On going through the questions, particularly Q. No. 38 and further questions till Q. No. 45, I find that the material which has appeared during the course of cross-examination of the concerned witnesses taken on behalf of the accused, had been put to the accused so as to elicit his appropriate response to the same. This material, it can be seen, has been considered as constituting incriminating circumstances against the accused. It is well settled law that only those circumstances which incriminate the accused can be put to the accused so that he is made aware of the same and is able to give appropriate response. It is the law laid down in Tara Singh's case, supra. The question in this case would be, whether the material appearing in the cross-examination of the prosecution witnesses taken by the learned counsel for the accused could be considered as something going against the accused and the answer, as rightly submitted by the learned counsel for the applicant, would be a firm “No”. The reason being that such material though it goes against the accused, is ultimately accepted by him to be so and, therefore, would be out of bound of Section 313 of Criminal Procedure Code. It would be not covered by the scope of this section and, therefore, there is no need for the Court to bring to the notice of the accused once again such a material. If the accused consciously puts some questions which yield answers revealing incriminating circumstances, same would be in the nature of admitted facts from which the accused cannot keep distance. They may even be unexpected by the accused, being the result of the cross-examination having gone haywire. Yet, he cannot disown them they being of his own making. Such material cannot be said as incriminating from the lens of Section 313 Criminal Procedure Code. Purpose of this section is to enable the accused to explain personally the circumstances appearing in evidence against him and not to resile from his own admissions. The objection, therefore, taken in this regard on behalf of the accused/petitioner ought to have been allowed. But, the learned Judge ignoring the well settled principles of law has rejected the same wrongly by going against the spirit of Section 313 of Criminal Procedure Code. The impugned order deserves to be quashed and set aside.
{Para 5}
6. In the result, writ petition is allowed. The objection taken by the learned counsel for the petitioner/accused in respect of Question Nos. 38 to 45 is upheld and these questions stand deleted from the statement of the petitioner/accused recorded under Section 313 of Criminal Procedure Code. The trial shall proceed in accordance with law.
In the High Court of Bombay
(Before S.B. Shukre, J.)
Urvashi Vs State of Maharashtra
Criminal Writ Petition No. 166 of 2016
Decided on June 20, 2016
Citation: 2016 SCC OnLine Bom 5379 : (2016) 3 AIR Bom R (Cri) (NOC 47) 15 : (2016) 3 Bom CR (Cri) 422
The Judgment of the Court was delivered by
S.B. Shukre, J.:— Heard. Rule. Rule made returnable forthwith. Heard finally by consent of parties.
2. This writ petition challenges the order dated 28.1.2016 passed by the learned Assistant Sessions Judge, Nagpur, in S.T. No. 392 of 2013, thereby rejecting the objection taken on behalf of the petitioner/accused in respect of some of the questions put to him under Section 313 of Criminal Procedure Code.
3. Learned counsel for the petitioner submits that only those questions can be put to an accused under Section 313 of Criminal Procedure Code which relate to the circumstances appearing in the prosecution evidence against the accused. If there are incriminating circumstances appearing in the cross-examination taken on behalf of the accused, the learned counsel for the petitioner further submits, those circumstances would be merely in the nature of admissions and, therefore, could not be covered by the scope and ambit of Section 313 of Criminal Procedure Code. For this submission, he places reliance upon the case of Tara Singh v. The State, 1951 SCC 903 : AIR 1951 SC 441.
4. Learned APP submits that it is well settled that the questions which relate to incriminating circumstances may be put to the accused while recording his statement under Section 313 of Criminal Procedure Code. He, therefore, submits that in the facts and circumstances of the case, appropriate order may be passed.
5. On going through the questions, particularly Q. No. 38 and further questions till Q. No. 45, I find that the material which has appeared during the course of cross-examination of the concerned witnesses taken on behalf of the accused, had been put to the accused so as to elicit his appropriate response to the same. This material, it can be seen, has been considered as constituting incriminating circumstances against the accused. It is well settled law that only those circumstances which incriminate the accused can be put to the accused so that he is made aware of the same and is able to give appropriate response. It is the law laid down in Tara Singh's case, supra. The question in this case would be, whether the material appearing in the cross-examination of the prosecution witnesses taken by the learned counsel for the accused could be considered as something going against the accused and the answer, as rightly submitted by the learned counsel for the applicant, would be a firm “No”. The reason being that such material though it goes against the accused, is ultimately accepted by him to be so and, therefore, would be out of bound of Section 313 of Criminal Procedure Code. It would be not covered by the scope of this section and, therefore, there is no need for the Court to bring to the notice of the accused once again such a material. If the accused consciously puts some questions which yield answers revealing incriminating circumstances, same would be in the nature of admitted facts from which the accused cannot keep distance. They may even be unexpected by the accused, being the result of the cross-examination having gone haywire. Yet, he cannot disown them they being of his own making. Such material cannot be said as incriminating from the lens of Section 313 Criminal Procedure Code. Purpose of this section is to enable the accused to explain personally the circumstances appearing in evidence against him and not to resile from his own admissions. The objection, therefore, taken in this regard on behalf of the accused/petitioner ought to have been allowed. But, the learned Judge ignoring the well settled principles of law has rejected the same wrongly by going against the spirit of Section 313 of Criminal Procedure Code. The impugned order deserves to be quashed and set aside.
6. In the result, writ petition is allowed. The objection taken by the learned counsel for the petitioner/accused in respect of Question Nos. 38 to 45 is upheld and these questions stand deleted from the statement of the petitioner/accused recorded under Section 313 of Criminal Procedure Code. The trial shall proceed in accordance with law.
7. Rule is made absolute in these terms. No costs.
———
† Nagpur Bench
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