The Allahabad High Court has directed the Hapur Sessions Court to record the statements afresh of two servants who were sentenced to death by by the court in the case of gang rape and murder of their master’s daughter within two months.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Nand Prabha Shukla passed this order while hearing a Capital Cases filed by Sonu @ Paua @ Beedi and Another.
The Court seized proceedings under Section 366 of the Cr.P.C for confirmation of death sentence awarded to the accused appellants, as well as the appeals filed by the accused against their conviction and sentence. The confirmation proceedings were placed earlier before the Court on 28.4.2023.
It transpired that a young lady was subjected to sexual assault and then done to death in an incident occurred on 6.9.2018. The younger brother of the deceased was assaulted with a knife and his throat was cut. The injured brother temporarily lost his voice. Heavy reliance is placed upon the statement of the brother of the deceased for conviction and sentence of the accused appellants.
When the statement of the brother of the deceased was placed before this Court, it was seen that his statement was noted in such a manner that the substance of his statement could not be deciphered.
Saghir Ahmad, Senior Counsel assisted by Mohd Raghib Ali, who appears as Amicus Curiae in the matter, submitted that the manner in which statement of brother of the deceased has been recorded shows complete non-compliance of the procedure required to be followed while recording the statement of witness, as also shows lack of awareness about the purpose of recording statement of accused under Section 313 CrPC.
Senior Counsel submits that Section 313 Cr.P.C confers an important right upon the accused to be confronted of the substance of evidence led by the prosecution, against them, at the trial, with the intent to elicit explanation of the accused.
Senior Counsel submits that the manner in which the statement has been recorded of the accused, under Section 313 Cr.P.C, leaves much to be desired.
Before recording the statement of the witness, the presiding Judge has made general enquiries from the witness and found that he was studying in Class-8th and was fully competent to depose before the court. The witness was not administered any oath. The court further noticed that though the witness is not clear as he stutters, nevertheless his reply is intelligible.
It is argued that chief examination of witnesses was required to be recorded in the form of a narrative and not in the question answer form. Reliance is also placed upon Section 119 of the Evidence Act, 1872.
Section 276 Cr.P.C prescribes the procedure to be followed for recording evidence and has to be read in conjunction with the provisions contained in the Evidence Act, 1872. Section 118 of the Indian Evidence Act specifies as to who may testify while Section 119 of the Indian Evidence Act relates to witnesses, who are unable to communicate verbally.
The Court noted that,
A bare perusal of Section 119 of the Evidence Act would make it explicit that where a witness is unable to speak he may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Recording of such evidence is to be treated as oral evidence. A combination of Section 276 Cr.P.C read with Section 119 of the Evidence Act makes it clear that in a trial before the court, the evidence of each witness shall be taken down in writing either by the presiding Judge himself or by his dictation in open court. Sub-section (2) of Section 276 of the Cr.P.C contains an important provision, as per which the evidence of witness is required ordinarily to be taken down in the form of a narrative.
A discretion, however, is vested with the presiding Judge to take down or cause to be taken down any part of such evidence in the form of question and answer. A combined reading of the provisions make it explicit that ordinarily the statement of witness would be recorded in the form of a narrative but for reasons, as is found expedient in the opinion of the presiding Judge, such evidence can also be taken in the form of question-answer.
The Court said that the object of a fair criminal trial is to unearth the truth. The presiding Judge has therefore been vested with vast discretion to put questions to the witness to cull out the truth of the matter. It is for this reason that the discretion in the presiding Judge is not specified/ defined while conferring jurisdiction upon him to choose such part of the evidence to be recorded in the form of question answer. No consequences are otherwise provided in the code if the strict adherence is not followed in recording of evidence.
The intent of the statute has also to be gathered from the use of the term ‘ordinarily’ in sub-section (2) of Section 276 CrPC. The term ‘ordinarily’ suggests the way things are normally or usually done. It excludes definiteness or compulsiveness required for the provision to be treated as mandatory.
The Court observed that,
The questions and the answers put to the brother of the deceased during examination-in-chief have been perused by us. We do not find any question posed by the presiding Judge to be in the form of a leading question. Moreover, no objection was otherwise taken on behalf of the accused during trial to the posing of such questions as was required in terms of Section 142 of the Act of 1872. We, therefore, reject the argument of Ahmed on this score, too.
We have perused the records and we find that the entire evidence of the brother of the deceased has been put to the accused for recording his statement under Section 313 Cr.P.C, instead of separately putting each circumstance as a separate question for eliciting an intelligible reply from the accused.
The presiding Judge instead of formulating questions precisely containing the substance of evidence adduced against the accused for the purposes of eliciting his response, virtually reproduced the entire statement of the witness recorded in the form of question answer. This is not how the question is to be put to an accused.
The substance of the evidence of the brother of the deceased was required to have been specifically formulated, as a separate question, and then put to the accused, which has not been done.
The Court further said that,
When the entire statement in the question-answer form is put as the circumstance, it would be difficult for the accused to come up with his defence or the explanation in respect of the substance of evidence led against him. Section 313 Cr.P.C is by now wellrecognized as conferring an important right upon the accused to explain the circumstances put against him by the prosecution in the form of evidence to elicit his reply. Unless questions are put in the manner required in law such circumstances cannot be relied upon against the accused.
The manner in which statement of accused is recorded under Section 313 Cr.P.C, without formulating the question and confronting the accused with the circumstances, which has surfaced against him in respect of charges levelled has clearly denied opportunity to the accused to explain the circumstances.
This reference is made to the Court under Section 366 Cr.P.C. While answering the reference this Court is required to exercise its powers under Section 366 and 367 CrPC. In the event the Court finds that proper procedure has not been followed in recording of the statement of accused under Section 313 CrPC it is open for the Court to cure the defect by directing the court below to formulate questions separately, in respect of each circumstance, as appears against the accused, so as to record his version in terms of Section 313 CrPC.
In light of the discussions aforesaid, the Court directed the court of sessions to record the statement of the accused under Section 313 Cr.P.C afresh, by formulating proper questions, in light of the above directions, to be put as circumstance relied upon by the prosecution against the accused. The proceedings, in that regard, would be concluded within a period of two months and the statement of the accused shall be remitted to the Court at the earliest.