Lawwatch

Examination of the Accused under Section 313 of the Cr P C

Introduction
The examination of the accused under Section 313 of the Criminal
Procedure Code (Cr P C) by the trial court is popularly known as “313
examination” and the statement deriving out of it is called “313
Statement”.

Purpose of 313 Examination

The purpose of 313 examination is primarily to provide the accused an
opportunity to explain the actual facts about the incriminating
circumstances against him on one hand, and the court a chance to examine
the accused in an environment free from fear of the accused being
unnecessarily trapped into embarrassing admission on the other.

The Section 313 has another limb also. The court can ask the accused any
question as the court considers necessary at any stage of the trial
without even warning him. It is a great procedural power granted to the
court to know what really the circumstances of the crime were. That part
is not the point of discussion here.

A Golden Chance for the Accused

The examination is a golden chance for the accused to state before the
court what the truth is, in regard to the offence charged against him.
It provides him an easy option for acquittal if he is definitely
innocent - despite that the evidence creates a tough smokescreen due to
unreasonable interconnection of events that the prosecution brings
forth. It works well for the benefit of both the accused and the court
when the defence witnesses are weak and the circumstances are not quite
in favour of the accused. The examination cannot be used for nailing the
accused. To nail the accused the prosecution story should stand on its
own legs.

The examination is done after the witnesses for the prosecution have
been examined and before the accused is called upon to enter into his
defence. It is in fact a supernumerary examination, in addition to the
examination of witnesses of the prosecution, defence and court, in order
to fortifying the disparate events into a whole story of facts and
truth. The examination is really a procedural safeguard for the accused
to directly tell the court what actually had happened. It provides a
proper and adequate opportunity for the accused to explain his innocence
if he is really innocent and he has been unnecessarily brought to book
due to some deceptive circumstances. The explanation of the accused will
be weighed by the court against the prosecution story to see whether the
investigation is fair or a fabricated one.

Questions must be Comprehensible

The question to be asked under this examination should be couched in a
form which is understandable to even an illiterate person. A complex
question involving a number of facets of the issue in one string should
be avoided.

The questions put to the accused must be comprehensible to him. The
question should not contain more than one circumstance or a combination
of several instances. The question must be fair. The court cannot ask
any question on a matter when there is absolutely no evidence about it.
Inquisitorial questions cannot be asked to trap the accused or compel
him to make incriminating admissions. In this examination, it is
improper for the court to read out a long string of question and ask the
accused whether the statement is correct or not. The accused must be
questioned about each material circumstance separately so as to provide
the accused an opportunity for fair explanation. If the trial court does
not give the accused an opportunity for explaining the facts as he
prefers, the appellate court can do so.

The court cannot opt for pick and choose selection procedure in putting
questions. Each and every circumstance emerging from the record against
the accused is to be put to him. If the accused keep silence or fail to
give an explanation, it can be treated as a circumstance standing
against him even though he has the right to keep silence as per law. It
is the duty of the court to bring the attention of the accused to every
incriminating material but the court cannot accept the incriminating
part of the answer and reject the exculpatory part.

The personal examination under the Section 313 cannot be substituted by
the examination of the Counsel of the accused. That the court asking the
accused what he has to say about the prosecution evidence in general, is
not good enough for the court under Section 313, but he must be asked
about each material circumstance against him. Under this examination,
the court cannot split a statement of the accused into two and take one
part and reject the other. The statement should be taken as a whole and
in its right spirit in which the accused intends it to be.

Not Substantive Evidence

The 313 statement is not substantive evidence and conviction cannot be
made on its basis alone. But it can be considered for believing the
prosecution story if it is a supportive one. The statement cannot be
used in punishing the accused in the case, as per law. On the other
hand, if the statement he makes in the court is convincing enough to
setup his innocence, the court can acquit him. The object of questioning
under Section 313 is not to build the case against the accused or to
fill up the lacunae in the prosecution evidence but to enable the
accused to tell the truth of the prosecution story and to acquit him if
he is really innocent.

Questioning “generally on the case”, as the provision states, does not
mean asking the accused general questions regarding the offence. It
means nothing but the questions must relate to the whole case and not
limited to some of the aspects. Circumstances not included in the
evidence cannot be put to the accused. The court cannot use any document
from outside the evidence when the accused is examined under this
section. When more than one accused is tried each one should separately
be questioned under this section. Non-examination of the accused under
this section will also be prejudicial and result in injustice to the
accused.

The mode of recording the statement should be as provided for in Section
281 of the Code. The whole of such examination including every question
put to him and every answer given by him shall be recorded in full by
the judge himself. The record shall be shown and read to the accused
before getting his signature. In this examination, it is not essential
for the court to consult the defence council in regard to the nature,
circumstances and type of questions to be put to the accused.

Questioning must be Fair

It must be remembered that the 313 statement is for the benefit of the
accused. Mixing up distinct matters will not give the accused a fair
opportunity to explain the circumstances that appear against him. The
questions as in the nature of cross examination cannot be put to the
accused as the examination is for the accused to explain the
incriminating circumstances. The accused, under the Section 313, is to
be questioned not to get the inference that flows from the circumstances
against the accused but to rule out even the remote possibility of any
trace of innocence of the accused. However the prosecution must stand on
its own legs. If the evidence that the prosecution provides does not
inspire confidence in sustaining the conviction of the accused, the
court should not take the incriminating part of his statement alone, as
the sole basis of his conviction. Before questioning the accused under
the section, the court must be quite clear in its mind in regard to the
issues of the case to be proved by the prosecution and the circumstances
upon which the prosecution wishes to rely.

In fact, the examination of the accused under this section establishes a
direct dialogue between the accused and the court. It is being done in
accordance with the principles of natural justice and it enables the
accused to justify his innocence, if he is in truth innocent. The
failure of the accused to mention some facts in his 313 statement may
weaken his defence. Both non-compliance of mandatory provisions of 313
and non-questioning by the prosecution on certain matters, are not sound
reasons to acquit the accused.

No Conviction solely on the Statement

Conviction of the accused cannot be based merely on the statement made
under section 313 Cr PC. The statement cannot be used against the
accused in the case but can be used in any other case but it can be a
germane consideration for the court if the prosecution has established
the chain of evidence reasonably well.

Above all we must not forget that in a criminal case, the accused is not
required to prove his innocence but if he can he will get an easy and
early acquittal. This examination is an extraordinary option for the
accused to prove his innocence if he is really innocent.

Additional Reading: Case Laws

Raj Kumar Singh @ Raju @ Batya vs State Of Rajasthan,
2013

Alister Anthony Pareira vs State Of Maharashtra,
2012

Satyavir Singh Rathi vs State
Tr.C.B.I, 2011

Mohan Singh vs Prem Singh And Anr,
2002

State Of Maharashtra Vs. ... vs Sukhdev Singh Alias Sukha And .,
1992