LexASRAF ALI versus STATE OF ASSAM
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[2008] 10 S.C.R. 1115 ASRAF ALI A v. STATE OF ASSAM CRIMINAL APPEAL NO. 174 OF 2001 JULY 17, 2008 B' [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] Penal Code, 1860 - s. 304 (Part I) -Prosecution for mur- der - In the examination u/s 313 Cr.PC., circumstances re- lied upon by the prosecution not specifically brought to the c, notice of the accused - Conviction by trial court u/s 304 (Part I) - Conviction by High Court u/s 304 (Part II) - On appeal, held: Failure to bring the circumstances, specifically to the notice of the accused, whereon reliance was placed to find him guilty, has rendered the examination u/s 313 Cr.PC. an D ). empty formality - Trial stands vitiated on this ground alone - Conviction set aside - Code of Criminal Procedure, 1973 - s. 313. Code of Criminal Procedure, 1973- s. 313 (1) (b) - Ex- amination of accused - Failure to bring to the notice of the E accused, specifically, the circumstances relied on for convict- ing him - Effect of - Held: such failure would amount to seri- ous irregularity vitiating trial if it is proved that this has preju- diced the accused - This would amount to violation of prin- ciple of natural justice enshrined in the maxim audi alterem F. partem. Appellant-accused was prosecuted uls 302 IPC. Trial Court on the basis of circumstantial evidence convicted him u/s 304 (Part I) IPC. High Court observed that in the examination u/s 313 Cr.P.C., the circumstances relied upon G ............. by the prosecution were not specifically brought to the _...,_ notice of the accused. But, since no material prejudice was caused to the accused and he was absconding for long time and rancorous relationship between the de- 1115 H 1116 SUPREME COURT REPORTS [2008] 10 S.C.R. A ceased and the accused were established, his conviction was altered to one u/s 304 (Part II) IPC. Hence the present appeal. Allowing the appeal, the Court B HELD: 1. Section 313 Cr'.P.C. casts a duty on the Court to put in an enquiry or trial, questions to the accused for the purpose of enabling him to explain any of the circum- stances appearing in the evidence against him. It follows as necessary corollary therefrom that each material cir- C cumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious ir- regularity vitiating trial, if it is shown that the accused was prejudiced. The object of Section 313 Cr.P.C. is to estab- D lish a direct dialogue between the Court and the accused. Non-indication of inculpatory material in its relevant fac- ets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 Cr.P.C. is not a purposeless E exercise. [Para 13] [1124 G- 1125 D] 2. The provision is not intended to nail the accused to any position, but to comply with the most salutary prin- ciple of natural justice enshrined in the maxim audi alterem· partem. The word "may" in clause (a) of sub-section (1) in F Section 313 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 re- sult in a handicap to the accused and he can legitimately G claim that no evidence, without affording him the oppor- tunity to explain, can be used against him. A circumstance about which the accused was not asked to explain, can- not be used against him. [Para 17] [1126 H- 1127 C] 3. In the instant case, no witness has stated that on H the date of occurrence the accused had caused severe L ASRAF ALI v. STATE OF ASSAM 1117 [DR. ARIJIT PASAYAT, J.] injury to the deceased by assaulting him on the head from A behind. While in the examination of the accused u/s 313 Cr.P.C., the question to this effect has been put to the ac- cused, the circumstances which were relied upon by the trial Court to find the accused guilty were not specifically brought to the notice of the accused. Therefore, in es- B sence, his examination under Section 313 was rendered an empty formality. On that count alone, the impugned judgment of the High Court cannot be sustained and is set aside. The conviction recorded stands set aside.[Paras 19, 20 and 21] [1128 A-8] c Sharad Birdhichand Sarda v. State of Maharashtra 1984 (4) SCC 116; S. Harnam Singh v. The Sta
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