After the prosecution evidence was over, the court said to the accused, “Having heard the evidence against you what have you to say about it?” … His conviction is being assailed on the ground that he had not been properly questioned after the prosecution’s evidence. How would you decide?

Question: After the prosecution evidence was over, the court said to the accused, “Having heard the evidence against you what have you to say about it?” The accused replied, “I am innocent. I was at Nagpur at the crucial time when the occurrence in question took place at Agra. The prosecution story is false. I shall produce evidence”. And he did.

His conviction is being assailed on the ground that he had not been properly questioned after the prosecution’s evidence. How would you decide? [D.J.S. 1991]

Find the answer only on Legal Bites. [After the prosecution evidence was over, the court said to the accused, “Having heard the evidence against you what have you to say about it?” … His conviction is being assailed on the ground that he had not been properly questioned after the prosecution’s evidence. How would you decide?]

Answer

Section 313 of the Code of Criminal Procedure empowers the Court to examine the accused after the evidence for the prosecution has been taken. A duty is cast upon the Courts to question the accused properly and fairly so that the exact case that the accused has to meet is brought home to him in clear words and thereby an opportunity is given to him to explain any point. This is an important and salutary provision and should not be slurred over.

The object of empowering the Court to examine the accused is to give him an opportunity of explaining any circumstances which may tend to incriminate him and thus to enable the Court, in a case where the accused is undefended, to examine the witnesses in his interest.

The object of questioning an accused person by the Court is to give him an opportunity of explaining the circumstances that appear against him in the evidence. If, for example, some article is found in the accused’s house which points in an emphatic manner to the accused’s responsibility for the crime, he should be given an opportunity of offering an explanation of the presence of that article in his house. Only the accused person can be examined under this section.

The Supreme Court has held that an accused should be properly examined under this section and, if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires.

In the case of Bijoy Chand Potra v. State, (1952) SCR 202 the Supreme Court has further held that in order that a conviction may be set aside for non-compliance with the provisions of this section, it is not sufficient for the accused merely to show that he was not fully examined as required by the section, but he must also show that such non-compliance has materially prejudiced him.

The Supreme Court held in State of Punjab v. Naib Din, (2001) 8 SCC 578 that if the rest of the evidence is sufficient to bring home the guilt of the accused, the lapse of putting questions about the evidence of formal nature could be justifiably side-lined. Such an omission cannot vitiate the proceedings unless prejudice is caused to the accused. If the accused succeeds in showing prejudice, the appellate Court can call for an explanation from the counsel.

Thus, any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. In so far as non-compliance of mandatory provisions of Section 313, CrPC, it is an error essentially committed by the learned Sessions Judge. Since justice suffers in the hands of the Court, the same has to be corrected or rectified in the appeal.

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