It is most reassuring, most refreshing and most remarkable to note that as recently as on September 28, 2020, the Supreme Court in a latest, landmark and laudable judgment titled Maheshwar Tigga vs State of Jharkhand in Criminal Appeal No. 635 of 2020 (Arising out of SLP (Crl.) No. 393 of 2020) has made it crystal clear in no uncertain terms that the circumstances not put to an accused under Section 313 of the Code of Criminal Procedure cannot be used against him and must be excluded from consideration.

No matter how heinous the crime may be, it cannot be denied that the accused too has certain legal rights which cannot be taken away by anyone as per their own whims and fancies! This is what the Apex Court has underscored in this noteworthy case while acquitting a rape accused. Also, it goes without saying that justice must not only be done but also seen to be done!

To start with, this notable judgment authored by Justice Navin Sinha for himself, Justice RF Nariman and Justice Indira Banerjee of the Apex Court first and foremost sets the ball rolling by noting in para 2 that, The appellant assails his conviction under Sections 376, 323 and 341 of the Indian Penal Code (in short, IPC) sentencing him to seven years, one year and one month respectively with fine and a default stipulation.

While elaborating on the facts of the case, it is then stated in para 3 that, The prosecutrix, PW9 lodged FIR No. 25 of 1999 on 13.04.1999 alleging that four years ago the appellant had outraged her modesty at the point of a knife. He had since been promising to marry her and on that pretext continued to establish physical relations with her as husband and wife. She had also stayed at his house for fifteen days during which also he established physical relations with her. Five days prior to the lodging of the F.I.R. the appellant had established physical relations with her on 09.04.1999. The appellant had cheated her as now he was going to solemnise his marriage with another girl on 20.04.1999. All efforts at a compromise had failed.

As it turned out, para 4 then envisages that:
The Additional Judicial Commissioner, Ranchi on consideration of the evidence convicted the appellant holding that the prosecutrix was 14 years of age when the appellant had first committed rape upon her at the point of a knife. He did not abide by his promise to marry her. The High Court dismissing the appeal opined that the letters written by the appellant to the prosecutrix, their photographs together, and the statement of the appellant recorded under Section 313 Cr.P.C. were sufficient to sustain the conviction.

On the one hand, it is stated in para 5 that:
Learned senior counsel, Mrs V. Mohana on behalf of the appellant, submits that the F.I.R lodged belatedly after four years was clearly an afterthought. The entire genesis of the allegations is highly doubtful and suspect as the prosecutrix in her cross-examination admitted that the appellant had not committed rape with her on 09.04.1999. The letters written by the appellant to the prosecutrix as also those written by her to the appellant marked as Exhibits during trial, more than sufficiently established a deep love affair between them over a period of time. The prosecutrix was aged approximately 25 years as opined by P.W. 10, the Doctor who medically examined her on 14.04.1999.

The physical relationship between the appellant and the prosecutrix were consensual in nature occasioned by their love affair. No offence under Section 375 IPC is therefore, made out. The questions put to the appellant under Section 313 Cr.P.C. were very casual and perfunctory, leading to denial of proper opportunity of defence causing serious prejudice to him by denial of the right to a fair trial. The marriage between them could not materialise due to societal reasons as the appellant belonged to the Scheduled Tribe, while the prosecutrix was a Christian. Reliance was placed on:

• Parkash Chand vs. State of Himachal Pradesh, (2019) 5 SCC 628,
• Vijayan vs. State of Kerala, (2008) 4 SCC 763,
• Kaini Rajan vs. State of Kerala, (2013) 9 SCC 113,
• Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 and
• Uday vs. State of Karnataka, (2003) 4 SCC 46.

On the other hand, it is then stated in para 6 that:
Ms. Pragya Baghel, learned counsel for the State, submitted that the prosecutrix stood by the allegations during trial. The delay in lodging the FIR has been sufficiently explained by reason of the compromise efforts which failed to materialise. P.W. 7, the sister of the prosecutrix had also confirmed that the latter was sexually assaulted by the appellant at the point of a knife and had come home crying. The appellant had told the prosecutrix to keep quiet in his absence, revealing that his intentions were not bonafide.

The defence of a consensual relationship is irrelevant considering that the prosecutrix was fourteen years of age. The appellant had held out a false promise of marriage only to establish physical relations with the prosecutrix. He never had any such intentions from the very inception, and he obtained the consent of the appellant by a false misrepresentation, which is no consent in the eyes of the law. The evidence of the prosecutrix is reliable.

All told, the Bench then while noting the glaring discrepancies in prosecutrix evidence minces no words to observe in para 7 that:
We have considered the submissions on behalf of the parties. The prosecutrix in her deposition dithered with regard to her age by first stating she was sixteen years on the date of occurrence and then corrected herself to state she was thirteen. Though she alleged that the appellant outraged her modesty at the point of a knife while she was on way to school, no name of the school has been disclosed either by the prosecutrix or her parents P.W. 5 and 6.

If the prosecutrix was studying in a school there is no explanation why proof of age was not furnished on basis of documentary evidence such as school register etc. P.W.10, in cross examination assessed the age of the prosecutrix to be approximately twenty-five years. P.W.2, the cousin (brother) of the prosecutrix aged about 30 years deposed that she was six years younger to him. There is thus wide variation in the evidence with regard to the age of the prosecutrix.

The Additional Judicial Commissioner held the prosecutrix to be fourteen years of age applying the rule of the thumb on basis of the age disclosed by her in deposition on 18.08.2001 as 20 years. In absence of positive evidence being led by the prosecution with regard to the age of the prosecutrix on the date of occurrence, the possibility of her being above the age of eighteen years on the date cannot be ruled out. The benefit of doubt therefore has to be given to the appellant.

On the face of it, it is then revealed in para 8 that, A bare perusal of the examination of the accused under Section 313 Cr.P.C. reveals it to be extremely casual and perfunctory in nature. Three capsule questions only were asked to the appellant as follows which he denied:

Question1. There is a witness against you that when the informant V. Anshumala Tigga was going to school you were hiding near Tomra canal and after finding the informant in isolation you forced her to strip naked on knifepoint and raped her.

Question 2. After the rape when the informant ran to her home crying to inform her parents about the incident and when the parents of the informant came to you to inquire about the incident, you told them that if I have committed rape then I will keep her as my wife.

Question 3. On your instruction, the informant's parents performed the Lota Paani ceremony of the informant, in which the informant as well as your parents were present, also in the said ceremony your parents had gifted the informant a Saree and a blouse and the informant's parents had also gifted you some clothes.

Most significantly and most remarkably, the Bench then minces no words to put forth in para 9 that, 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. This Court, time and again, has emphasised the importance of putting all relevant questions to an accused under Section 313 Cr.P.C. In Nand Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was held to be an essential part of a fair trial observing as follows:-

5......The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC 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 questions 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 ad 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 a slipshod manner, it may result in imperfect appreciation of evidence...

To conclude, the long and short of this extremely laudable judgment is that the appellant was ultimately acquitted of rape charges considering the inevitable and irrefutable fact that the Apex Court made it abundantly clear that the circumstances not put to an accused under Section 313 CrPC cannot be used against him and must be excluded from consideration.. In the last para 21, it is then held in simple and straight language that, In conclusion we find the conviction of the appellant to be unsustainable and set aside the same. The appellant is acquitted. He is directed to be set at liberty forthwith unless wanted in any other case. The appeal is allowed. Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001