LexLIYAKAT AND ANOTHER versus STATE OF RAJASTHAN
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[2014] 12 S.C.R. 151 LIYAKAT AND ANOTHER v. STATE OF RAJASTHAN (Criminal Appeal No. 2079 of 2009) SEPTEMBER 26, 2014 [M.Y. EQBAL AND ABHAY MANOHAR SAPRE, JJ.] A B Code of Criminal Procedure, 1973 - s. 313 - Power to examine the accused - Order of conviction and sentence of accused persons under the provisions of Penal Code - High C Court remanded the matter to trial court for further trial holding that various material circumstances appearing against accused from the material on record were not put to accused u/s. 313 - On appeal, held: Defective examination of the accused uls. 313 does not by itself vitiate the trial - Burden D is on the accused to establish that by not apprising all the incriminating evidences and the inculpatory material that had come in the prosecution evidence against them, prejudice has been caused resulting in miscarriage of justice - On facts, the court had apprised the accused persons elaborately about E the incident that took place, the sequence of events and the material on evidence brought on record - No prejudice was done to accused persons nor they raised such question before the trial court - Thus, the order passed by the High Court is set aside - Matter remanded back to the High Court F to decide the appeal on merit. Disposing of the appeal, the Court HELD: 1.1. The purpose of examination of the accused u/s. 313 Cr.P .C. is to give the accused an G opportunity to explain the incriminating material which has come on the record. Sub-section (1) of Section 313 empowers the court to put such question to the accused as is considered necessary at the stage of the inquiry for 151 H 152 SUPREME COURT REPORTS (2014] 12 S.C.R. A trial. It imposes a duty and makes it mandatory on the court to question him generally on the prosecution having completed the examination of its witnesses and before the accused is called on to enter upon his defence. [Para 19) [163-C-F] B 1.2. A defective examination of the accused u/s. 313 Cr.P.C. does not by itself vitiate the trial. The burden is on the accused to establish that by not apprising all the incriminating evidences and the inculpatory material that had come in the prosecution evidence against them, C prejudice has been caused resulting in miscarriage of justice. [Para 26, 29] [168-F, G; 169-G-H] 1.3. The High Court erred in holding that the various material circumstances have not been put to the accused D in his statement u/s. 313 Cr.P.C. which vitiated the trial. It is an admitted fact that the accused persons immediately after the alleged suicide did not give any report to the police about her unnatural death. The accused are fully aware about the said fact. From bare perusal of the E statement recorded u/s. 313 Cr.P.C., it is evident that the court elaborately put questions to the accused about the incident that took place, the sequence of events and the material on evidence brought on record and the same have been answered in detail. The accused persons were F fully aware about all these evidences. The appellants did not raise the question before the trial court that any prejudice was caused to them in examination u/s. 313 Cr.P.C. No prejudice or miscarriage of justice has been done to the appellants. Thus, the High Court erred in law G in setting aside the trial court judgment and remanding the matter back for retrial and afresh decision. The judgment and order passed by the High Court is set aside and the matter is remanded back to the High Court to decide the appeal on merit in accordance with law. [Para 27, 28, 29, 32, 33] [169-C-D, E-F; 170-A, C-E] H •. LIYAKAT v. STATE OF RAJASTHAN 153 Basavaraj R. Patil vs. State of Kamataka 2000 (3) Suppl. A SCR 658:(2000) 8 SCC 740; Ajay Singh vs. State of Maharashtra 2007 (7) SCR 983:(2007) 12 SCC 341; Mohd. Hussain@ Julfikar vs. State (Govt. of NCT of Delhi) 2012 (10) SCR 480:(2012) 9 SCC 408; State of M.P. vs. Bhooraji & Ors. 2001 (2) Suppl. SCR 128:(2001) 7 SCC 679; Ganesha vs. B Sharanappa & Anr. 2013 (12) SCR 400:(2014) 1 SCC 87; Fahim Khan and another vs. State of Bihar (2011) 13 sec 147; Sharad Birdhi Chand Sarda vs. State of Maharashtra 1985 (1) SCR 88:AIR 1984 SC 1622; Shivaji Sahabrao Bobade and Anr. vs. State of Maharashtra 1974 (1) SCR c 489:(1973) 2 SCC 793; S. Hamam Singh vs. State (Delhi Admn.) (1976) 2 SCC 819; Asraf Ali vs. State of Assam 2008 (10) SCR 1115:(2008) 16 SCC 328; Paramjeet Singh
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