# Sonu @ Paua @ Beedi & Anr v. State of U.P

- **Citation:** (2023) 11 ILRA 36
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-09
- **Case number:** J. Capital Case No. 9 of 2020
- **Bench:** Ashwani Kumar Mishra, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-paua-beedi-anr-v-state-of-u-p-49464
- **Pages:** 12

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Sections 276, 313, 366
& 367 - The Evidence Act,1872- Sections
119 & 165---Proper procedure has not been
followed in recording of the St.ment of accused
under Section 313 Cr.P.C. 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 Cr.P.C--- Directions
issued to the court of sessions to record the
St.ment of the accused under Section 313
Cr.P.C. afresh, by formulating proper questions
to 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 St.ment
of accused shall be remitted to this Court at the
earliest. .(E-15)

List of the cases referred-:

## Text

36 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonably see whether the accused's guilt
may be proved. The judgments of this court
have, therefore, emphasized that the
satisfaction which courts are expected to
record, i.e., that the accused may not be
guilty, is only prima facie, based on a
reasonable reading, which does not call for
meticulous examination of the materials
collected during investigation (as held in
Union of India vs. Ratan Malik). Grant of
bail on ground of undue delay in trial,
cannot be said to be fettered by Section 37
of the Act, given the imperative of Section
436A which is applicable to offences under
the NDPS Act too (ref. Satender Kumar
Antil supra). Having 19 (2009) 2 SCC 624
regard to these factors the court is of the
opinion that in the facts of this case, the
appellant deserves to be enlarged on bail. "

21. In view of the law as explained
and a provision which is similar to the one
used in section 19(4)(b), the interpretation
given by the Supreme Court in the case of
Mohd Muslim @ Hussain (supra) would
squarely apply to the cases emanating from
the U.P. Gangsters Act. Thus, on the basis
of the said interpretation, this court can
form a view that the applicant may not be
prosecuted for the offence on the basis of
the material particularly when the material
to form a view that there was a disturbance
of 'public order' is missing. In view
thereof, the first of the twin conditions
stands satisfied.

22. As regards the second of the twin
conditions, there is no material on record to
suggest that the applicant is wanted in any
case of a similar nature where he has
threatened the accused, thus, in view of the
law laid down in the case of Ranjitsingh
Brahmajeetsing Sharma vs. State of
Maharashtra, (2005) 5 SCC 294, this court
can form a view that the accused, if
enlarged on bail, would not indulge in a
similar offence.

23. On the basis of the interpretation
and the findings recorded above, the
applicant is entitled for the bail. Thus, the
bail application is allowed.

24. Let the applicant Angad Rai
Alias Jhullan Rai be released on bail in
aforesaid first information report number
subject to his furnishing a personal bond
and two reliable sureties each of the like
amount to the satisfaction of the court
concerned with the following conditions:

(a) The applicant shall execute a
bond to undertake to attend the hearings;

(b) The applicant shall not
commit any offence similar to the offence
of which he is accused or suspected of the
commission; and

(c) The applicant shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.
----------
(2023) 11 ILRA 36
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.11.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA,
J.

Capital Case No. 9 of 2020
With
Reference No. 6 of 2020
And
Capital Case No. 2 of 2021
And
11 All. Sonu @ Paua @ Beedi & Anr. Vs. State of U.P.
37
Government Appeal No. 23 of 2021

Sonu @ Paua @ Beedi & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
From Jail, Sri Mohd. Raghib Ali, Sri Raj
Kumar Kesari, Sri Saghir Ahmad (Sr.
Advocate)

Counsel for the Opposite Party:
A.G.A.

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Sections 276, 313, 366
& 367 - The Evidence Act,1872- Sections
119 & 165---Proper procedure has not been
followed in recording of the St.ment of accused
under Section 313 Cr.P.C. 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 Cr.P.C--- Directions
issued to the court of sessions to record the
St.ment of the accused under Section 313
Cr.P.C. afresh, by formulating proper questions
to 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 St.ment
of accused shall be remitted to this Court at the
earliest. .(E-15)

List of the cases referred-:

1. Rahul Vs St. of Delhi, 2023 (1) SCC 83

2. Supreme Court in Varkey Joseph Vs St. of
Kerala, rep. By the Circle Inspector of Police
Puthencruzm, Kerala, reported in 1993 AIR (SC)
1892

3. Indrakunwar Vs St. of Chandigarh, 2023 SCC
OnLine SC 1364

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This Court is ceased of 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. This brother was
produced during the trial as PW-5. Heavy
reliance is placed upon the statement of
PW-5 for conviction and sentence of the
accused appellants.

2. When the statement of PW-5 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.

3. We deem it appropriate to
reproduce pages 74 and 78 of the paper
book, as it reveals the manner in which the
statement was recorded. Pages 74 and 78
are reproduced hereinafter:-

"Page-74:-20-2-19

गवाह निनिि को मुख्य परीक्षा में पूछे गये प्रश्नो का निखकर
निये गये जबाब निम्ि है।
िीिीि
सोिू
10
हा
पाप
कोट
जज साब
5 िारीक 9 2018
िही
5 िारीक से 9
हा
मेरी गरिि काटी
अंकुर
बीच वािे ि
हा अमरजीि
िीचे था
िाढी
चाकू से काठी
कमरे में
मेरी िीिी को बोरी में िे जा
रहा था
मेरी िीिी के हाथ और नसर
बार िकरे थे
जाि पे
कमरे में
मे बेहू हो गया कमरे में
िोरी िेर
हा हा
38 INDIAN LAW REPORTS ALLAHABAD SERIES
अंकुर
कमरे में टी०वी िेखिा रहा था
मेरी िीिी की चीक की आवाज
आई
अंकुर सोिू अउआ
मम्मी माम के गई
पापा जंगि गये
में और िीिी, हा हा

sd. Nitin 20-2-19

"Page-78:- प्रनि परीक्षा में पूछे गये प्रश्नो के उत्तर

T.S.S.
हा
कीिास 4
हापुड़ में
िही
टीचर िीि
िही पिा
हा जब िही था
बोि सारा था
हा कूि था
बाई ििीि
पिािा कोि था
हा/हा हा हा
िही
हा
िील्िी
पिािी िही
हा
हा
हीमासू
ममी के साथ
िही
T.V.
हा
िही
पिािी िही
पिािी िही
अंकूि सोिू अमरजी
िही

sd. Nitin 21-2-19"

4. Though the Trial Judge had
connected the answers to various questions
posed to PW-5, but since the questions and
answers scripted were not relatable, as such
this Court found it difficult to rely upon the
statement of PW-5 in respect of the
incident. A detailed order was accordingly
passed on 28.4.2023 for the statement of
PW-5 to be recorded again, which is
reproduced hereafter:-

"1. Heard Sri Saghir Ahmad,
learned Senior Counsel, as Amicus Curiae,
assisted by Sri Mohd. Raghib Ali, learned
counsel for the appellants in Capital Appeal
No. 9 of 2020; Sri Raj Kumar Kesari,
learned counsel for the appellant in Capital
Appeal No. 2 of 2021; Sri Mohd. Afzal,
learned counsel for the respondent in
Government Appeal No. 23 of 2021 and
Km. Meena, learned AGA for the State.

2. These two capital appeals
alongwith government appeal arise out of
an incident dated 6.9.2018 in which a
young lady was subjected to sexual assault
and then done to death and her brother was
assaulted with a knife and his throat was
cut. The injured brother apparently lost his
ability to speak. The trial court recorded
statement of the injured brother who has
appeared as PW-5 and relying upon his
testimony awarded capital sentence to the
 two accused.

3.
On
behalf
of
accused
appellants, it is urged that the statement of
PW-5 has not been recorded in the manner
stipulated in law, inasmuch as, the
principles laid down in Section 276 (2)
Cr.P.C. have not been followed. Sri Saghir
Ahmad, learned Senior Counsel appearing
as Amicus Curiae has also referred to and
relied upon Section 119 of the Evidence
Act, which provides as under:-

"119.
Dumb
witnesses.--A
witness who is unable to speak 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.
Evidence so given shall be deemed to be
oral evidence."

Reliance is also placed upon
Section 137 of the Evidence Act, in that
regard.

4. We have perused the statement
of PW-5, which is in question-answer form.
The original record also contains two
pages, on which, handwritten answers of
PW-5 exists alongwith his signatures at the
bottom of the page. On this handwritten
answers, there is no reference to the
question pursuant to which such answer is
given. It is thus difficult to read the
11 All. Sonu @ Paua @ Beedi & Anr. Vs. State of U.P.
39
testimony of PW-5. We are thus of the
considered view that the testimony of PW-5
has not been recorded in consonance with
law.

5. In our opinion, interest of
justice would require that the matter be
remitted to the court below for the limited
purposes of recording the statement of PW5, afresh, in accordance with law. We are
persuaded to take such view as it is the
settled principle of law that any error on
part of the court below in recording of
evidence should not occasion in failure of
justice, specially in view of the fact that
both the parties are heavily relying upon
the testimony of PW-5. The additional facet
is that accused appellants are facing capital
punishment primarily on the testimony of
PW-5. It goes without saying that the
incriminating material emanating from the
statement of PW-5 would be confronted to
the accused appellants so as to record their
testimony under section 313 Cr.P.C.

6. Considering the seriousness of
the incident as well as the rights which are
likely to be affected of the individuals, it
would be appropriate to follow the
aforesaid course so as to arrive at a just
conclusion. Learned counsel for the parties
also have no objection to such course being
followed subject to all contentions being
left to be raised at the appropriate stage.

7. In such circumstances, we
direct the original records of this case to be
sent to the concerned court through District
Judge, Hapur, forthwith with the direction
upon the court concerned to record the
statement of PW-5, afresh, in accordance
with the provisions contained in the Code
of Criminal Procedure as well as Indian
Evidence Act and also comply with the
requirement of section 313 Cr.P.C. on such
material. This would be done within a
period of three months.

8.
Court
concerned
after
complying with the above direction shall
send back the records to this Court.

9.
List
this
matter
on
11.09.2023."

5. In compliance of the above
discussions, the copy of the statement of
PW-5 as also the statement of accused
under Section 313 Cr.P.C. have now been
placed before us.

6. Sri Saghir Ahmad, learned Senior
Counsel assisted by Sri Mohd. Raghib Ali,
who appears as Amicus Curiae in the
matter, submits that the manner in which
statement of PW-5 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
Cr.P.C.
Learned
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 accused. Learned 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.

7. In order to appreciate the
submissions advanced at the bar, we have
carefully perused the statement recorded of
PW-5, which is in question-answer form.
The presiding Judge has posed questions
directly to the witness for recording his
chief examination. Some of the questions
posed to the witness are reproduced
hereinafter:-
40 INDIAN LAW REPORTS ALLAHABAD SERIES

"प्रश्न- घटिा नकस िारीख की है?

उ०- 5/9/2018

प्र०- उस वक्त िुम कहााँ थे?

उ०- मैं घर पर टी०वी० िेख रहा था।

प्र०- समय क्या हुआ था?

उ०- समय सुबह के समय 9-10 बजे थे।

प्र०- क्या हुआ था उस निि?

उ०- मेरी बहि की चीखिे की आवाज आई। बहि
मुझसे बड़ी थी। उसका िाम भूनम यािव था। मैं बाहर गया िो अंकुर
व सोिू बहि को मार रहे थे।

प्र०- नकस चीज से मार रहे थे?

उ०- गिा घोट रहे थे। एक गिा घोट रहा था। इििा
ध्याि िही कौि गिा घोट रहा था। निर कहा सोिू गिा घोट रहा
था। निर मैं वहााँ पहुाँचा िो अंकुर िे मेरी गिदि काट िी। मैिे अंकुर व
सोिू को िीिी के साथ गिि काम करिे िेखा था।

प्र०- अंकुर िे आपकी गिदि नकस चीज से काट िी?

उ०- चाकू से । चाकू अंकुर के हाथ में था। "

8. 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. The recital
containing the opinion of the court is
reproduced hereinafter:-

" साक्षी पूछे गए प्रश्नो को भनि भांनि समझकर उत्तर िेिे
में सक्षम है। साक्षी विदमाि में बोििे में सक्षम है यद्यनप साक्षी की बोिी
पूर्दियः स्पष्ट िथा साि िही है। परन्िु साक्षी द्वारा बिाए जा रहे उत्तर
समझ में आ रहे है। "

9. Learned Senior Counsel for the
appellant places reliance upon Section 276 of
the Code of Criminal Procedure, 1973, which is
reproduced hereinafter:-

"276. Record in trial before Court of
Session.- (1) In all trials before a Court of
Session, the evidence of each witness shall, as
his examination proceeds, be taken down in
writing either by the residing Judge himself or
by his dictation in open Court, or under his
direction and superintendence, by an officer of
the Court appointed by him in this behalf.

(2) Such evidence shall ordinarily be
taken down in the form of a narrative, but the
presiding Judge may, in his discretion, take
down, or cause to be taken down, any part of
such evidence in the form of question and
answer.

(3) The evidence so taken down shall
be signed by the presiding Judge and shall form
part of the record."

10. It is argued that chief examination of
witness 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.

11. 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. Section 119 of the
Indian Evidence Act, 1872 is reproduced
hereinafter:-

"119.
Witness
unable
to
communicate verbally. -- A witness who is
unable to speak 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, evidence so given
shall be deemed to be oral evidence:

Provided that if the witness is
unable to communicate verbally, the Court
shall take the assistance of an interpreter or
11 All. Sonu @ Paua @ Beedi & Anr. Vs. State of U.P.
41
a special educator in recording the
statement, and such statement shall be
video graphed."

12. 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 combined 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.

13. There is a reason behind such
scheme.
The
examination-in-chief
is
supposed to contain the narrative of the
witness regarding the incident in question.
Ordinarily the narrative must come in the
witnesses own expression for the evidence
to remain natural. It is this version of the
witness on which the accused gets the right
of cross-examination. However, when the
statement of the witness is recorded in the
form of question-answer the narrative could
be guided by the questions posed.

14. Section 276(2) Cr.P.C. while
requiring the narrative of witness to be
recorded in chief examination permits any
part of such evidence to be taken down in
the form of question answer. A discretion is
recognized in the presiding Judge to take
down or cause to be taken down such part
of the evidence in question answer form.
Section 119 of the Act of 1872 will be
applicable only where the witness is unable
to communicate verbally, which is not the
case here. PW-5 can clearly communicate
verbally and though he stutters but his reply
is intelligible. Reference to Section 119 of
the Act of 1872 has no relevance in this
case.

15. Learned Senior counsel Sri Saghir
Ahmad contends that Section 276(2)
Cr.P.C. since uses the expression 'shall' as
such the provision has to be treated as
being mandatory and does not permit the
entire narrative of witness to be recorded in
question answer form.

16. In order to effectively deal with
the contention it would be apposite to refer
to the provision itself as well as the
stipulations contained in other applicable
legislations.

17. Section 276(2) Cr.P.C. does not
specify as to which part of the evidence is
required to be taken down in question
answer form and which form is to be taken
down in the form of narrative. Though the
statute uses the expression 'shall' indicating
the provision to be mandatory but that itself
is not conclusive of the intent or the nature
of
the
provision.
The
statute
vests
discretion with the presiding Judge in
choosing which part of evidence has to be
42 INDIAN LAW REPORTS ALLAHABAD SERIES
in the form of narrative and which to be in
the nature of question answer.

18. 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.

19. The intent of the statute has also
to be gathered from the use of term
'ordinarily' in sub-section (2) of Section
276 Cr.P.C. 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.

20. Sri Rajiv Lochan Shukla,
advocate, in opposition to the proposition
argued on behalf of appellants relies upon
Section 165 of the Indian Evidence Act,
1872 which defines Judge's power to put
questions. Section 165 of the Act of 1872 is
reproduced hereinafter:-

"165. Judge's power to put
questions or order production.-The Judge
may, in order to discover or to obtain
proper proof of relevant facts, ask any
question he pleases, in any form, at any
time, of any witness, or of the parties, about
any fact relevant or irrelevant; and may
order the production of any document or
thing; and neither the parties nor their
agents shall be entitled to make any
objection to any such question or order,
nor, without the leave of the Court, to
cross-examine any witness upon any
answer given in reply to any such question:
Provided that the Judgment must be based
upon facts declared by this Act to be
relevant, and duly proved: Provided also
that this section shall not authorize any
Judge to compel any witness to answer any
question, or to produce any document
which such witness would be entitled to
refuse to answer or produce under sections
121 to 131, both inclusive, if the questions
were asked or the documents were called
for by the adverse party; nor shall the Judge
ask any question which it would be
improper for any other person to ask under
section 148 or 149; nor shall he dispense
with primary evidence of any document,
except in the cases hereinbefore excepted."

21. Section 165 of the Act of 1872
vests wide discretion in the Judge to ask
any question he pleases, in any form, about
any fact relevant or irrelevant to discover or
to obtain proof of relevant facts. Such
power is not circumscribed. The presiding
Judge is otherwise expected to participate
actively in the trial by putting questions to
the witnesses in order to ascertain the truth.

22. In Rahul Vs. State of Delhi, 2023
(1) SCC 83, the Supreme Court has
emphasized the role of presiding Judge
during the conduct of trial to ascertain the
truth of the matter. The observations made
by the Court in para 43 to 45 are relevant
and are reproduced hereinafter:-

"43. The Court is constrained to
make these observations as the Court has
noticed
many
glaring
lapses
having
occurred during the course of the trial. It
has been noticed from the record that out of
the
49
witnesses
examined
by
the
prosecution, 10 material witnesses were not
11 All. Sonu @ Paua @ Beedi & Anr. Vs. State of U.P.
43
cross-examined and many other important
witnesses were not adequately crossexamined by the defence counsel. It may be
reminded that Section 165 of the Evidence
Act confers unbridled powers upon the trial
courts to put any question at any stage to
the witnesses to elicit the truth. As
observed in several decisions, the Judge is
not expected to be a passive umpire but is
supposed to actively participate in the trial,
and to question the witnesses to reach to a
correct conclusion.

44.
This
Court
while
not
accepting the submission that it was
improper for the Court to have interjected
during the course of cross-examination of
the witness, had observed in State of
Rajasthan v. Ani [State of Rajasthan v. Ani,
(1997) 6 SCC 162 : 1997 SCC (Cri) 851]
thus : (SCC pp. 166-67, paras 11-13)

"11. We are unable to appreciate
the above criticism. Section 165 of the
Evidence Act confers vast and unrestricted
powers on the trial court to put "any
question he pleases, in any form, at any
time, of any witness, or of the parties, about
any fact relevant or irrelevant" in order to
discover relevant facts. The said section
was framed by lavishly studding it with the
word "any" which could only have been
inspired by the legislative intent to confer
unbridled power on the trial court to use the
power whenever he deems it necessary to
elicit truth. Even if any such question
crosses into irrelevancy the same would not
transgress beyond the contours of powers
of the court. This is clear from the words
"relevant or irrelevant" in Section 165.
Neither of the parties has any right to raise
objection to any such question.

12. Reticence may be good in
many circumstances, but a Judge remaining
mute during trial is not an ideal situation. A
taciturn
Judge
may
be
the
model
caricatured in public mind. But there is
nothing wrong in his becoming active or
dynamic during trial so that criminal justice
being the end could be achieved. Criminal
trial should not turn out to be a bout or
combat between two rival sides with the
Judge performing the role only of a
spectator or even an umpire to pronounce
finally who won the race. A Judge is
expected to actively participate in the trial,
elicit necessary materials from witnesses in
the appropriate context which he feels
necessary
for
reaching
the
correct
conclusion. There is nothing which inhibits
his power to put questions to the witnesses,
either during chief examination or crossexamination or even during re-examination
to elicit truth. The corollary of it is that if a
Judge felt that a witness has committed an
error or a slip it is the duty of the Judge to
ascertain whether it was so, for, to err is
human and the chances of erring may
accelerate under stress of nervousness
during cross-examination. Criminal justice
is not to be founded on erroneous answers
spelled out by witnesses during evidencecollecting process. It is a useful exercise for
the trial Judge to remain active and alert so
that errors can be minimised.

13. In this context it is apposite to
quote the observations of Chinnappa
Reddy, J. in Ram Chander v. State of
Haryana [Ram Chander v. State of
Haryana, (1981) 3 SCC 191 : 1981 SCC
(Cri) 683] : (SCC p. 193, para 2)

'2. The adversary system of trial
being what it is, there is an unfortunate
tendency for a Judge presiding over a trial
to assume the role of a referee or an umpire
and to allow the trial to develop into a
contest between the prosecution and the
defence with the inevitable distortions
flowing from combative and competitive
elements entering the trial procedure. If a
44 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal court is to be an effective
instrument in dispensing justice, the
presiding Judge must cease to be a
spectator and a mere recording machine.
He must become a participant in the trial by
evincing intelligent active interest by
putting questions to witnesses in order to
ascertain the truth.' "
(emphasis in original)

45. In the instant case, material
witnesses examined by the prosecution
having not been either cross-examined or
adequately examined, and the trial court
also having acted as a passive umpire, we
find that the appellant-accused were
deprived of their rights to have a fair trial,
apart from the fact that the truth also could
not be elicited by the trial court. We leave it
to the wisdom and discretion of the trial
courts to exercise their powers under
Section 165 of the Evidence Act for
eliciting the truth in the cases before them,
howsoever heinous or otherwise they may
be."

23. A co-joint reading of Section
276(2) Cr.P.C. and Section 165 of the Act
of 1872 in light of the discussions held
above would clearly indicate that the
procedure of ordinarily recording the
evidence of a witness in the form of
narrative and recording only part in
question answer form is directory and not
mandatory.

24. Sri Saghir Ahmad also submitted
that the questions posed to the witness
(PW-5) were in the nature of leading
questions and have thus caused prejudice to
the accused.

25. Leading question is defined in
Section 141 of the Act of 1872 and has to
be read in conjunction with Section 142
which are reproduced hereinafter:-

"141. Leading questions.-Any
question suggesting the answer which the
person putting it wishes or expects to
receive, is called a leading question.

142. When they must not be
asked.-Leading questions must not, if
objected to by the adverse party, be asked
in an examination-in-chief, or in a reexamination, except with the permission of
the Court. The Court shall permit leading
questions
as
to
matters
which
are
introductory or undisputed, or which have,
in its opinion, been already sufficiently
proved."

26. What exactly constitutes the
leading evidence in a trial has been aptly
put by the Supreme Court in Varkey Joseph
Vs. State of Kerala, rep. By the Circle
Inspector of Police Puthencruzm, Kerala,
reported in 1993 AIR (SC) 1892. Para 11 of
the judgment in Varkey Joseph (supra) is
reproduced hereinafter:-

"11. Leading question is one
which indicates to the witnesses the real or
supposed
fact
which
the
prosecutor
(plaintiff) expects and desires to have
confirmed by the answer. Leading question
may be used to prepare him to give the
answers to the questions about to be put to
him for the purpose of identification or to
lead him to the main evidence or fact in
dispute. The attention of the witness cannot
be directed in chief examination to the
subject of the enquiry/trial. The court may
permit leading question to draw the
attention of the witness which cannot
otherwise be called to the matter under
enquiry,
trial
or
investigation.
The
discretion of the court must only be
controlled towards that end but a question
which suggests to the witness the answer
the prosecutor expects must not be allowed
unless the witness, with the permission of
11 All. Sonu @ Paua @ Beedi & Anr. Vs. State of U.P.
45
the court, is declared hostile and crossexamination is directed thereafter in that
behalf. Therefore, as soon as the witness
has been conducted to the material portion
of his examination, it is generally the duty
of the prosecutor to ask the witness to state
the facts or to give his own account of the
matter making him speak as to what he had
seen. The prosecutor will not be allowed to
frame his questions in such a manner that
the witness by answering merely "yes" or
"no" will give the evidence which the
prosecutor wishes to elicit. The witness
must account for what he himself had seen.
Sections 145 and 154 of the Evidence Act
are intended to provide for cases to
contradict the previous statement of the
witnesses
called
by
the
prosecution.
Sections 143 and 154 provide the right to
cross-examination of the witnesses by the
adverse party even by leading questions to
contradict answers given by the witnesses
or to test the veracity or to drag the truth of
the statement made by him. Therein the
adverse party is entitled to put leading
questions but Section 142 does not give
such power to the prosecutor to put leading
questions on the material part of the
evidence which the witness intends to
speak
against
the
accused
and
the
prosecutor shall not be allowed to frame
questions in such a manner to which the
witness answer merely "yes" or "no"; but
he shall be directed to give evidence which
he witnessed. The question shall not be put
to enable the witness to give evidence
which the prosecutor wishes to elicit from
the witness nor the prosecutor shall put into
witness's mouth the words which he hoped
that the witness will utter nor in any other
way suggest to him the answer which it is
desired that the witness would give. The
counsel must leave the witness to tell
unvarnished tale of his own account.
Sample
leading
questions
extracted
hereinbefore clearly show the fact that the
prosecutor led the witnesses to what he
intended that they should say on the
material part of the prosecution case to
prove against the appellant which is illegal
and obviously unfair to the appellant
offending his right to fair trial enshrined
under Article 21 of the Constitution. It is
not a curable irregularity."

27.

We
have
considered
the
submissions advanced on behalf of the
appellant in this regard. The questions and
the
answers
put
to
PW-5
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
leading question. Moreover, no objection
was otherwise taken on behalf of the
accused during trial to posing of such
questions as was required in terms of
Section 142 of the Act of 1872. We,
therefore, reject the argument of Sri Ahmed
on this score, too.

28. Next submission of Sri Ahmed is
with regard to non-compliance of Section
313 Cr.P.C. in recording of the statement of
the
accused
with
reference
to
the
incriminating
circumstances
emerging
against him from the evidence of PW-5. It
is submitted that each circumstance ought
to have been separately put as a question to
the accused for recording his statement for
protecting the right of accused under
Section 313 Cr.P.C.

29. We have perused the records and
we find that the entire evidence of PW-5
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.
46 INDIAN LAW REPORTS ALLAHABAD SERIES

30. Section 313 Cr.P.C. confers an
important right in the accused to explain
the circumstances that emerge against him
on the basis of evidence led by the
prosecution in the case. The right of the
accused has been analyzed by the Supreme
Court
in
Indrakunwar Vs.
State
of
Chandigarh, 2023 SCC OnLine SC 1364.
After referring to the applicable judgments
on the issue, the Court has crystallized the
principles for exercise of power under
Section 313 Cr.P.C. in para 35 which are
reproduced hereinafter:-

"35.
A
perusal
of
various
judgments rendered by this Court reveals
the following principles, as evolved over
time when considering such statements.

35.1 The object, evident from the
Section itself, is to enable the accused to
themselves explain any circumstances
appearing in the evidence against them.

35.2 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.

35.3 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.

35.4 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.

35.5 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.

35.6 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.

35.7 This statement cannot form
the sole basis of conviction and is neither a
substant
ive 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.

35.8 This statement is to be read as
a whole. One part cannot be read in isolation.

35.9 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.

35.10 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.

35.11 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 carefully
scrutinized and considered.

35.12 Non-compliance with the
Section may cause prejudice to the accused
and may impede the process of arriving at a
fair decision."

31. 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.

32. The substance of the evidence of
PW-5
was
required
to
have
been
11 All. Rajesh Kumar @ Pappu Vs. State of U.P. & Anr.
47
specifically
formulated,
as
separate
question, and then put to the accused,
which has not been done.

33. 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 well-recognized 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 circumstance cannot be relied
upon against the accused.

34. 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.

35. This reference is made to this
Court under Section 366 Cr.P.C. While
answering the reference this Court is
required to exercise its powers under
Section 366 and 367 Cr.P.C. In the event
this Court finds that proper procedure has
not been followed in recording of the
statement of accused under Section 313
Cr.P.C. it is open for this 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 Cr.P.C.

36. In light of the discussions
aforesaid, we direct 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 accused shall
be remitted to this Court at the earliest.
----------
(2023) 11 ILRA 47
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.11.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSSAIN
IDRISI, J.

Criminal Appeal No. 4982 of 2019
With
Criminal Appeal No. 5346 of 2019
And
Criminal Appeal No. 5347 of 2019

Rajesh Kumar @ Pappu ...Appellants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellants:
Mrs. Vatsala, Sri Dharmendra Singh (Sr.
Advocate), Sri Lav Srivastava, Sri Santosh
Rai, Sri L.M. Singh, Sri V.P. Srivatava (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri Anurag Vajpeyi, Sri Praveen
Kumar Singh
Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 374,386(b)(i) &
391- Postmortem report totally belies the
prosecution story that the alleged named
accused persons gave gun shot to the deceased
persons under the shed of pumping set and
thereafter dragged their cadavers to the 'Well'
and thrown them into it--- The interest of
appellants was literally butchered by the hand of