S. 313 CrPC | Procedure Adopted By Trial Court Must Be Such That It Could Be Understood By An Illiterate Person: Meghalaya HC

The Meghalaya High Court has recently noted that the procedure adopted by the trial court in discharging its duty towards the object of Section 313 of CrPC (Power to examine the accused) must be couched in a form which an ignorant or illiterate person may be able to appreciate and understand. A bench of Justice B. Bhattacharjee underscored that while recording an illiterate accused's statement under Section 313 CrPC the Court should adopt a careful and attentive approach. The Court made these observations while allowing a criminal appeal of an accused convicted under Section 3(a)/4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and was awarded a sentence of 7 (seven) years of rigorous imprisonment. The case in brief As per the prosecution's case, at midnight of 17-08- 2018, the accused sexually assaulted a 10-year-old boy (victim). After completion of the investigation, a charge sheet under Section 5(m)/6 POCSO Act was submitted against the appellant. On production of the appellant before the Trial Court, he was provided with a State defence Counsel and after hearing both the parties, the charge under Section 5(m)/6 POCSO Act was framed against the appellant on 16-08-2019. The prosecution examined 8 witnesses and exhibited 6 documents and 2 material exhibits before the Trial Court in support of its case. The appellant was examined under 313 CrPC after completion of the prosecution witness, however, he declined to adduce any defence witness. The matter was finally heard thereafter by the Trial Court and the impugned judgment and order of conviction and order of sentence was passed. High Court's observations In the appeal, the High Court, after perusing the evidence noted that the victim had not been produced before the Trial Court for recording his evidence and the Trial Court based its order of conviction mainly on the deposition of PW1 i.e., mother of the Victim, statement of the Victim recorded under Section 164 CrPC, the evidence of PW 2 i.e., the medical expert, statement of the survivor made under Section 161 CrPC, the statement of the appellant under Section 313 CrPC and by drawing the assistance of presumption under Section 29 of POCSO Act. The Court noted that the Trial Court referred to the statement made by the survivor under Section 161 CrPC, even though this provision puts a clear embargo on the admissibility of a statement made by any person to a police officer in the course of investigation. The Court also found faults with the Trial Court's order wherein reliance was placed on the statement of the survivor recorded under Section 164 CrPC by drawing corroboration from medical evidence. “The PW1 in her deposition before the Trial Court did not say anything about the injury or bleeding of the survivor. There is nothing in her evidence to show that she herself noticed any discomfort in the physical appearance/movement of the survivor. In such a situation, it was grossly improper for the Trial Court to convict the appellant on the basis of corroborating evidence drawn from the statement of the survivor under Section 161 Cr.P.C. and 164 Cr.P.C. and the medical evidence,” the Court observed. Regarding the statement of the Accused under Section 313 CrPC, the Court noted that in his statement, the accused had only stated that he was present at the place of occurrence and also that he slept with the survivor on that night, however, he denied to have committed the alleged offence. The Court noted that the order sheet revealed that the appellant was physically present before the Court at the time of recording of his statement under Section 313 CrPC on April 12, 2022, however, he had put his thumb impression on all 4 pages of the statement in presence of the Assistant Superintendent, District Prison and Correctional Services, Jowai, who also signed all the pages on 20-04-2022. Against this backdrop, the Court observed that if the statement was recorded on 12- 04-2022 by the Trial Court in the physical presence of the appellant-accused, there was no justification for taking of the thumb impression of the appellant on the statement in the presence of the Assistant Superintendent on 20-04-2022. “The date of signature and note made by the Assistant Superintendent on the last page would mean that the appellant also put his thumb impression on 20-04-2022 and not on 12- 04-2022 i.e. the day on which he made his statement under Section 313 Cr.P.C. Moreover, Section 281 (5) Cr.P.C. mandates that the memorandum of the statement of the accused shall be signed only by the accused and by the magistrate or presiding Judge,” the Court observed. The Court added that this fact raised a serious question as to how and when the statement of the appellant was recorded under Section 313 CrPC. Noting that the appellant was an illiterate person and required a careful and attentive...

S. 313 CrPC | Procedure Adopted By Trial Court Must Be Such That It Could Be Understood By An Illiterate Person: Meghalaya HC

Sparsh Upadhyay

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