Section 313 CrPC examination
The examination of the accused under Section 313 of the Code of Criminal Procedure (CrPC) by the trial court is popularly known as 313 examination and the statement deriving out of it is called 313 Statement.
Purpose of 313 CrPC Examination
The purpose of 313 examination is primarily to provide the accused an opportunity to explain his version of facts about the incriminating circumstances against him, on one hand, and the court a chance to examine the accused without the fear of the accused being trapped into incriminating 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 discussion point 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, regarding the offence charged against him. It provides him an easy option for acquittal if he is 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 313 examination cannot be used for convicting the accused. To convict the accused the prosecution version should stand on its own legs.
The 313 examination is a procedural safeguard for the accused to directly tell the court what had happened. It provides a proper and adequate opportunity for the accused to explain his innocence if he is 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.
The 313 examination is done after the prosecution evidence
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.
Questions in 313 examination must be comprehensible
The questions put to the accused must be comprehensible to him, even though he is an illiterate person. A complex question involving several facets of the issue in one string should be avoided. 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 a 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. Every circumstance emerging from the record against the accused is to be put to him. If the accused keeps 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 advocate of the accused. It is not good enough for the court asking the accused what he has to say about the prosecution evidence in general, 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.
The statements under 313 examination is 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.
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 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 CrPC. 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 regarding 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 based on 313 Statements
The 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, the accused is not required to prove his innocence in a criminal case. The 313 examination is an extraordinary option for the accused to prove his innocence, if he is innocent.
SC guidelines on 313 examination
In Premchand v The State of Maharashtra [ 2023 (1) KLD 545 (SC)] delivered on 3rd March 2023, the Supreme Court (SC) summarised the essential points regarding the Section 313 CrPC, as follows:
- section 313(1)(b) CrPC is a valuable safeguard in the trial process for the accused to establish his innocence;
- section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him;
- when questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court;
- the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences;
- an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him;
- the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statement(s);
- statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Indian Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case;
- statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission; and
- if the accused takes a defence and prefers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements; any failure to consider the accused’s explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.
SC guidelines on 313 examination in another case
The SC perused various judgments and issued, the following principles, in regard to 313 statements in Indrakunwar v State of Chattisgarh [2023 INSC 934] delivered on 19th October 2023.
- The object, evident from the Section itself, is to enable the accused to themselves explain any circumstances appearing in the evidence against them.
- The intent is to establish a dialogue between the Court and the accused. This process benefits the accused and aids the Court in arriving at the final verdict.
- The process enshrined is not a matter of procedural formality but is based on the cardinal principle of natural justice, i.e., audi alterum partem.
- The ultimate test when concerned with the compliance of the Section is to enquire and ensure whether the accused got the opportunity to say his piece.
- In such a statement, the accused may or may not admit involvement or any incriminating circumstance or may even offer an alternative version of events or interpretation. The accused may not be put to prejudice by any omission or inadequate questioning.
- The right to remain silent or any answer to a question which may be false shall not be used to his detriment, being the sole reason.
- This statement cannot form the sole basis of conviction and is neither a substantive nor a substitute piece of evidence. It does not discharge but reduces the prosecution’s burden of leading evidence to prove its case. They are to be used to examine the veracity of the prosecution’s case.
- This statement is to be read as a whole. One part cannot be read in isolation.
- Such a statement, as not on oath, does not qualify as a piece of evidence under Section 3 of the Indian Evidence Act, 1872; however, the inculpatory aspect as may be borne from the statement may be used to lend credence to the case of the prosecution.
- The circumstances not put to the accused while rendering his statement under the Section are to be excluded from consideration as no opportunity has been afforded to him to explain them.
- The Court is obligated to put, in the form of questions, all incriminating circumstances to the accused so as to give him an opportunity to articulate his defence. The defence so articulated must be scrutinized and considered.
- Non-compliance with the Section may cause prejudice to the accused and may impede the process of arriving at a fair decision.
Additional Reading
- Raj Kumar Singh @ Raju @ Batya v State of Rajasthan, 2013
- Alister Anthony Pareira v State of Maharashtra, 2012
- Satyavir Singh Rathi v State Tr.C.B.I, 2011
- Mohan Singh v Prem Singh And Anr, 2002
- State of Maharashtra v Sukhdev Singh Alias Sukha & others [AIR 1992 SC 2100]
- Premchand v The State of Maharashtra [ 2023 (1) KLD 545 (SC)]
- Indrakunwar v State of Chattisgarh [2023 INSC 934]
