# Ishaque v. State of U.P

- **Citation:** (2021) 11 ILRA 792
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-29
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishaque-v-state-of-u-p-46705
- **Pages:** 18

## Headnote

Criminal Law -Code Of Criminal Procedure,
1973 - Section313 - Appellant is a citizen of
Bangladesh-all papers signed by h im in Bengaliexamination of Appellant u/s 313 Cr.P.C. was not in
respect
of
the circumstances
against
him
in
prosecution evidence-he was merely apprised as to
who have testified against him and documents
produced-and not as to what has been testified or
what the documents contained-circumstances not put
to the accused in the manner required by lawimproper examination of accused u/s 313 Cr.P.C. -
serious prejudice to accused-miscarriage of justice.

Held, in the prosecution evidence had been put to
the
accused
in
a
manner
he
could
have
understood, he might have given an explanation
that seeing his wife sleeping next to the deceased,
he lost his bearings and self control and, in a fit of
sudden
rage,
committed
the
act.
Such
an
explanation perhaps could have fit in with the
prosecution evidence and absolved him of the
charge of an offence punishable under section 302
IPC and might have served as a mitigating factor to
convert the charge of murder to one of an offence
punishable under section 304 IPC. Likewise, he
could have offered explanation as to why he was
seen running, may be by telling that because he
was terrified seeing his wife, or somebody else,
commit the murder. Importantly, the appellant was
not seen by PW1 running with a knife though,
according to PW2 he ran away with the knife
whereas, the knife was recovered, found hidden,
wrapped in a cloth, beneath a stack of bricks, from
a Kothri near the scene of crime. Had all these
circumstances been put in the form required by law
and in the language understood by the accused,
result might have been different.(para 31)

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,986 of 68,011. This is a partial read: ask again with offset=39986 for what follows._

792 INDIAN LAW REPORTS ALLAHABAD SERIES
Code vide judgment and order dated 19.12.2007
arising from Sessions Case No. 149 of 2007 passed
by the Additional Sessions Judge, Fast Track Court
No. 6, Ahmedabad is converted to conviction under
Section 304 (Part I) of Indian Penal Code. However,
the conviction of the appellants - original accused
under section 452 of Indian Penal Code is upheld.
The appellants - original accused are ordered to
undergo rigorous imprisonment for a period of ten
years and fine of Rs. 5000/- each in default rigorous
imprisonment for six months under section 304 (Part
I) of Indian Penal Code instead of life imprisonment
and sentence in default of fine as awarded by the trial
court under section 302 IPC. The sentence imposed
in default of fine under section 452 IPC is also
reduced to two months. Accordingly, the appellants
are ordered to undergo rigorous imprisonment for a
period of ten years and fine of Rs. 5000/-, in default,
rigorous imprisonment for six months for offence
punishable under section 304(I) of Indian Penal
Code and rigorous imprisonment for a period of five
years and fine of Rs. 2,000/-, in default, rigorous
imprisonment for two months for offence punishable
under section 452 of Indian Penal Code. Both
sentences shall run concurrently. The judgement and
order dated 19.12.2007 is modified accordingly. The
period of sentence already undergone shall be
considered for remission of sentence qua appellants -
original accused. R & P to be sent back to the trial
court forthwith."

20. In latest decision in Khokan@ Khokhan
(Supra) where the facts were similar to this case, the
Apex Court has allowed the appeal of the accused
appellant. The decision of the Apex Court in the case
of Anversinh v. State of Gujarat, (2021) 3 SCC 12
which was related to kidnapping from legal guardian,
wherein it was established that the Court while
respecting the concerns of both society and victim,
propounded that the twin principle of deterrence and
correction would be served by reducing the period of
incarceration already undergone by the accused. In
our case, this is not that gruesome matter where the
accused cannot be dealt with in light of all these
judgments.
Judgments
in
Pravat
Chandra
Mohanty v. State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3 SCC 238
will also enure for the benefit of the accused.

21. All others judgments which were pressed
into service by the learned counsel for the appellant
are not discussed as that would be repetition of what
we have decided.

22. We come to the definite conclusion that the
death was due to septicemia. The judgments cited by
the learned counsel for the appellant would permit us
to uphold our finding which we conclusively hold
that the offence is not under Section 302 of I.P.C. but
is culpable homicide and, therefore, sentence of the
accused appellant is reduced to the period he has
already undergone. The fine is reduced to Rs.10,000/-
to be paid to the original complainant.

23. Appeal is partly allowed. Record and
proceedings be sent back to the Court below
forthwith. If the accused-appellant fails to pay the
fine, the default sentence will start after 13 years of
incarceration.

24. This Court is thankful to learned Advocates
for ably assisting the Court.
----------
(2021)12ILR A792
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 5977 of 2019

Ishaque ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.K. Agrawal, Sri Pushpendra Singh, Sri
Mandeep Singh
11 All. Ishaque Vs. State of U.P.
793
Counsel for the Respondent:
D.G.A.

Criminal Law -Code Of Criminal Procedure,
1973 - Section313 - Appellant is a citizen of
Bangladesh-all papers signed by h im in Bengaliexamination of Appellant u/s 313 Cr.P.C. was not in
respect
of
the circumstances
against
him
in
prosecution evidence-he was merely apprised as to
who have testified against him and documents
produced-and not as to what has been testified or
what the documents contained-circumstances not put
to the accused in the manner required by lawimproper examination of accused u/s 313 Cr.P.C. -
serious prejudice to accused-miscarriage of justice.

Held, in the prosecution evidence had been put to
the
accused
in
a
manner
he
could
have
understood, he might have given an explanation
that seeing his wife sleeping next to the deceased,
he lost his bearings and self control and, in a fit of
sudden
rage,
committed
the
act.
Such
an
explanation perhaps could have fit in with the
prosecution evidence and absolved him of the
charge of an offence punishable under section 302
IPC and might have served as a mitigating factor to
convert the charge of murder to one of an offence
punishable under section 304 IPC. Likewise, he
could have offered explanation as to why he was
seen running, may be by telling that because he
was terrified seeing his wife, or somebody else,
commit the murder. Importantly, the appellant was
not seen by PW1 running with a knife though,
according to PW2 he ran away with the knife
whereas, the knife was recovered, found hidden,
wrapped in a cloth, beneath a stack of bricks, from
a Kothri near the scene of crime. Had all these
circumstances been put in the form required by law
and in the language understood by the accused,
result might have been different.(para 31)

Appeal allowed. (E-9)

List of Cases cited:

1. Nar Singh Vs St. of Har.: (2015) 1 SCC 496

2. Tara Singh Vs State : AIR 1951 SC 441

3. Ajay Singh Vs St. of Mah. : 2007 (12) SCC 341

4. Naval Kishore Vs St. of Bihar : (2004) 7 SCC 502
5. Maheshwar Tigga Vs St. of Jharkhand : (2020) 10
SCC 108

6. Jai Dev & ors. Vs St. of Pun. : AIR 1963 SC 612

7. Shivaji Sahabrao Bobade & anr. : St. of Mah. :
(1973) 2 SCC 793

8. Asraf Ali Vs St. of Assam : (2008) 16 SCC 328

9. Alister Anthony Pareira Vs St. of Mah. : (2012) 2
SCC 648

10. Satyavir Singh Rathi ACP Vs State, (2011) 6 SCC1
(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is against a composite
judgment and order dated 12.06.1996 passed by
Ninth Additional District & Sessions Judge,
Ghaziabad in two connected Sessions Trial Nos.
147 of 1991 and 149 of 1991 whereby, the
appellant - Ishaque has been convicted under
Sections 302 I.P.C. and section 4/25 Arms Act,
respectively; and has been punished as follows:
(i) under Section 302 I.P.C., life imprisonment
with fine of Rs. 2,000/- and a default sentence of
six months R.I. and (ii) under Section 25/4 Arms
Act, two years R.I. with fine of Rs. 500/- and a
default sentence of one month R.I. Both
sentences to run concurrently.

INTRODUCTORY FACTS

2. (i) At 6.10 hours on 29.01.1991,
Rajendra Kumar (PW-2) gave a written report
(Ex. Ka-1), which was lodged as first
information report (FIR) (Ex. Ka-4) at P.S.
Shahibabad, District Ghaziabad, alleging therein
that two days before, in the evening, at about
7.00 pm, Arun Jeev @ Bhaloo Sham (the
deceased), a rickshaw puller, on his rickshaw,
came with a lady, a man and a child. Claiming
that the lady is his sister (Ayesha), the man is his
brother-in-law (Ishaque Matwar - the appellant),
Arun Jeev asked for a room from the informant
(PW-2) to stay for two days on the pretext that
794 INDIAN LAW REPORTS ALLAHABAD SERIES
their own abode (hutment) at Nai Seemapuri
would be ready in two days. It is alleged that on
that request, PW2 gave them a room to stay. It is
alleged in the FIR that in the morning of
29.01.1991, at about 5 am, PW2 and his wife
Ruparani (not examined) heard noise. When
they came out of their room, they saw the
rickshaw puller (Arun Jeev) lying dead in a pool
of blood, with his throat/neck slit, and his
brother-in-law (Ishaque - appellant) having a big
blood-stained knife in his hand. Soon thereafter,
the appellant ran away with the knife, leaving
his wife Ayesha behind.

(ii) Inquest was conducted at about 8
am at the place of the incident. Inquest report
(Ex. Ka-8) was witnessed by Sameeruddin (PW3); Ali Hasan; Afsar Ali (PW-5); Jameel
Ahmad; and Raj Kumar.

(iii) S.I. Govind Krishna Dwivedi
(PW-8) reached the spot, prepared site plan (Ex.
Ka-7), collected blood in a small tobacco box
and blood-stained piece of carpet. Recovery
memo (Ex. Ka-2) was witnessed by Sameerudin
(PW-3) and Afsar Ali (PW-5). Autopsy was
conducted on the same day at about 5 pm. The
autopsy report (Ex. Ka-3) prepared by PW-6
noticed: an incised wound 12 cm x 5.0 cm x
bone deep on the front of neck 4.0 cm below to
chin; 6.0 cm above Supra Sternal notch; 5.0 cm
below to right ear; and 6.0 cm below to left ear,
margin clear cut; larynx, trachea and oesophagus
cut, through and through; and heart empty.
Semi-digested food was found in the stomach.
Small intestine and large intestine were half
filled. Opinion was that death was due to shock
and haemorrhage as a result of ante-mortem
injury. Estimated time of death was three-fourth
of a day before.

(iv) On 30.01.1991, at about 1.20 pm,
in the presence of witness Raj Kumar and
Ibrahim (PW-4), on the pointing out of the
accused, allegedly, a blood-stained knife,
wrapped in a cloth, was recovered from a stack
of bricks near the wall of premises No. 161 A,
Shalimar Park, Pradeep Trading Comp. A memo
(Ex. Ka-3) of that recovery and site plan (Ex.
Ka-15) of that recovery was prepared by PW-8.

(v) Investigation was completed by
Jitendra Pal Singh (not examined as a witness
because he had died in an encounter) and a
charge-sheet (Ex. Ka-6) was submitted, which
was proved by H.C. Brijlal Singh (PW-7).

(vi) S.S. Guha (PW-9) recorded the
statement of Ayesha under Section 164 of the
Code of Criminal Procedure, 1973 (for short
Cr.P.C. or the Code). P.W.9 stated that Ayesha
could only speak in Bangla language therefore,
her statement was recorded with the help of a
translator/ interpreter. On PW-9's statement,
statement of Ayesha was marked Ex Ka-7.

(vii) On recovery of the knife, a
separate case under Section 25 Arms Act was
registered. Investigation of which was assigned
to S.I. Mahendra Singh Tyagi (not examined).
After investigation, charge-sheet (Ex. Ka-16)
was submitted, which was proved by PW-8. On
the two charge-sheets, cognizance was taken and
cases were committed to the Court of Session
giving rise to two sessions trial, namely, S.T.
No. 147 of 1991, under Section 302 I.P.C.; and
S.T. No. 149 of 1991, under Section 25/4 Arms
Act. Both the trials were connected with each
other and a single set of evidence was led.

EVIDENCE
OF
THE
PROSECUTION

3. (i) Upon committal, after the charges
were denied by the accused-appellant, in the
trial, the prosecution examined nine witnesses,
namely, PW.-1 Alam; PW-2 Rajendra Kumar
(informant); PW-3 Sameeruddin; PW-4 Ibrahim;
PW-5 Afsar Ali; PW-6 Dr. Jai Prakash; PW-7Brij Pal Singh; PW-8 Govind Krishna Dwivedi;
and PW-9 Sri S.S. Guha.

(ii) PW-3 Sameeruddin and PW-5
Afsar Ali are witnesses of recovery of bloodstained carpet from the spot; PW-4 Ibrahim is
one of the witnesses of recovery of knife; PW-6
11 All. Ishaque Vs. State of U.P.
795
- the doctor who conducted the post-mortem -
proved the post-mortem report; .PW-7 Brij Pal
Singh - Head Moharir at the police station
Shahibabad - proved the registration of the FIR
on 29.01.1991 at 6.10 am and handing over copy
/chik FIR to Sri G.K. Dwivedi (P.W.8) for
investigation.

(iii) PW-8, S.I. Govind Krishna
Dwivedi, is the investigating officer. He stated
that on registration of the FIR, he reached the
spot and on the directions of the informant
prepared site plan, lifted blood and blood soaked
carpet. He stated that a day after registration of
the FIR, the investigation was transferred to
Prabhari Nirikshak - Jitendra Pal Singh, who,
later, died in an encounter in the district of
Pilibhit. He stated that Jitendra Pal Singh had
arrested the accused and effected recovery of the
knife on the pointing out of the accused. He
proved the signature of Jitendra Pal Singh on the
recovery memo as also on the charge-sheet
prepared by Jitendra Pal Singh. He also stated
that he got the statement of Ayesha recorded
under Section 164 Cr.P.C. He stated that
investigation of the offence under Section 25
Arms Act was assigned to S.I. Mahendra Singh
Tyagi
who
submitted
charge-sheet.
He
recognised the signature of Mahendra Singh
Tyagi on the charge-sheet.

In his cross-examination, PW-8 stated
that the FIR was not written in his presence; that
he reached the spot after about one hour i.e. on
or about 7 am; that he does not remember that
there was light at the scene of the crime; that he
does not remember as to how many doors were
there in the room where the body was found
though he can tell the same after looking at the
site plan; that the house where the crime
occurred had boundary wall about chest high;
that the house had a common gate; and that
adjoining the house there was a Kothari and
inside the room, where the body was found,
there was a cot. The body was 2-3 paces away
from the cot, lying in a supine position with left
hand on stomach and right hand on the floor. He
saw accused's wife on spot. He had taken her
statement but her clothes were not collected as
she had no other clothes to wear. He also took
photographs of the body. He, thereafter, got the
body sealed after carrying out inquest. He stated
that he had searched for the accused that day
though he could not remember where he had
searched for him. He also stated that he met
Alam -the Chowkidar (PW1) - on that day.
P.W.1 was Chowkidar of a different block. He
stated that P.W.1 had not disclosed that Ishaque
(appellant) had a knife in his hand. PW1 also did
not disclose whether Ishaque's (appellant's)
clothes were blood-stained.

(iv) PW-9, A.C.J.M., Sri S.S. Gupta.
He proved the recording of statement of Ayesha
under Section 164 Cr.P.C. with the help of a
translator.

In his cross-examination, he stated that
he used the service of a translator to translate
Bangla into Hindi. He stated that he did not
himself understand Bangla and that he did not
understand what Ayesha stated in Bengali but he
wrote whatever the translator told him. He
disclosed the name of translator as Sikandar (not
examined).

(v) PW-4-Ibrahim is the witness of
recovery of knife. He stated that about two years
ago while he was returning after collecting
fodder for his buffalo, he saw 5-6 police
personnel and one Master Raj Kumar (not
examined) sitting and enquiring from accused
Ishaque (appellant). Ishaque told them that he
could recover the weapon of assault. Ishaque
moved ahead near the Kothi where the murder
took place and just behind that, from a
dilapidated kothari and stack of bricks, he took
out a knife wrapped in a cloth, which was taken
by the police. He stated that the police thereafter
prepared a memo and got his signatures. He
proved his signature on the memo.

In his cross-examination, he stated that
the place from where the recovery was made is
half a kilometer away from his house; that
Ishaque had stated that he had killed Arun Jeev
796 INDIAN LAW REPORTS ALLAHABAD SERIES
as he was seen lying close to his wife; he stated
that there were 60-70 people standing there at
that time; that at the time when the memo was
prepared there were only 5-6 police personnel
and Raj Kumar; he denied the suggestion that he
is telling lie under pressure of police; he also
stated that at the time when the confessional
statement was made, the accused was in the
custody of the police.

(vi) PW-2 is the informant. He proved
the lodging of the FIR. In his statement- in-
chief he reiterated what was narrated by him in
the FIR. He identified the deceased from his
photographs as Arun Jeev @ Bhalu Sham, the
rickshaw puller.

In his cross-examination, he stated that
he has a house at Shalimar Garden which has
four rooms and a kitchen. Out of those four
rooms, he uses two rooms for himself and two
rooms lie vacant. All four rooms are in front of
each other. The deceased Arun Jeev used to take
his children to the school on a rickshaw
therefore, he knew him from before. He saw
Ishaque (the appellant) for the first time and
came to know about him through the deceased.
He denied the suggestion that he lodged the FIR
on the information provided by Ayesha. He
stated that the police neither arrested the accused
nor recovered anything from him in his
presence. In paragraph 10 of his crossexamination though he denied the suggestion
that he lodged a false FIR on the statement of
Ayesha but stated that Ayesha had told him that
her husband ran away after killing the deceased
and on her statement, he lodged the report. He
stated that he did not have a fondness for the
rickshaw puller (the deceased) but as he used to
take his children to school, he was allowed a
room to sleep.

(vii) PW-1 Alam Chowkidar. He stated
that about a year and 9 -10 months before, between
quarter past 5 and 5.30 am, while he was
performing his duties as a Chowkidar at D Block
at New Seemapuri Colony, he saw the accused
(present in Court) running; thinking him to be a
thief, he caught hold of him. On being caught, he
told him that he is not a thief and that he has to go
to his maternal uncle Jabbar. He, thereafter, took
him to his uncle Jabbar. When Jabbar told him that
the accused is his nephew, he released him. At that
point of time he was not aware that the accused
was running after committing murder.

In his cross-examination, he admitted
that from the statement of the lawyers present in
Court he could guess that the accused before him
is Ishaque. He stated that New Seemapuri and Old
Seemapuri colonies are at a distance of half a
kilometer and at the time when he saw the accused
running he saw him running from half a mile
away. At that time, the accused was wearing just a
Tehmat (Lungi) with no upper garment on his
body.

4. After the prosecution evidence was closed,
the statement of the appellant was recorded under
Section 313 Cr.P.C. The record of the statement of
the appellant including the questions put to him,
under Section 313 Cr.P.C. is extracted below:-

^^,l0Vh0 ua0 147@91

ljdkj cuke bZ'kgkd

v0 /kk0 302 vkbZ0ih0lh0

Fkkuk lkfgckcknA

uke& bZ'kgkd] ekroj firk dk uke& ealwj
ekroj mez& is'kk& fuoklh& cgjryk]

Fkkuk& f'kolj] ftyk Qjhniqj caxykns'k& gky
>qXxh lhekiqjh fnYyhA

C;ku
vUrxZr
/kkjk
313
lh0vkj0ih0lh0

& & & & & & & & & & &
& & & &

iz'u 1& ;g fd vfHk;kstu i{k dk dFku gS
fd fnukad 29-1-91 dks lqcg djhc 5-
00
cts
jktsUnz dqekj ds edku ua0 , 184 'kkyhekj xkMZu
lkfgckckn esa vkius
vk:utho mQZ Hkkyw dh
pkdw ls xnZu dkVdj gR;k dj nh ftldh fjiksVZ
jktsUnz

dqekj us Fkkuk lkfgckckn ij fy[kkbZ
tks izn'kZd&1 gS bl bl ckjs esa vkidks D;k

dguk gSA

mRrj& xyr gSA
11 All. Ishaque Vs. State of U.P.
797

iz'u 2& vfHk;kstu i{k dh vksj ls vkids
f[kykQ xokgku jktsUnz dqekj] lehj]
bczkghe]
vQlj vyh] vkye] Mk0 t;izdk'k gSM dkULVsfcy
fcztiky

flagfoospukf/kdkjh xksfoUn d`".k
f}osnh] ,0lh0 tSu Jh ,l0,l0 xqIrk us xokgh nh

gS bl ckjs esa vkidks D;k dguk gSA

mRrj& xyr jaft'k ls c;ku nsrs gSA

iz'u 3& ;g fd vfHk;kstu i{k dh vksj ls
vkids f[kykQ ,Q0vkbZ0vkj0 rgjhj
fjiksVZ QnZ
[kwu vkynk njh] uD'kk utjh QnZ cjkenxh pkdw
vkjksi i= vkfn

djkekr lkfcr fd;s tks
izn'kZd&2 rk izn'kZ d&16 gS bl ckjs esa vkidks D;k

dguk gS%&

mRrj& irk ughA

iz'u 4& D;k vkidks dqN dguk gSA

mRrj& th ughA

iz'u 5& vkids f[kykQ eqdnek D;ks pykA

mRrj%& jaft'k lsA

iz'u 6& D;k vki lQkbZ nsxsA

mRrj& **"

TRIAL COURT FINDINGS

5. The trial court by placing reliance on the
evidence led, held that the following circumstances
were proved: (a) that PW2 gave a room to the
deceased, the appellant, his wife and child to sleep;
that, in the morning, PW2 heard shrieks; upon
coming to the spot, he saw the appellant with a
blood soaked knife in his hand and the deceased
lying dead in a pool of blood; that, soon thereafter,
the appellant escaped; that, the wife of the
appellant in her statement under section 164 CrPC
disclosed that the appellant committed murder
because he discovered the deceased lying next to
her in the night; and that, the knife (weapon of
assault) was recovered at the pointing out of the
appellant. Upon finding the chain of circumstances
complete to prove the guilt of the appellant and
rule out all other hypothesis inconsistent with it,
found the charge of murder proved and punished
the appellant accordingly.

6. We have heard Sri Mandeep Singh,
holding brief of Sri Pushpendra Singh, for the
appellant; Sri J.K. Upadhyay, learned A.G.A. for
the State; and have perused the record.

SUBMISSIONS

7. The contentions of the learned counsel
for the appellant are as follows:-

(a) The incriminating circumstances
emanating from the prosecution evidence were
not put to the accused-appellant as is required by
law for recording statement of the accused under
Section 313 Cr.P.C. which vitiates the trial and
the order of conviction. It was urged that,
admittedly, the appellant is a citizen of
Bangladesh, he signed all papers in Bangla
therefore, even if the evidence was recorded in
his
presence,
unless
the
incriminating
circumstances appearing in the prosecution
evidence were put and explained to him, he
could not have offered a plausible explanation.
This caused serious prejudice to appellant's
defence thereby vitiating the trial and the order
of conviction.

(b) The key eye-witness of the
incident, Ayesha, though listed as a witness in
the charge sheet, was not examined. The
prosecution is therefore guilty of withholding
their best evidence. Otherwise, her statement
under Section 164 Cr.P.C. is not admissible. The
statement of P.W.9 as to what Ayesha said is not
admissible, being hearsay. In addition to that,
Ayesha, admittedly, was not conversant with
Hindi language and, therefore, her statement
recorded with the help of a translator, cannot be
narrated by PW-9 as PW9 admitted that he could
not understand what Ayesha stated in Bangla.
Thus, the testimony of PW 9 as to what Ayesha
told him is irrelevant and cannot be read in
evidence.

(c) In so far as the statement of PW-2
is concerned, from his statement during crossexamination, it appears that he lodged the first
information report on the basis of information
received from Ayesha and not on his own
798 INDIAN LAW REPORTS ALLAHABAD SERIES
personal knowledge. PW2's statement in crossexamination that he lodged the FIR on the basis
of information provided by Ayesha that her
husband has killed the deceased and has run
away with the knife reflects that he arrived at the
spot after the accused had left therefore, his
rendition of the incident that he saw the
deceased standing with a knife appears doubtful.
Further, PW-1, the Chowkidar, who claims to
have caught hold the appellant between 5.15 and
5.30 am, on the date of the incident, as he was
seen running from quite a distance, did not state
that the appellant was having a knife in his hand.
Thus, PW2's statement that the accusedappellant ran away with the knife is extremely
doubtful because, in that scenario he would have
no time to hide the weapon beneath a stack of
bricks, as alleged by the prosecution, and that
too, in close proximity to the scene of crime.

(d) The evidence of recovery of knife at
the pointing out of the appellant is completely
cooked up because hiding the knife in close
proximity to the scene of crime does not seem to
fit in with the prosecution evidence inasmuch as
according to PW2 the appellant ran away with the
knife whereas, from the statement of PW4,
recovery of the knife, wrapped in a cloth, was
made from beneath a stack of bricks near the scene
of crime. Even otherwise, the Investigating
Officer, who effected recovery, was not examined
as he is stated to have died in an encounter.

(e) In the alternative, it was contended
that from the prosecution case it appears to be a
case where the deceased was seen lying near
appellant's wife therefore, in a fit of rage, the
incident occurred. Thus, conviction could be under
Section 304 I.P.C. and not Section 302 I.P.C.
Under the circumstances, as up to 03.06.2021, the
appellant has already suffered incarceration of 30
years 04 months and 03 days, and with remission
38 years, 8 months, he is liable to be released on
sentence undergone.

8. Per contra, the learned A.G.A.
submitted that this is a case where there is a
prompt first information report; that the
witnesses are not inimical; that the accused was
seen with a blood-stained knife at a place where
the body was lying in a pool of blood and that
the injury on the body was referable to that knife
therefore, in absence of any explanation on the
part of the accused, the prosecution by proving
the chain of incriminating circumstances was
successful in proving the guilt. On the question
of sentence, the learned A.G.A. submitted that
since the statement recorded under Section 164
Cr.P.C. is not a substantive piece of evidence, as
Ayesha was not examined in court, and no
explanation
came
from
the
accused
to
demonstrate
existence
of
mitigating
circumstances, the conviction of the appellant
for the offence punishable under Section 302
I.P.C. is justified and therefore no case for
interference is made out. In respect of the
contention that the incriminating circumstances
appearing in the evidence were not put to the
accused, the learned A.G.A. submitted that even
if all the incriminating circumstances have not
been put to the accused while recording the
statement under Section 313 Cr.P.C., but, as the
entire evidence was laid by the prosecution in
the presence of the accused, unless prejudice is
shown, the accused gets no benefit. In support of
the above submission, the learned A.G.A. cited
Apex Court's decision in Nar Singh v. State of
Haryana : (2015) 1 SCC 496.

ANALYSIS

9. Having noticed the rival submissions
and the entire prosecution evidence, before we
proceed to weigh the respective submissions, it
would be apposite to observe that from the
record it is established that the appellant is a
citizen of Bangladesh and all papers including
charge memorandum and statement under
section 313 CrPC has been signed by him in
Bengali. Further, from the own case of the
prosecution, as would be apparent from the
statement of PW9, the wife of the appellant did
11 All. Ishaque Vs. State of U.P.
799
not understand Hindi and therefore, her
statement was recorded with the help of a
translator. No doubt, it has not come on record
that any application was moved by the appellant
that he needed the help of a translator or that he
was not conversant with Hindi language but
what cannot be ignored is that here was a trial of
a citizen of Bangladesh who was signing in
Bangla and his wife's statement was recorded
with the help of a translator as she did not know
Hindi. In these circumstances, what were the
precautions that the trial judge was required to
take, and whether by not taking those
precautions, the trial and the order of conviction
stood vitiated needs to be examined. In that
context we shall also examine whether there was
due compliance of the provisions of section 313
CrPC, if not, whether it caused serious prejudice
to the appellant thereby vitiating the order of
conviction.

10. To address the issues culled out above, a
brief glimpse at the relevant statutory provisions in
the Code would be useful. Under section 272
CrPC the language of each court within the State
other than the High Court is as may be determined
by the State Government for the purposes of the
Code. Subject to its proviso, section 273 CrPC
provides that evidence taken in the course of the
trial shall be taken in the presence of the accused,
or, when his personal presence is dispensed with,
in the presence of his pleader. Section 277 CrPC
provides for the language of record of evidence.
Section 279 CrPC provides as follows:

"279. Interpretation of evidence to
accused or his pleader.- (1) Whenever any
evidence is given in a language not understood by
the accused, and he is present in Court in person,
it shall be interpreted to him in open Court in a
language understood by him.

(2) If he appears by pleader and the
evidence is given in a language other than the
language of the Court, and not understood by the
pleader, it shall be interpreted to such pleader in
that language.

(3) When documents are put for the
purpose of formal proof, it shall be in the
discretion of the Court to interpret as much thereof
as necessary."

11. Section 281 CrPC provides for the record
of examination of accused. Sub-section (3) of
section 281 provides that the record shall, if
practicable, be in the language in which the
accused is examined or, if that is not practicable, in
the language of the Court. Sub section (4) of
section 281 further provides that the record shall
be shown or read to the accused, or, if he does not
understand the language in which it is written,
shall be interpreted to him in a language which he
understands, and he shall be at liberty to explain or
add to his answers.

12. Section 313 Cr.P.C. reads as under:

"313. Power to examine the accused.-
(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 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, question him
generally on the case:

Provided that in a summons-case,
where the Court has dispensed with the personal
attendance of the accused, it may also dispense
with his examination under clause (b).

(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 punishment by refusing to
800 INDIAN LAW REPORTS ALLAHABAD SERIES
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 for, any other
offence which such answers may tend to show 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 of
written statement by the accused as sufficient
compliance of this section."

13. There is nothing in the Code which
may indicate that the provisions of sub-sections
(3) and (4) of section 281 of the Code would not
apply when there is an examination of the
accused under section 313 of the Code. In fact, a
combined reading of these provisions would
indicate that they have been crafted in the Code
to ensure a fair trial so that the accused is in
know of the circumstances appearing against
him in the evidence and is able to set up his
explanation or defence accordingly.

14. The importance of the provisions of
section 342 of the Code of Criminal Procedure,
1898, which is pari materia with section 313 of
the
Code,
1973,
was
highlighted
in
a
Constitution Bench decision of the Apex Court
in Tara Singh v. State : AIR 1951 SC 441. In
paragraph 32, His Lordship Vivian Bose, J.
observed as follows:

"32. I cannot stress too strongly the
importance of observing faithfully and fairly the
provisions of section 342 of the Criminal
Procedure Code. It is not a proper compliance to
read out a long string of questions and answers
made in the committal court and ask whether the
statement is correct. A question of that kind is
misleading. It may mean either that the questioner
wants to know whether the recording is correct, or
whether the answers given are true, or whether
there is some mistake or misunderstanding despite
the accurate recording. In the next place, it is not
sufficient compliance to string together a long
series of facts and ask the accused what he has to
say about them. He must be questioned separately
about each material circumstance which is
intended to be used against him. The whole
object of the section is to afford the accused a fair
and
proper
opportunity
of
explaining
circumstances which appear against him. The
questioning must therefore be fair and must be
couched in a form which an ignorant or illiterate
person will be able to appreciate and understand.
Even when an accused person is not illiterate, his
mind is apt to be perturbed when he is facing a
charge of murder. He is therefore in no fit
position to understand the significance of a
complex question. Fairness therefore requires
that each material circumstance should be put
simply and separately in a way that an illiterate
mind, or one which is perturbed or confused, can
readily appreciate and understand. I do not
suggest that every error or omission in this behalf
would necessarily vitiate a trial because I am of
opinion that errors of this type fall within the
category of curable irregularities. Therefore, the
question in each case depends upon the degree of
the error and upon whether prejudice has been
occasioned or is likely to have been occasioned. In
my opinion, the disregard of the provisions of
section 342, Criminal Procedure Code, is so gross
in this case that I feel there is grave likelihood of
prejudice."

(Emphasis Supplied)

15. Developing the law further, in Ajay
Singh v. State of Maharastra : 2007 (12) SCC
341, interpreting the word 'generally' appearing
in sub-section 1(b) of section 313 of the Code, it
was observed by the Apex Court as follows:-

"14. The word 'generally' in subsection (1)(b) does not limit the nature of the
questioning to one or more questions of a
11 All. Ishaque Vs. State of U.P.
801
general nature relating to the case, but it
means that the question should relate to the
whole case generally and should also be limited
to any particular part or parts of it. The
question must be framed in such a way as to
enable the accused to know what he is to
explain, what are the circumstances which are
against him and for which an explanation is
needed. The whole object of the section is to
afford the accused a fair and proper
opportunity of explaining circumstances which
appear against him and that the questions must
be fair and must be couched in a form which
an ignorant or illiterate person will be able to
appreciate and understand. A conviction based
on the accused's failure to explain what he was
never asked to explain is bad in law. The whole
object of enacting Section 313 of the Code was
that the attention of the accused should be
drawn to the specific points in the charge and in
the evidence on which the prosecution claims
that the case is made out against the accused so
that he may be able to give such explanation as
he desires to give."

(Emphasis Supplied)

16. In Naval Kishore v. State of Bihar :
(2004) 7 SCC 502, it was observed by the Apex
Court as under:-

"5. ......Under Section 313 Cr.P.C. the
accused should have been given opportunity to
explain any of the circumstances appearing in
the evidence against him. At least, the various
items of evidence, which had been produced by
the prosecution, should have been put to the
accused in the form of question and he should
have been given opportunity to give his
explanation. No such opportunity was given to
the accused in the instant case. We deprecate
the practice of putting the entire evidence
against the accused put together in a single
question and giving an opportunity to explain
the same, as the accused may not be in a
position to give a rational and intelligent
explanation. The trial judge should have kept in
mind the importance of giving an opportunity to
the
accused
to
explain
the
adverse
circumstances in the evidence and the Section
313 examination shall not be carried out as an
empty formality. It is only after the entire
evidence is unfurled the accused would be in a
position to articulate his defence and to give
explanation to the circumstances appearing in
evidence against him. Such an opportunity
being given to the accused is part of a fair trial
and if it is done in slipshop manner, it may
result in imperfect appreciation of evidence."

(Emphasis Supplied)

17. In Nar Singh v. State of Haryana :
(2015) 1 SCC 496 with regard to the object of
section 313(1)(b) Cr.P.C. it was observed by the
Apex Court as follows:-

"11. The object of Section 313 (1)(b)
Cr.P.C. is to bring the substance of accusation
to the accused to enable the accused to explain
each and every circumstance appearing in the
evidence against him. The provisions of this
section are mandatory and cast a duty on the
court to afford an opportunity to the accused to
explain each and every circumstance and
incriminating evidence against him. The
examination of accused under Section 313 (1)(b)
Cr.P.C. is not a mere formality. Section 313
Cr.P.C. prescribes a procedural safeguard for
an accused, giving him an opportunity to explain
the facts and circumstances appearing against
him in the evidence and this opportunity is
valuable from the standpoint of the accused. The
real importance of Section 313 Cr.P.C. lies in
that, it imposes a duty on the Court to question
the accused properly and fairly so as to bring
home to him the exact case he will have to meet
and thereby, an opportunity is given to him to
explain any such point."(Emphasis Supplied)

18. The above observations have been
cited in a recent three-judge Bench decision of
802 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court in Maheshwar Tigga v. State
of Jharkhand : (2020) 10 SCC 108, wherein, in
paragraph 8, it was observed as follows:-

"8. It stands well settled that
circumstances not put to an accused under
Section 313 Cr.P.C. cannot be used against
him, and must be excluded from consideration.
In a criminal trial, the importance of the
questions put to an accused are basic to the
principles of natural justice as it provides him
the opportunity not only to furnish his defence,
but
also
to
explain
the
incriminating
circumstances against him. A probable defence
raised by an accused is sufficient to rebut the
accusation without the requirement of proof
beyond reasonable doubt."

(Emphasis Supplied)

19. Having examined the relevant
provisions of the Code and the decisions noticed
above, the legal principle deducible is that the
circumstances appearing against the accused in
the evidence led during the course of trial must
be put to the accused in a form that the accused
could understand as to what circumstances
appearing against him in the evidence, he has to
explain. The language and the manner in which
those circumstances are put to the accused
assumes importance as that enables a person to
have a clear picture of the circumstances which
he has to explain. An incriminating circumstance
appearing in the evidence not put to the accused
to have his explanation is ordinarily to be
eschewed from consideration.

20. Now, we shall examine as to what is
the test to determine whether the accused has
been fairly examined and whether a lapse in
putting the incriminating circumstance to the
accused in the manner required by law, vitiates
the trial. And if there is any such lapse by

21. In Jai Dev and others v. State of
Punjab : AIR 1963 SC 612, a three- judge Bench
of the Apex Court, with reference to section 342 of
1898 Code (pari materia with section 313 of the
1973 Code), in paragraph 21 of its judgment,
observed as follows:-

"21. ..........The examination of the
accused person under a.