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2023 DIGILAW 2564 (ALL)

Sonu @ Paua @ Beedi v. State of U. P.

2023-11-09

ASHWANI KUMAR MISHRA, NAND PRABHA SHUKLA

body2023
JUDGMENT : Ashwani Kumar Mishra, J. 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 : 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. 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 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 PW-5, 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. 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 11.9.2023.'' 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. 9. List this matter on 11.9.2023.'' 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 : 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 : 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. - (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 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. 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. 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 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. 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 v. 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. 22. In Rahul v. 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 cross-examined and many other important witnesses were not adequately cross-examined 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, (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. 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 cross-examination 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 evidence-collecting 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, (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 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. If a 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 re-examination, 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 v. State of Kerala, rep. By the Circle Inspector of Police Puthencruzm, Kerala, 1993 AIR (SC) 1892. Para 11 of the judgment in Varkey Joseph (supra) is reproduced hereinafter : ''11. What exactly constitutes the leading evidence in a trial has been aptly put by the Supreme Court in Varkey Joseph v. State of Kerala, rep. By the Circle Inspector of Police Puthencruzm, Kerala, 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 the Court, is declared hostile and cross-examination 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. 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. 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. 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 v. 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. 35.5 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 substantive nor a substitute piece of evidence. It does not discharge but reduces the prosecution's burden of leading evidence to prove its case. They are to be used to examine the veracity of the prosecution's case. 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 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. 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.