Section 313 CrPC - Remanding for framing of proper charge and recording statement in a case that took place more than 22 years can cause serious prejudice to the accused.

Appellants were set at liberty because the Court thought it would be unfair to the accused if they are called to answer the circumstances of the incident which happened more than 22 years back, which can cause serious prejudice to the accused if the case is remanded for proper framing of charge and for recording additional statements of the accused under Section 313.

                                        

In the present case, the Hon’ble Supreme Court dealt with question that ‘whether failure of Trial Court to comply with the procedure prescribed in Sections 213 amd 313 of Cr.PC amount to prejudice to the accused?’

          A Bench of the Hon’ble Supreme Court comprising of Justice Sanjay Kishan Kaul and Justice Abhay S. Oka has held that the failure of Trial Court to frame proper charge under Section 213 and failure to put important circumstantial evidence in the statement under Section 313 caused serious prejudice to the accused and also failure of justice.

          Next, the Hon’ble  Court  considered whether a case can be considered for remanding for proper framing of charge and for recording additional statements after failure by Trial Court.
 
BRIEF FACT:
          The Appellants/accused persons were convicted under Sections 148, 302, 307 read with Section 149 of Indian Penal Code alongwith Section 25 of Arms Act, 1959 by the Sessions Court as well as High Court of Judicature at Allahabad.
 They  were convicted because the appellants along with 4 others killed one Harpal Singh during an altercation between them and injured one Attar Singh, a prosecution witness.

However in the FIR, a case was made out that deceased, Harpal Singh died to bullet injuries caused by bullets fired by one appellant/accused. But in the evidence of prosecution witness, Attar Singh deposed that deceased was attacked by other appellant/accused when he fell on the ground due to commotion of bullets firing. He deposed that he died due to injuries caused by sharp weapons. Doctor, who performed the post-mortem on the body of deceased stated that he suffered injuries caused by sharp-edged weapons like knives and chura.

The prosecution mainly relied on the evidence of two eye witnesses  alongwith evidence of recovery, who were also allegedly injured at the hands of the accused.
One of the accused, a minor was acquitted on an order of the Hon’ble Supreme Court after he made a plea that he was a minor at the time of commission of crime.
 
SUBMISSIONS:
The Learned Counsel of the Appellants submitted the following:
1.       The element of unlawful assembly cannot be accepted as there was no assembly of five or more person.

2.       That serious prejudice has been caused to the accused due to the failure to frame proper charge and by failure to put material circumstances to the accused in their statement under Section 313 Cr.PC.

3.       Conviction of accused/appellants is vitiated and they deserve to be acquitted. He pointed out while submitting, that the charge alleged that deceased died due to gunshot but the Sessions Court  and High Court in their judgments held that the deceased died due to the assault made by accuses/appellants, which has caused serious prejudice to the accused.
 
On the other hand the Learned Additional Advocate General, Sri Vinod Diwakar for the State of Uttar Pradesh submitted that two eye-witnesses were cross-examined  who deposed that deceased died due to assault made by the appellants by weapon in their hands. Therefore there was no prejudice caused to them on account of the failure of the Court to frame a proper charge.
He also submitted that both the courts have believed the testimony of Prosecution witnesses.
He submitted that injuries on the person of the deceased and injuries found on the prosecution witnesses were consistent with the prosecution case and that there should be no interference in this appeal.
 
FINDINGS
The Hon’ble Supreme Court after going through the submissions of the respective counsels found that there was no unlawful assembly. The Court agreed with the submission of the appellants’ Counsel and  held that the charge under Section 148 and 149 could not be sustained against 4 accused.

Initially in the FIR,  five accused were named which gave rise to element of unlawful assembly under Section 141 of IPC which is punishable under Sections 148 and 149 of IPC. But since one of the accused was a minor at the time of commission of offence, he was acquitted by an order of the Apex Court.  As a result only 4 accused remain. Hence the charge under Section 148 and 149 of IPC could not be sustained.

Supreme Court says :

The object of provision of  framing of charge is to make the accused aware of the accusations against him on the basis of which the prosecution is seeking to convict. The object of provisions regarding the framing of charge is that accused should be in a position to effectively defend himself. An accused can properly defend himself provided he is clearly informed about the nature of the allegations against him before the actual trial starts.

Also the Court put emphasis on the relevant provisions of Sections 212 and 213 of Crpc. The Court said  “Unless the particulars such as specific Sections of the penal statute as well as the time and place of the commission of the alleged offence are incorporated in the charge, the accused will not be in a position to properly defend himself. Even these particulars may not be enough in many cases to enable the accused to properly defend himself. That is why there is a specific requirement incorporated in Section 213 that if the particulars mentioned in Sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.”
 
In the present case, the Court observed that particulars of the manner of committing the offence of murder as provided in Section 213 was required while framing a charge which the trial Court has failed.
 
In regard to the effect of omission to frame proper charge and put relevant circumstances to the accused, the Court  viewed that finding and sentence of the Court cannot be invalid merely in the ground of error in framing charge or omission in framing charge. The finding and sentence will be invalid only if in the opinion of the Court of Appeal, the error or omission has occasioned a failure of justice.

“When the Court of appeal is called upon to decide whether any failure of justice has been occasioned due to omission to frame a charge or error in the charge, the Court is duty bound to examine the entire record of the trial including all exhibited documents, depositions and the statements of the accused recorded under Section 313.” – says Supreme Court.
 
 
 Apex Court observed that a misleading charge was framed that Harpal Singh, the deceased has died due to bullet injuries sustained by the bullets fired by the accused with a pistol in his head. Whereas the circumstances put to the accused was that death of Harpal Singh was caused due to assault physically made by accused by use of sharp weapons.
 
The Hon’ble Court said “because of misleading charge, there is every possibility of the accused getting misled due to the framing of such a charge and omission to frame the correct charge.
 
The Court put emphasis on two provisions of sections 215 and 464 of Cr.PC. Section 215 lays down  the error cannot be said to be material unless the accused was misled by such error and that such error or omission has caused a failure of justice.
 
And Section 464 deals with the effect of error or omission made while framing charges on the finding and sentence of the competent Court. The Section provides that the finding and sentence of the Court cannot be invalid merely on the ground of error in framing charge or omission in framing charge. The finding and sentence will be invalid only if in the opinion of the Court of appeal, the error or omission has occasioned a failure of justice.
 
Now coming requirement of  Section 313 of CrPC, the Court opined that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defense witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself.
 
It was held in  the case of  Jai Dev v. State of Punjab (1963) 3 SCR 489, it was
held thus:-
 

“........The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the accused person detailed questions which may amount to his cross examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.”

 
Also the Court also referred to the previous decision in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, it was held thus:

“It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration.”

 
The Hon’ble Court allowed the appeal of the appellants by setting aside the impugned judgements of the Sessions Court as well as High Court. Appellants were  set at liberty because the Court thought it would be unfair to the accused if they are called to answer the circumstances of the incident which happened more than 22 years back, which can cause serious prejudice to the accused if the case is remanded for proper framing of charge and for recording additional statements of the accused under Section 313.

 

 

Coram:

Justice Sanjay Kishan Kaul  and Justice Abhay S. Oka

 

Case:

Kalicharan & Ors. Versus State of Uttar Pradesh (Criminal Appeal No. 122 of 2021)

 

DOJ: 14/12/2022

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