LIYAKAT AND ANOTHERversusSTATE OF RAJASTHAN

                   [2014] 12 S.C.R. 151


                 LIYAKAT AND ANOTHER                            A
                             v.
                  STATE OF RAJASTHAN
            (Criminal Appeal No. 2079 of 2009)
                  SEPTEMBER 26, 2014
                                                                B
  [M.Y. EQBAL AND ABHAY MANOHAR SAPRE, JJ.]

     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@
Pamma vs.         State of Uttarakhand 201 O (11)
SCR 1064:(2010)10 SCC 439; Alister Anthony Pareira vs. D
State of Maharashtra 2012 (1) SCR 145:(2012) 2 SCC 648
- referred to.
                    Case Law Reference:
    2000 (3) Suppl. SCR 658      Referred to     Para 12     E
    2007 (7) SCR 983             Referred to     Para 12
    2012 (10) SCR 480            Referred to     Para 13
    2001(2) Suppl. SCR 128       Referred to     Para 13
                                                             F
    2013 (12) SCR 400            Referred to     Para 13
    (2011) 13 sec 147            Referred to     Para 15
    1985 (1) SCR 88              Referred to     Para 20
    1974 (1) SCR 489             Referred to     Para 21     G

    (1976) 2 sec 819             Referred to     Para 22
    2008. (10) SCR 1115          Referred to     Para 23
                                                             H
    154      'SUPREME COURT REPORTS              [2014] 12 S.C.R.


A         2010 (11) SCR 1064            Referred to       Para 24
          2012 (1) SCR 145              Referred to       Para 25
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2079 of 2009.
B
         From the Judgment & Order dated 04.02.2009 of the High
    Court of Rajasthan at Jodhpur in D.B. Criminal Appeal No. 304
    of 2003.

          Pallav Shishodia, Mukul Kumar for the Appellants.
c
          Jayant Bhatt, Ruchi Kohli for the Respondent.

          The Judgment of the Court was delivered by

        M.Y. EQBAL, J. 1. This appeal by special leave is
D directed against the judgment and order dated 4th February,
  2009 passed by the High Court of Rajasthan at Jodhpur in D.B.
  Criminal Appeal No.304 of 2003 whereby the High Court partly
  allowed the appeal of the appellants and remanded the matter
  to the Trial Court for further trial.
E
        2. The facts of the case in brief are that on 25.07.1999 at
  2.00 P.M., one Mustaq Khan resident of Rajpura submitted a
  written typed report at Police Station Dudwakhara alleging inter
  alia that his two daughters Jumila and Bulkesh were married
F to two brothers Liyakat and Jakir of village Jhariya on
  11.6.1993. After marriage, his daughters told that their father-
  in-law Ajeem Khan and mother-in-law Janna! harassed them
  for dowry, and therefore, as and when they used to come, the
  informant was giving necessary articles of dowry. It was further
G alleged that some three years ago, when Liyakat had gone
  abroad, a demand of Rs.40,000/- was made and the informant
  arranged to give the money after mortgaging his household
  articles. Still daughters were treated with cruelty, inasmuch as,
  they were not even given food. It is also alleged in his report
H that some two months ago, Liyakat, (husband of deceased
          LIYAKAT v. STATE OF RAJASTHAN                       155
                  [M.Y. EQBAL, J.]
daughter Jumila) returned back from abroad (Dubai) and raised        A
a demand of she-buffalo, which was conveyed by Jumila to the
effect that if she-buffalo is not given, she would be killed.
However, the informant could manage a cow and sent his
daughter with a cow to her in-laws house. Mr. Khan alleged in
his report that on 23. 7.1999, he received information that Jumila   8
has died. Thereupon, he along with his brother Sattar Khan went
to Jhariya, by which time it was already night and it started
raining as well. The dead body of Jumila was already buried
and the body was not shown to him. It is alleged that his other
daughter Bulkesh was unconscious at that time, and therefore,        C
they brought her with them.

     3. On 24.7.1999, after gaining consciousness, Bulkesh
disclosed. that the three accused persons have murdered
Jumila by throttling, which she had seen and consequently
become unconscious. She also disclosed that the accused              D
planned to kill her also but she does not know as to tiow she
was not killea and that three persons gave beating and killed
Jumila on account of her having taken cow instead of buffalo.
On learning this, the informant Mustaq Khan along with h.is
brother Sattar, lnayat Khan, Nawab Khan, Yakub Khan, Wahid           E
Ali, Bhanwaru Khan and Kasam Khan went to Jhariya and
narrated the things disclosed by Bulkesh. Thereupon, the three
accused confessed their guilt that they had collectively killed
Jumila, which was their mistake and they should be pardoned.
                                                                     F
     4. On the basis of his report, FIR No.76/99 was registered
for offence under Sections 498-A, 3048 and 201 of the Indian
Penal Code, (in short, 'IPC'). Postmortem of the dead body was
got conducted, site map and Halat Mauka was prepared,
statements of witnesses were recorded, documents were
seized, accused persons were arrested. After the investigation,      G
chargesheet was filed against accused persons in the
competent Court.

    5. The trial court framed charges for the offences under
Sections 302 or in the alternative 302/34 read with Section 201      H
     156    SUPREME COURT REPORTS               [2014] 12 S.C.R.


A and 498A of the Indian Penal Code and the trial was
  commenced. During trial, statements of some five witnesses
  were recorded upto 9.5.2000. Thereafter, accused Liyakat could
  be arrested from Delhi Airport and fresh trial was conducted
  by re-examining the witnesses, whose statements had already
8 been recorded. This fresh trial commenced on 9.10.2000,
  wherein the prosecution examined 13 witnesses to prove the
  charges and several documents including written report, site
  map, memo of dead body, Panchayatnama, statement of lnayat
  Khan, seizure memo, postmortem report etc. have been
C exhibited as evidence.

       6. The statement of accused persons under Section 313
  of the Code of Criminal Procedure (in short, 'Cr.P.C.') were
  recorded, wherein the accused persons have refuted the
  prosecution evidence. The accused Ajeem Khan (father-in-law
D of deceased Jumila) stated that his son Liyakat used to live in
  Dubai. Liyakat's wife used to tell him to take her to Dubai, but
  due to unavailability of accommodation there, he showed his
  inability to take her with him. So she committed suicide by
  hanging herself with the hook of fan with the help of her Chunni.
E He sent information to her paternal house and her father and
  father's
    .      elder brother came to village Jhariya along with mother
                             ~



  and Bhabhi of the deceased, and Jumila was buried in their
  presence. At the instructions of some people, this false case
  has been lodged. They never demanded dowry from the Jumila
F and her father. The other accused also averred the same thing.

       7. The trial court convicted all the three accused persons.
  Accused Liyakat was sentenced to undergo life imprisonment
  and a fine of Rs.1000/- for the offence under Section 302, IPC.
  In default of payment of fine, to further undergo six months
G simple imprisonment. For the offence under Section 498A IPC,
  he was sentenced to undergo rigorous imprisonment of one
  year and a fine of Rs. 500/- and RI for one year and a fine of
  Rs. 500/- for the offence under Section 201 IPC. Another
  accused Ajeem Khan and Janna! were sentenced to undergo
H.
           LIYAKAT v. STATE OF RAJASTHAN                       157
                    [M.Y. EQBAL, J.]
life imprisonment and fine of Rs. 1000/- each for the offence          A
under Section 302/34 IPC. In default of payment of fine, to
further undergo six months S.I. The accused Ajeem Khan and
Jannat were sentenced to undergo RI for one year and a fine
of Rs. 500/- each for the offence under Section 498A IPC and
in default of fine to undergo three months SI each. And they           B
were also sentenced to undergo RI for one year and a fine of
Rs. 500/- each for the offence u/s 201 IPC. The sentences were
ordered to run concurrently.

     8. Aggrieved by the judgment passed by the Additional             C
Sessions Judge (Fast Track) Churu, the accused persons
challenged the above decision before the High Court of
Judicature for Rajasthan at Jodhpur. It may be noted here that
during the pendency of the appeal before the High Court,
accused Ajeem Khan died and his appeal was ordered to have
abated. The High Court while partly allowing the appeal and            D
remanding the matter to the trial court for further trial, held that
in the present case, various material circumstances appearing
against the accused from the material on record have not been
put to accused under Section 313, Cr.P.C. The High Court
observed that:-                                                        E

     ".. The question then· is as to what is the consequence i.e.
     whether notwithstanding any other material being there on
     record which by itself may or may not be sufficient to
     convict the accused simply for the omission on the part of        F
     the learned trial court to put certain or few important
     circumstance to the accused in his statement under
     Section 313, the accused should be allowed to go scot-
     free solely on that ground or whether in every case, where
     despite the fact that there is no reliable evidence on record     G
     to convict the accused still since he has been convicted
     by relying upon certain circumstances not put to the
     accused under Section 313, in every case as a rule, the
     trial should be held vitiated and the matter should be
     remanded back to the learned trial court or whether the           H
    158       SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A         importance and significance of the circumstances omitted
          to be put to the accused is r.equired to be considered in
          the sense that the conviction should be upheld if even after
          excluding those circumstances, the conviction can be
          upheld. We are to consider as to out of these various
B         options, which is to be chosen in circumstances, where
          certain circumstances have not been put to the accused
          in his statement under Section 313.

          Laying down any other straight-jacket formula would cause
          great hardship sometime on the prosecution and
c         sometime on accused. The accused cannot be allowed to
          go scott-free simply on the basis of the fact that all
          evidence has not been put on him under Section 313 even
          though there is sufficient material available on record as
          in that event the possibilities are not ruled out about
D         unscrupulous accused managing to have omissions in the
          statement under Section 313 and claim immunity even in
          heinous offences. Likewise, where there is no material on
          record against the accused, then also the trial cannot be
          prolonged simply for the lapse of the officer in not putting
E         the appropriate questions to the accused".

          9. The High Court further held that:-

          "Before parting with the case, it may be observed that it
          is on account of the perfunctory manner of recording
F
          statement under Section 313 that the matter is required
          to be remanded with the further result that one of the
          accused person, who is in jail and is to face the continued
          prolonged trial for no fault of his. The officers, at least in
          R.H.J.S. cadre, are supposed to know the importance of
G         proper recording of the statements of the accused under
          Section 313 as highlighted in series of judgments, some
          of which have been noticed in this judgment. The
          observations may be sent to the officer concerned and
          may also be brought to the notice of the Hon'ble Chief
H
         LIYAKAT v. STATE OF RAJASTHAN                      159
                  [M.Y. EQBAL, J.]
    Justice if His Lordship feels appropriate to take any.,         A
    disciplinary action".

     10. Hence, the present appeal by special leave by two
accused persons. As noticed above, accused Ajeem Khan
died during the pendency of the appeal before the High Court.
                                                                    B
     11. We have heard Mr. Pallav Shishodia, learned senior
counsel appearing for the appellants and Mr. Jayant Bhatt,
learned counsel for the State of Rajasthan and perused the
papers placed before us including the original record received
from the lower courts.                                              c
    12. Mr. Shishodia, learned senior counsel contended on
behalf of the appellants that the purpose of examination of an
accused under Section 313, Cr.P.C., 1973 is to enable the
accused personally to explain any circumstances appearing in
                                                                  0
the evidence against him. The object is to benefit the accused
and not to nail him to any position in compliance of principle of
natural justice audi a/tram partem. He relied upon the decision
of this Court in Basavaraj R. Patil vs. State of Karnataka,
(2000} 8 SCC 740, and Ajay Singh vs. State of E
Maharashtra, (2007) 12 SCC 341.

     13. Contending that the power pf Appellate Court hearing
a Criminal Appeal to order for a retrial would result in, de novo
trial of entire matter which should be ordered in exceptional and
rare cases only when such course of fresh trial becomes             F
indispensable to avert failure of justice. Mr. Shishodia, learned
senior counsel relied upon the decision of this Court in Mohd.
Hussain @ Julfikar vs. State (Govt. of NCT of Delhi),
(2012) 9 SCC 408, State of M.P. vs. Bhooraji & Ors., (2001)
7 SCC 679 and Ganesha vs. Sharanappa & Anr., (2014) 1               G
sec 87.
    14. According to learned senior counsel, in the present
case, there appears no major omission on the part of
prosecution to put its case and/or material evidence or
                                                                    H
    160      SUPREME COURT REPORTS                [2014] 12 S.C.R.


A circumstances for explanation by accused appellants. He
  contends on behalf of the appellants that the accused appellants
  have explained the same and/or cross examined the
  prosecution witness on all material aspects. Therefore, the
  course of partial remand adopted J6y the High Court in the
8 impugned judgment is not justified even on facts, much less in
  law especially when accused appellants have not raised the
  grievances that the trial is vitiated by not being given opportunity
  to explain the material evidence and/or circumstances allegedly
  against accused. Mr. Shishodia submitted that in any case this
C failure, if any, can be addressed by seeking explanation of
  counsel for accused appellants by the Appellate Court.

       15. Concluding his arguments, learned senior counsel
  appearing for the appellants drew our attention to the case of
  Fahim Khan and another vs. State of Bihar, (2011) 13 SCC
D 147, wherein this Court in somewhat similar circumstances was
  pleased to remit the matter back to the High Court for decision
  on merits.

        16. The High Court proceeded on the basis that there is
E perfunctory examination of the accused under Section 313
  Cr.P.C. The High court further proceeded on the basis that the
  trial court has used it against the accused and considered the
  circumstances viz. that immediately after the alleged suicide,
  the accused persons did not give any report to the police after
F her unnatural death with the result that enquiry under Section
  174 could not be done. The relevant portion of the High Court
  judgment is quoted hereinbelow:-

          "lf the present case is considered from the above
          standpoint, as we .have found that the learned trial Court
G         has used against the accused and considered the
          circumstances viz., that immediately after the alleged
          suicide the accused persons did not give any report to the
          police about her unnatural death with the result that an
          inquiry under Section 174 could not be done and no reason
H         has been put forward by the accused for not lodging the
     LIYAKAT v. STATE OF RAJASTHAN                      161
              [M.Y. EQBAL, J.]
report. Similarly, the learned trial Court has relied upon      A
Ex.P/4A and the statement of P.W.10 that in the Halat
Mauka, the door was got bolted from inside and it did get
opened on being pushed from outside. Likewise, the
learned 40 trial Court has also considered that in the site
plan Ex.P/4 at Point Ea 15 inch x 15 inch hole has been         B
made anew in the 9 inch thick wall in an attempt to show
it to be a case of suicide and hole having been made with
a view to show an attempt on the part of the accused to
save the deceased while there was no justification for
making this opening and thus a false story of suicide has       c
been projected. Similarly the learned trial Court has also
considered that the accused Liyakat despite being
husband of the deceased could not be arrested after the
incident and could be arrested only on 15.5.2000 and this
absconding of the accused also confirms his being guilty.       0
In our view, in this regard there is material on record being
Ex.P/21 the warrant having been obtained for arresting the
accused, the fact is that challan was filed against the
accused under Section 299 and in that trial statements of
5 witnesses were recorded and then after arrest of the
accused Liyakat, the matter was retried. Then we also find      E
that the learned Public Prosecutor has pressed into service
 the circumstance that as deposed by Mustaq P.W.1 that.
information about the death of Jumila was not conveyed
 to them and she was buried as a incriminating
 circumstance against the accused. We have found that all       F
these circumstances have not been put to the accused in
 his statement under Section 313 and those circumstances
 by themselves so also in conjunction with the existing
 material on record with regard to which we do not propose
 to express any opinion either ways lest it should prejudice    G
the case of either side, does have material bearing on the
 aspect, as to whether the accused/s can be convicted or
 are entitled to be acquitted."

17. On the basis of the aforesaid finding, the High Court       H
    162       SUPREME COURT REPORTS                  [2014) 12 S.C.R.


A   allowed the appeal, set aside the judgment of the trial court and
    remanded the matter back to the trial court to retry the matter
    at the stage of completion of prosecution evidence and seek
    explanation of the accused with respect to all the circumstances
    appearing against them.
B
          18. Prima facie, we do not agree with the view taken by
    the High Court remanding the matter back to the trial court for
    retrial. Section 313 of the Code reads as under:-

          "313. Power to examine the accused:
c
               (1) In every inquiry or trial, for the purpose of enabling
          the accused personally to explain any circumstances
          appearing in the evidence against him, the Court-

               (a) may at any stage, without previously warning the
D
          accused, put such questions to him as the Court considers
          necessary;

                (b) shall, after the witnesses for the prosecution have
          been examined and before he is called on for his defence,
E         question him generally on the case:

               Provided that in a summons-case, where the Court
          has dispensed with the personal attend.ance of the
          accused, it may also dispense with his examination under
          clause (b).
F
               (2) No oath shall be administered to the accused
          when he is examined under sub- section (1).

                (3) The accused shall not render himself liable to
G         punishment by refusing to answer such questions, or by
          giving false answers to them.

                (4) The answers given by the accused may be taken
          into consideration in such inquiry or trial, and put in
          evidence for or against him in any other inquiry into, or trial
H
         LIYAKAT v. STATE OF RAJASTHAN                       163
                  [M.Y. EQBAL, J.)
    for, any other offence which such answers may tend to show      A
    he has committed.

           (5) The Court may take help of Prosecutor and
    Defence Counsel in preparing relevant questions which
    are to be put to the accused and the Court may permit filing    B
    of written statement by the accused as sufficient
    compliance of this Section"

      19. From bare perusal of the aforesaid provision, it is
manifest that the Section intended to afford a person accused
of a crime an opportunity to explain the circumstances              C
appearing in evidence against him. 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 trial.
At the same time it imposes a duty and makes it mandatory
on the Court to question him generally on the prosecution           D
having completed the examination of its witnesses and before
the accused is called on to enter upon his defence. Indisputably,
the attention of the accused should be invited to inculpatory
piece of evidence or circumstances laid on record and to give
him an opportunity to offer an explanation if he .chooses to do     E
it. The purpose of examination of the accused under Section
313 of the Code is to give the accused an opportunity to explain
the incriminating material which has come on the record. The
scope and purpose of Section 313 of the Code came for
consideration before this Court in a number of judgments, few       F
of which are discussed for the present case.

     20. In the case of Sharad Birdhi Chand Sarda vs. State
of Maharashtra, AIR 1984 SC 1622, this Court observed that
when no question has been put to the appellant in the course
of his examination under Section ·313 Cr.P.C. about any ill-        G
treatment of the deceased by the appellant or his parents and
if the explanation has not been sought for, by putting the
circumstances to the appellant-accused in his examination
under Section 313 Cr.P.C. that has to be excluded from
consideration.                                                      H
    164       SUPREME COURT REPORTS                    [2014] 12 S.C.R. .


A        21. In the case of Shivaji Sahabrao Bobade and Anr.
    vs. State of Maharashtra, (1973) 2 SCC 793, three Judges
    Bench of this Court considered the provision of Section 313
    of the Code. Writing the judgment, Justice Krishna Iyer, J.
    observed:-
B
          "16. It is trite law, nevertheless fundamental, that the
          prisoner's attention should be drawn to every inculpatory
          material so as to enable him to explain it. This is the basic
          fairness of a criminal trial and failures in this area may
          gravely imperil the validity of the trial itself, if consequential
c         miscarriage of justice has flowed. However, where such
          an omission has occurred it does not ipso facto vitiate the
          proceedings and prejudice occasioned by such defect
          must be established by the accused. In the event of
          evidentiary material not being put to the accused, the court
D         must ordinarily eschew such material from consideration.
          It is also open to the appellate court to call upon the
          counsel for the accused to show what explanation the
          accused has as regards the circumstances established
          against him but not put to him and if the accused is unable
E         to offer the appellate court any plausible or reasonable
          explanation of such circumstances, the Court may assume
          that no acceptable answer exists and that even if the
          accused had been questioned at the proper time in the trial
          court he would not have been able to furnish any good
F         ground to get out of the circumstances on which the trial
          court had relied for its conviction. In such a case, the Court
          proceeds on the footing that though a grave irregularity has
          occurred as regards compliance with Section 342, CrPC,
          the omission has not been shown to have caused
G         prejudice to the accused.

       22. In the case of S. Harnam Singh vs. State (Delhi
    Admn.), (1976) 2 SCC 819, this Court held as under:-

          "22. Section 342 of the CLPC, 1898, casts a duty on the
H         Court to put, at any enquiry or trial questions to the accused
     LIYAKAT v. STATE OF RAJASTHAN                          165
              [M.Y. EQBAL, J.]
for the purpose of enabling him to explain any                      A
circumstances appearing in the evidence against him. It
follows as a necessary corollary therefrom that each
material circumstance appearing in evidence against the
accused is required to be put to him specifically, distinctly
and separately. Failure to do so amounts to a serious               B
irregularity vitiating the trial if it is shown to have p~judiced
the accused. If the irregularity does not, in fact, occasion
a failure of justice, it is curable under Section 537 of the
Code.

23. In the instant case, as already observed, the time of           C
the actual exit of the goods in question from the Mills was
a vital circumstance appearing in the prosecution
evidence. Indeed, Counsel for the respondent has primarily
staked his arguments on it to show that the goods could
not have reached the Goods Shed before 10 a.m. on the               D
11th. In view of Section 342, therefore, it was incumbent
on the trial Court to put this circumstance clearly and
distinctly to the accused during his examination. The failure
to do so amounts to a grave irregularity. The gravity of this
 irregularity was accentuated by another lapse on the part          E
 of the prosecution. That lapse was the failure to produce
·three crucial witnesses, namely, Chiranjilal, the truck driver,
 Mukand Lal, the Marker, and Om Parkash, the Railway
 Gate Clerk with his record. It may be noted that these
 witnesses were cited by the prosecution in the calendar            F
 of witnesses and were required to appear along with the
 records maintained by them. But subsequently, without
 good reason, they were given up. They were the persons
 who could give the best and direct evidence with regard
 to the receipt of these goods in the Goods Shed. The non-          G
 production of this evidence has certainly prejudiced the fair
 trial of the appellant.

24. Mr. H.R. Khanna points out that the question of the
appellant being prejudiced owing to the failure of the
                                                                    H
    166       SUPREME COURT REPORTS                [2014] 12 S.C.R.


A         prosecution to put this circumstance to him in examination
          under Section 342, was not raised in the Courts below, and
          consequently, the appellant is debarred from raising it
          now."

8       23. In the case of Asraf Ali vs. State of Assam, (2008)
    16 SCC 328, this Court held that:-

        "21. Section 313 of the Code 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
c       circumstances appearing in the evidence against him. It
      · follows as a necessary corollary therefrom that each
        material circumstance 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
D       serious irregularity vitiating trial, if it is shown that the
        accused was prejudice.

          22. The object of Section 313 of the Code is to establish
          a direct dialogue between the court and the accused. If a
          point in the evidence is important against the accused, and
E
          the conviction is intended to be based upon it, it is right
          and proper that the accused should be questioned about
          the matter and be given an opportunity of explaining it.
          Where no specific question has been put by the trial court
          on an inculpatory material in the prosecution evidence, it
F
          would vitiate the trial. Of course, all these are subject to
          rider whether they have caused miscarriage of justice or
          prejudice. This Court also expressed a similar view in S.
          Harnam Singh vs. State (Delhi Admn.) (1976) 2 SCC 819
          while dealing with Section 342 of the Criminal Procedure
G         Code, 1898 (corresponding to Section 313 of the Code).
          Non-indication of inculpatory material in its relevant facts
          by the trial court to the accused adds to the vulnerability
          of the prosecution case. Recording of a statement of the
          accused under Section 313 is not a purposeless exercise."
H
          LIYAKAT v. STATE OF RAJASTHAN                     167
                   [M.Y. EQBAL, J.]
    24. In the case of Paramjeet Singh@ Pamma vs. State             A
of Uttarakhand, (2010)10 SCC 439, this Court after
considering the earlier views of this Court observed in para 13
as under:-

    "13. Though a conviction may be based solely on
                                                                    B
    circumstantial evidence, this is something that the court
    must bear in mind while deciding a case involving the
    commission of a serious offence in a gruesome manner.
     In Sharad Birdhichand Sarda vs. State of Maharashtra, this
    Court observed that it is well settled that the prosecution's   C
    case must stand or fall on its own legs and cannot derive
    any strength from the weakness of the defence put up by
    the accused. However, a false defence may be called into
    aid only to lend assurance to the court where various links
    in the chain of circumstantial evidence are in themselves
    complete. This Court also discussed the nature, character       D
    and essential proof required in a criminal case which rests
    on circumstantial evidence alone and held as under: (SCC
    p. 185, para 153)

    "(1) the circumstances from which the conclusion of guilt       E
    is to be drawn should be fully established,

     •    •                       •
     (2) the facts so established should be consistent only with
     the hypothesis of the guilt of the accused, that is to say,    F
     they should not be explainable on any other hypothesis
     except that the accused is guilty,

     (3) the circumstances should be of a conclusive nature and
     tendency,                                                      G

     (4) they should exclude every possible hypothesis except
     the one to be proved, and

     (5) there must be a chain of evidence so complete as not
     to leave any reasonable ground for the conclusion              H
    168       SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A         consistent with the innocence of the accused and must
          show that in all human probability the act must have been
          done by the accused." (emphasis supplied)

       25. In the case of Alister Anthony Pareira vs. State of
B Maharashtra, (2012) 2 SCC 648, the provision again came
  for consideration before this Court, when it held as under:-

          "61. From the above, the legal position appears to be this:
          the accused must be apprised of incriminating evidence
          and materials brought in by the prosecution against him
C         to enable him to explain and respond to such evidence and
          material. Failure in not drawing the attention of the accused
          to the incriminating evidence and inculpatory materials
          brought in by prosecution specifically, distinctly and
          separately may not by itself render the trial against the
D         accused void and bad in law; firstly, if having regard to all
          the questions put to him, he was afforded an opportunity
          to explain what he wanted to say in respect of prosecution
          case against him and secondly, such omission has not
          caused prejudice to him resulting in failure of justice. The
E         burden is on the accused to establish that by not apprising
          him of the incriminating evidence and the inculpatory
          materials that had come in the prosecution evidence
          against him, a prejudice has been caused resulting in
          miscarriage of justice."
F       26. The decisions of this Court quoted hereinabove would
  show the consistent view that a defective examination of the
  accused under Section 313 Cr.P.C. does not by itself vitiate
  the trial. The accused must establish prejudice thereby caused
  to him. The onus is upon the accused to prove that by reason
G of his not having been examined as required by Section 313
  he has been seriously prejudiced.

       27. As noticed above, the High Court highlighted certain
  facts and circumstances of the case, i.e. immediately after the
H alleged suicide the accused person did not give any report to
          LIYAKAT v. STATE OF RAJASTHAN                       169
                   [M.Y. EQBAL, J.]
the police about her unnatural death; the statement of PW-10,         A
that the door was got bolted from inside and it did not open on
being pushed from outside; and the trial court considered that
the accused Liyakat could not be arrested after the incident and
could be arrested only on 15.5.2000. The High Court is of the
opinion that all these circumstances have not been put to the         B
accused in his statement under Section 313 Cr.P.C. which
vitiated the trial.

     28. In our considered opinion, the High Court fell in error
in coming to the above conclusion. It is an admitted fact that        C
the accused persons immediately after the alleged suicide did
not give any report to the police about her unnatural death. There
is no denial to this fact and the accused are fully aware about
the fact that they have not reported the matter to the police.
From bare perusal of the statement recorded under Section
313 Cr.P.C., it is evident that the Court elaborately put questions   D
to the accused and the same have been answered in detail.
The entire incident has been fully apprised to the accused
including that the accused Liyakat was confronted with the
Exhibit 14, 15, 16 and 17 to the effect that the accused Liyakat,
who was absconding, was finally arrested. In answer, the              E
 accused said "not aware". Same answer was given by the
 accused Ajeem Khan.

      29. The Court apprised the accused persons in a very
elaborate manner about the incident that took place, the              F
sequence of events and the material on evidence brought on
record. The accused persons were fully aware about all these
evidences. The appellants did not raise the question before the
trial court that any prejudice has been caused to them in
examination under Section 313 Cr.P.C. The burden is on the            G
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. In .the instant case, we are

                                                                      H
    170        SUPREME COURT REPORTS                [2014] 12 S.C.R.


A   of the definite view that no prejudice or miscarriage of justice
    has been done to the appellants.

          30. Learned counsel for the respondent-State submitted
    that the trial court has gone into the merits of the case. He fairly
    submitted that it is not a case where matter is to be remanded
8
    back to the trial court for deciding fresh as held by the High
    Court.

        32. Taking into consideration the entire facts and
  circumstances of the case and the law discussed, herein before,
C we are of the opinion that the High Court has erred in law in
  setting aside the trial court judgment and remanding the matter
  back for retrial and afresh decision. It is a fit case where the
  High Court should decide the appeal on merit.

0        33. For the reasons aforesaid, we dispose of this appeal,
    set aside the judgment and order passed by the High Court and
    remand the matter back to the High Court to decide the appeal
    on merit in accordance with law. The appellants shall remain
    on bail till further orders of the High Court in the matter.

E Nidhi Jain                                         Appeal disposed of.