 313 of CRPC

15. What follows from these authorities may briefly be summarized thus:

a. Section 313, Code of Criminal Procedure [Clause (b) of Sub-section 1] is a valuable safeguard in the trial process for the Accused to establish his innocence;

b. Section 313, which is intended to ensure a direct dialogue between the court and the Accused, casts a mandatory duty on the court to question the Accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him;

c. when questioned, the Accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court;

d. the Accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences;

e. an Accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him;

f. the explanations that an Accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the Section 313 statement(s);

g. statements of the Accused in course of examination Under Section 313, since not on oath, do not constitute evidence Under Section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case;

h. statement(s) of the Accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission; and

i. if the Accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements;

j. any failure to consider the Accused's explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.

16. Bearing the above well-settled principles in mind, every criminal court proceeding under Clause (b) of Sub-section (1) of Section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the Accused and to prepare relevant questions to extend opportunity to the Accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of Section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the Accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended Section 313 in 2009 and inserted Sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of Sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the Accused elects to come forward with evasive denials or answers questions with stereotypes like 'false', 'I don't know', 'incorrect', etc. Many a time, this does more harm than good to the cause of the Accused. For instance, if facts within the special knowledge of the Accused are not satisfactorily explained, that could be a factor against the Accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one's conduct or a version different from the prosecution version, without being obliged to face cross-examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise Under Section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the Accused to explain the circumstances put to him Under Section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 211 of 2023

Decided On: 03.03.2023

Premchand  Vs. The State of Maharashtra

Hon'ble Judges/Coram:

S. Ravindra Bhat and Dipankar Datta, JJ.

Author: Dipankar Datta, J.

Citation: MANU/SC/0209/2023,(2023) 5 SCC 522.

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How to appreciate evidence if accused has put forth a plausible version in his statement U/S 313 of CRPC?

 In the present case, the courts below failed to scrutinize the defence version put forward by the appellantaccused in his Section 313 statement. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. (See Asraf Ali v. State of Assam, (2008) 16 SCC 328). {Para 25}

26. The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the course of trial. A reasonable opportunity entails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation.

27. If all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not able to put forth a rational and intelligible explanation. Such, exercises which defeats fair opportunity are nothing but empty formality. Nonfulfilment of the true spirit of Section 313 may ultimately cause grave prejudice to the accused and the Court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion.

28. Such an omission does not ipso facto vitiate the trial, unless the accused prove that grave prejudice has been caused to him. Although the counsel on behalf the accused has not proved any serious prejudice caused to him due to failure of the Court in framing individual circumstances; however, considering the long pendency of the matter and the right of the accused to have a fair and expeditious trial, we propose to proceed and decide the matter on its own merit.

29. It is an established principle of criminal law that the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution. Where an accused sets up a defence or offers an explanation, it is wellsettled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. [See M. Abbas v. State of Kerala, (2001) 10 SCC 103]. Further, it has been held by this Court in Parminder Kaur v. State of Punjab, (2020) 8 SCC 811 that “once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defence plea”.

30. Moreover, it is the solemn duty of the courts below to consider the defence of the accused. The same must be considered with caution and must be scrutinised by application of mind by the judge. The Court may accept or reject the same, however it cannot be done cursorily. The reasoning and the application of mind must be reflected in writing. However, from the observations extracted above, it is clear that the courts below have failed to undertake this solemn duty. Rather, the evidence of the accused has been dealt by the Court in a casual manner.

31. In the above circumstances, when there is absence of independent evidence corroborating the statements made by complainant, serious doubts regarding the recovery of the alleged motorcycle and the country made pistol, no connection proved between the alleged recovered items and the alleged incident, and the plausible version put forward by the accusedappellant in his Section 313 statement has not been satisfactorily responded to by the prosecution, the case against the accusedappellant cannot be sustained.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 704 OF 2018

 JAI PRAKASH TIWARI Vs STATE OF MADHYA PRADESH

Coram: N.V. RAMANA; CJI., KRISHNA MURARI; J., HIMA KOHLI; J. 

Dated: AUGUST 04, 2022 

Author: N.V. RAMANA, CJI.

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Can the court consider an additional circumstance against the accused if he only says he was falsely implicated in his statement under S 313 of CRPC?

 Even in the statement of the appellant recorded under

Section 313 of the Code by the learned Trial Court, the appellant

could not say anything except that he has been falsely involved in

this crime. This is also an additional circumstance in the chain of

circumstances established by the prosecution against the appellant.

(See: Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10

SCC 681). {Para 40}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

Criminal Appeal No.493/2018

Mithun @ Dhananjay Khamban Nisad, C Vs State of Maharashtra

CORAM : M.S. SONAK &

PUSHPA V. GANEDIWALA, JJ.

DATE : 29-11-2021.

 (Per: Pushpa V. Ganediwala, J.)

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Whether court can convict accused based on his explanation in statement U/S 313 of CRPC?

 The inconsistency and discrepancy in the evidence of the

prosecution witnesses casts a serious doubt on the prosecution

case. The prosecution having failed to establish the guilt of

the accused persons beyond reasonable doubt, the conviction

cannot be based solely on the explanation given by the

accused No.1 in his statement under Section 313 of the

Criminal Procedure Code. {Para 16}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1060 OF 2019

 Jabbar Isak Shaikh Vs  V/s.  The State of Maharashtra 

CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATE : 6th DECEMBER, 2021

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Whether the court should ask questions to accused U/S 313 of CRPC in respect of every piece of prosecution evidence?

We have also perused the questions put Under Section 313 of the Code of Criminal Procedure and answers given by the Accused which are on the record. We do not find that in the present case spirit of Section 313 is forgotten, nor it can be said that the court has not complied with said provision. Sub-section (b) of Section 313 requires the court to question the Accused generally on the case after the prosecution evidence is over. It does not require to re-write hundred pages evidence in another hundred pages to record the statement of the Accused under the Section. It should be borne in mind that entire evidence has been recorded in the presence of the Accused or his counsel, and before he enters into his defence, what is required is that he is generally asked on the case, after the prosecution evidence is over, to explain any circumstances in the evidence against him. It does not require that each and every sentence of the prosecution evidence has to be re-written and read over once again while examining the Accused Under Section 313 of the Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 31 and 32 of 2008

Decided On: 11.08.2017

 Suresh Chandra Jana and Ors. Vs.  The State of West Bengal and Ors.

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When court should not entertain issue of prejudice to accused due to his inadequate examination U/S 313 of CRPC?

But equally there cannot be a generalised presumption of prejudice to an Accused merely by reason of any omission or inadequate questions put to an Accused thereunder. Ultimately it will be a question to be considered in the facts and circumstances of each case including the nature of other evidence available, the kind of questions put to an Accused, considered with anything further that the Accused may state in his defence. In other words, there will have to be a cumulative balancing of several factors. While the rights of an Accused to a fair trial are undoubtedly important, the rights of the victim and the society at large for correction of deviant behaviour cannot be made subservient to the rights of an Accused by placing the latter at a pedestal higher than necessary for a fair trial.

In Sukha v. State of Rajasthan, MANU/SC/0026/1956 : 1956 SCR 288, it was observed as follows:

35. .....We have recently decided that we will be slow to entertain question of prejudice when details are not furnished; also the fact that the objection is not taken at an early stage will be taken into account.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 937, 938 and 939 of 2011

Decided On: 04.10.2019

 Fainul Khan Vs.  State of Jharkhand and Ors.

Hon'ble Judges/Coram:

Navin Sinha and B.R. Gavai, JJ.

Citation: AIR 2019 SC 4858

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NOTES ON EXAMINATION OF ACCUSED U/S 313 OF CRPC

S 313 of CRPC- 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 given 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 witness 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 court has dispensed with personal attendance of accused,it may also dispense with his examination under Clause (b).

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Whether accused is entitled to be acquitted if provisions of S 313 of CRPC is not properly complied?

It was further contended by the learned Counsel for the Respondents that material questions regarding marriage, on which the prosecution had allegedly relied upon, were not put to the accused Under Section 313 Code of Criminal Procedure, thereby causing great prejudice to them. We feel that there is no weight in this submission of the learned Counsel for the Respondents since the purpose of Section 313 is only to bring the attention of the accused to all the inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. As has been succinctly held by this Court in Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan MANU/SC/0468/2013 : (2013) 5 SCC 722:

In a criminal trial, the purpose of examining the accused person Under Section 313 Code of Criminal Procedure, is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation.

49. We feel that no such prejudice has been caused to the accused on account of the failure of this Court to examine them Under Section 313 on the facts alleged by the prosecution since they were not incriminating in nature. In any case, Nar Singh v. State of Haryana MANU/SC/1004/2014 : (2015) 1 SCC 496, is an authority for the proposition that accused is not per se entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1482 of 2013

Decided On: 20.10.2016

 Yogesh Singh Vs.  Mahabeer Singh and Ors.

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Whether accused will be acquitted if certain questions are not asked in his Statement U/S 313 of CRPC?

It was further contended by the learned counsel for the respondents that material questions regarding marriage, on which the prosecution had allegedly relied upon, were not put to the accused under Section 313 Cr.P.C., thereby causing great prejudice to them. We feel that there is no weight in this submission of the learned counsel for the respondents since the purpose ofSection 313 is only to bring the attention of the accused to all the inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. As has been succinctly held by this Court in Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, (2013) 5 SCC 722:

“In a criminal trial, the purpose of examining the accused person under Section 313Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation.”

49. We feel that no such prejudice has been caused to the accused on account of the failure of this Court to examine them under Section 313 on the facts alleged by the prosecution since they were not incriminating in nature. In any case, Nar Singh Vs. State of Haryana, (2015) 1 SCC 496, is an authority for the proposition that accused is not per se entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Cr.P.C.

Reportable

Supreme Court of India

Yogesh Singh vs Mahabeer Singh & Ors on 20 October, 2016

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Whether trial will be vitiated if statements U/S 313 of CRPC of different accused are taken on different dates?

According to the learned counsel for the accused No.3, a joint

statement of all the accused was recorded by the Trial Court under

Section 313,Cr.P.C. This contention, in our opinion, is ill-founded.

We have examined the record and found that separate statement

under Section 313 of each accused has been recorded. It is a

different matter that their statements have been recorded in part on

different dates. That, in our opinion, does not vitiate the trial. Had it

been a case of all questions put to all the accused jointly and one

statement recorded by the Trial Court, it may have become

necessary for us to consider this argument. In the present case, we

find that separate statement of each accused under Section 313,

has been recorded on different dates. That is substantial

compliance of Section 313, Cr.P.C.

 [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 467/2010

Kishore Bhadke Vs. State of Maharashtra 

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Whether evidence relating to discovery becomes inadmissible if statement made by accused is not recorded?

Mr. Apte, the learned Counsel for the accused thereafter placed his reliance on the decision of the Supreme Court in the case of Niranjan Panja Vs. State of West Bengal reported in MANU/SC/0386/2010 : (2010) 6 SCC 525. Mr. Apte pointed out that in the said decision, it has been stated that for effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only that part of the statement which is not incriminating and leads to discovery which becomes admissible. In the said case, the recovery was not relied upon because the weapon which was allegedly produced by the accused was never produced before the Court and the prosecution has also not given any explanation whatsoever about the disappearance of this weapon. On carefully going through this decision, we find that again it deals with the aspect as to what part of statement made by the accused is admissible and the ratio in this decision is that only the part of the statement which is not incriminating and leads to discovery becomes admissible. The ratio of this decision does not appear to be that if a statement made by the accused is not recorded, evidence relating to the discovery becomes inadmissible. Mr. Apte also relied upon two judgments delivered by the Supreme Court namely (1) Aher Raja Khima Vs. State of Saurashtra reported in MANU/SC/0040/1955 : AIR 1956 SC 217 and (2) Vijender Vs. State of Delhi reported in MANU/SC/1224/1997 : (1997) 6 SCC 171. The said two decisions also deal with Section 27 of the Indian Evidence Act and the fact of discovery at the instance of accused.

28. It is well settled that the observations in a judgment cannot be de hors the point which is sought to be raised and the facts in which such point is raised. The observations cannot by themselves form the ratio of the decision. The ratio of the decision is to be drawn after considering the facts of the case, the point which is sought to be raised in the matter, the arguments which are canvassed in support of rival contentions in relation to such point, the discussion made by the Court with reference to such point canvassed by the counsel for the parties and the ultimate decision arrived thereupon. On taking into consideration all these aspects, the ratio of the decision has to be gathered. Any sentence in a judgment cannot be read as a statutory provision and the ratio in that regard is well settled by catena of decisions of the Apex Court. This has been clearly explained in different decisions of the Apex court including in the matter of Union of India & Ors. Vs. Dhanwanti Devi & Ors. reported in MANU/SC/1272/1996 : (1996) 6 SCC 44. It has clearly ruled therein that the decision is what it decides and not what follows from it.

29. In the decisions in the case of Prabho (supra) and Niranjan Panja (supra), the question did not arise specifically for consideration as to whether failure to record the information given by the accused would render the evidence relating to discovery by the accused inadmissible. However, this question arose directly for consideration before the Supreme Court in the case of Mohd. Arif alias Ashfaq Vs. State (NCT of Delhi) reported in MANU/SC/0919/2011 : (2011) 13 SCC 621 on which the learned APP has placed reliance. In the said case, the same question as in the present case specifically arose for consideration which can be seen from paragraph 169 of the judgment which reads thus:--

"Now coming to the second argument of failure to record the information, it must be held that it is not always necessary. What is really important is the credibility of the evidence of the investigating agency about getting information/statement regarding the information from the accused. If the evidence of the investigating officer is found to be credible then even in the absence of a recorded statement, the evidence can be accepted and it could be held that it was the accused who provided the information on the basis of which a subsequent discovery was made. The question is that of credibility and not the formality of recording the statement. The essence of the proof of a discovery under Section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was a relevant and material discovery which proceeded in pursuance of the information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the Court but if the Court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement and in pursuance of that information some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon."

30. In Suresh Chandra Bahri Vs. State of Bihar reported in 1955 Supp (1) SCC 80, no discovery statement was recorded by the investigating officer of the information supplied by the accused to him. Further no public witness was examined by the prosecution to support the theory that such an information was given by the accused to him in pursuance of which some material discovery was made. The Supreme Court, however, in spite of these two alleged defects, accepted the evidence of discovery against the accused on the basis of the evidence of the police officer. In the present case, we find the evidence of police officer PW-15 Bhimrao Waghmare to be wholly credible and reliable. He has not at all been shaken in his cross-examination. In such circumstances, we have no hesitation in relying on his evidence which shows that the spot where the dead body of the victim girl was buried was shown by the accused in presence of PW-8, the panch witness. In our view the decisions cited by the learned Counsel for the accused are of no help to him.

IN THE HIGH COURT OF BOMBAY

Confirmation Case No. 1 of 2015 and Criminal Appeal No. 923 of 2015

Decided On: 14.03.2016

 The State of Maharashtra
Vs.
 Vitthal Tukaram Atugade

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Leading Judgment on statement of accused U/S 313 of CRPC

Mr. I.B. Singh, learned Senior counsel has vehemently argued that in the statement of appellants recorded under Section 313 Cr.P.C., date time and place has been admitted and the manner in which the incident has taken place stands established by the evidence of two eye-witnesses. So the prosecution has been successful in proving its case beyond reasonable doubt. 
49. We have gone through the statement of accused persons some of the accused persons have replied the question no. (1) as true wherein the time of incident was mentioned as 11:00 a.m. In rural background, it is very common that the persons inspite of telling the exact time, tells the approximate time. Statement of the accused has to be considered as a whole. Appellants in reply to the question whether they also wants to say anything have stated the manner in which the incident has actually taken place according to them. According to their statements some of the appellants have stated that they are resident of a village situated at a distance of 11 km. situated in a different police station. Law is settled on the point that the prosecution must stand at its own legs and it cannot take the benefit of weakness of the defence. If the prosecution admits the statement under Section 313 Cr.P.C. then it has to be considered as a whole and it is not permissible under law to accept only one part of his statement, which supports the prosecution and to exclude the remaining part. 
50. Hon'ble the Apex Court in the case of Nagaraj Vs. State represented by Inspector of Police, Salem Town, Tamil Nadu reported in 2015 (4) SCC 739 has discussed the object of Section 313 Cr.P.C. and has held in paragraph no. 15 as under:- 
"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 Code of Criminal Procedure 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 the case of Nar Singh Vs. State of Haryana reported in (2015) 1 SCC 496 Hon'ble the Apex Court has considered the object of Section 313 Cr.P.C. and has observed in paragraph no. 16 as under:- 
"16. Undoubtedly, the importance of a statement Under Section 313 Code of Criminal Procedure, insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure, 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 Code of Criminal Procedure, 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." 
In the case of Jitendra Kumar Vs. State of Haryana reported in (2012) 6 SCC 204, Hon'ble the Apex Court has again occasioned to this consider this aspect and has observed in paragraph no. 73 as under:- 
"73. The proposition of law advanced by the counsel for the Appellants cannot be disputed. The fact of the matter remains that statement of Ratti Ram under Section 313 Code of Criminal Procedure is part of the judicial record and could be used against Ratti Ram for convicting him, if the prosecution had proved its case in accordance with law. ............." 

In the case of Balaji Gunthu Dhule Vs. State of Maharashtra reported in (2012) 11 SCC 685 wherein Hon'ble the Apex Court in paragraph no. 7 has observed as under:- 
"7. This Court in Manu Sao v. State of Bihar (2010) 12 SCC 310, has examined the vital features of Section 313 of the Code and the principles of law as enunciated by judgments, analysing the guiding factors for proper application and consequences that shall flow from the said provision and has observed: 
14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. .................."
ALLAHABAD HIGH COURT
Delivered on 26.05.2016 

 Case :- CRIMINAL APPEAL No. - 6 of 2009 

 Ashok Singh @ Mintu Singh (Pintu) 
Vs
State Of U.P. 

 Surendra Vikram Singh Rathore,J. 
 Anil Kumar Srivastava-II,J. 

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Whether trial will be vitiated if identical questions were put up to all accused under S 313 of CRPC?

Lastly, an attempt is also made by learned counsel for the Accused
to submit that, here in the case, the Trial Court has committed an error
while recording the statements of Accused under Section 313 of Cr.P.C.
as identical sets of questions were asked to the different Accused, which
practice is deprecated by our own High Court and the Apex Court also. In
support of his submission, he has relied upon the Judgment of this Court
in Swapnali @ Sapana Sharad Mahadik Vs. The State of Maharashtra,
(in Criminal Appeal No.415 of 2010, along with connected matters,
dated 22nd April 2015), in which various Judgments of Supreme Court
were relied upon. However, in our considered opinion, this Judgment
cannot be made applicable to the facts of the present case, because in
the said case the roles played by Accused Nos.5, 6 and 7, even according
to prosecution case, were different one. Accused Nos.5 and 6 were
guarding at the gate of the building and Accused No.7 passed on the
information to Accused No.5, who executed the plan. Accused No.7 was

not present on the spot. Hence, it was held that there was no meaning in
putting all 66 questions to each of the Accused. As against it, in the
present case, the role of all the Accused persons is identical. At-least, no
material is brought on record to show that they had played any different
role.
45. Moreover, no material is brought on record to show as to what and
in which manner the prejudice, if any, is caused to any of the Accused.
More so, all the Accused were aware of the accusation and the charge
against them. It is not the case of any of the Accused that some
incriminating evidence was not put to them and hence they could not offer
their explanation for the same; therefore, any prejudice was caused to
them. Conversely, each and every piece of incriminating material and
evidence is put up to them and their explanation for the same was
obtained. Only when there is omission to put up the incriminating material,
it can prove fatal to uphold the conviction. As a matter of fact, as per the
law laid down by the Apex Court in Shivaji Vs. State of Maharashtra,
1973 SCC (Cri.) 1033, mere omission to put incriminating material to the
Accused also, does not ipso facto vitiate the proceedings. The burden lies
on the Accused to prove that prejudice was occasioned by such defect.
46. Here in the instant case, the Accused have not succeeded in

bringing to the notice of this Court that any incriminating material was not
put up to them and it has resulted into causing prejudice to them in their
defence and thereby resulted in failure of justice. In such situation, the
above said authority is also not applicable to the facts of the present case.
47. Further, even assuming that the statements of all the Accused in the
present case are identical, considering the fact that the role played by
them is identical, the evidence against them was also, more or less, the
same in respect of the homicidal death and recovery of the gold
ornaments, it cannot become fatal. If some additional material is also put
to them in their statement recorded under Section 313 of Cr.P.C. than the
actual role played by them, there is no question of any prejudice being
caused to them, as the incriminating material appearing against each
individual Accused was also put up to them in addition to incriminating
material appearing against the other Accused. Thus, there was no
omission in putting up to the Accused any incriminating material and
hence no prejudice being caused to the Accused on account of mere
irregularity in recording the statements of the Accused, it has to be held
that this submission also fails.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.441 OF 2005

Futarmal Kapurji Borana  Vs  The State of Maharashtra 

CORAM : SMT. V.K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKAR-JOSHI, J.

PRONOUNCED ON : 17TH DECEMBER, 2015
Citation; 2016 ALLMR(CRI)901

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Whether accused will be acquitted if material evidence was not put to him in statement U/S 313 CRPC?

A two Judge Bench of the Supreme Court in Nar Singh Vs. State of Haryana [Crl. Appeal No. 2388/2014] held that “the victim of the offence or the accused should not suffer for laches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties”. The Court was considering the effect of non-compliance of mandatory provisions of Section 313 Cr.P.C while examining the Accused in a Criminal Trial. The Court explained the scope of S.313 as follows;

“There are two kinds of examination under Section 313 Cr.P.C. The first under Section 313 (1) (a) Cr.P.C. relates to any stage of the inquiry or trial; while the second under Section 313 (1) (b) Cr.P.C. takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular andoptional; but the latter is general and mandatory”.

After elaborately discussing various Judgments on the point the Court held as follows;

Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:- 

Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer; 

(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits. 

(iii) If the appellate court is of the opinion that noncompliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh; 

(iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.

It is also held that “While it is incumbent upon the Court to see that persons accused of crime must be given a fair trial and get speedy justice, in our view, every reasonable latitude must be given to those who are entrusted with administration of justice. In the facts and circumstances of each case, court should examine whether remand of the matter to the trial court would amount to indefinite harassment of the accused. When there is omission to put material evidence to the accused in the course of examination under Section 313 Cr.P.C., prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for laches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties”.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2388 OF 2014
(Arising out of S.L.P. (Crl.) No.8852 of 2013)
Nar Singh V State of Haryana 
Citation; AIR 2015 SC310
R. BANUMATHI, J .

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Supreme court : Accused should give explanation about incriminating circumstances in his statement u/s 313 of crpc

It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v State of Haryana, AIR 2013 SC 912).

24. This Court in Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181 held as under:

“Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which has come in evidence, put to him. A false explanation may be counted as providing a missing link for completing a chain of circumstances”. (Emphasis added)

Supreme Court of India

S.Govindaraju vs State Of Karnataka on 19 August, 2013

Author: . B Chauhan

Citation; 2013 CRLJ4710 SC

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Importance of statement of accused u/s 313 of crpc

Section 313 Cr.P.C. itself declares its object in explicit language that it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. At the same time it should be borne in mind that the provision is not intended to nail the accused to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word ; in clause (a) of sub-section (1) in s. 313 of the Code indicates that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. (Para 31 and 33)

Supreme Court of India

State Of Punjab vs Hari Singh And Ors. on 16 February, 2009

Bench: Arijit Pasayat, Mukundakam Sharma

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