The examination of the accused under Section 313 of the Criminal Procedure Code (Cr P C) by the trial court is popularly known as “313 examination” and the statement deriving out of it is called “313 Statement”.
Purpose of 313 Examination
The purpose of 313 examination is primarily to provide the accused an opportunity to explain the actual facts about the incriminating circumstances against him on one hand, and the court a chance to examine the accused in an environment free from fear of the accused being unnecessarily trapped into embarrassing admission on the other.
The Section 313 has another limb also. The court can ask the accused any question as the court considers necessary at any stage of the trial without even warning him. It is a great procedural power granted to the court to know what really the circumstances of the crime were. That part is not the point of discussion here.
A Golden Chance for the Accused
The examination is a golden chance for the accused to state before the court what the truth is, in regard to the offence charged against him. It provides him an easy option for acquittal if he is definitely innocent - despite that the evidence creates a tough smokescreen due to unreasonable interconnection of events that the prosecution brings forth. It works well for the benefit of both the accused and the court when the defence witnesses are weak and the circumstances are not quite in favour of the accused. The examination cannot be used for nailing the accused. To nail the accused the prosecution story should stand on its own legs.
The examination is done after the witnesses for the prosecution have been examined and before the accused is called upon to enter into his defence. It is in fact a supernumerary examination, in addition to the examination of witnesses of the prosecution, defence and court, in order to fortifying the disparate events into a whole story of facts and truth. The examination is really a procedural safeguard for the accused to directly tell the court what actually had happened. It provides a proper and adequate opportunity for the accused to explain his innocence if he is really innocent and he has been unnecessarily brought to book due to some deceptive circumstances. The explanation of the accused will be weighed by the court against the prosecution story to see whether the investigation is fair or a fabricated one.
Questions must be Comprehensible
The question to be asked under this examination should be couched in a form which is understandable to even an illiterate person. A complex question involving a number of facets of the issue in one string should be avoided.
The questions put to the accused must be comprehensible to him. The question should not contain more than one circumstance or a combination of several instances. The question must be fair. The court cannot ask any question on a matter when there is absolutely no evidence about it. Inquisitorial questions cannot be asked to trap the accused or compel him to make incriminating admissions. In this examination, it is improper for the court to read out a long string of question and ask the accused whether the statement is correct or not. The accused must be questioned about each material circumstance separately so as to provide the accused an opportunity for fair explanation. If the trial court does not give the accused an opportunity for explaining the facts as he prefers, the appellate court can do so.
The court cannot opt for pick and choose selection procedure in putting questions. Each and every circumstance emerging from the record against the accused is to be put to him. If the accused keep silence or fail to give an explanation, it can be treated as a circumstance standing against him even though he has the right to keep silence as per law. It is the duty of the court to bring the attention of the accused to every incriminating material but the court cannot accept the incriminating part of the answer and reject the exculpatory part.
The personal examination under the Section 313 cannot be substituted by the examination of the Counsel of the accused. That the court asking the accused what he has to say about the prosecution evidence in general, is not good enough for the court under Section 313, but he must be asked about each material circumstance against him. Under this examination, the court cannot split a statement of the accused into two and take one part and reject the other. The statement should be taken as a whole and in its right spirit in which the accused intends it to be.
Not Substantive Evidence
The 313 statement is not substantive evidence and conviction cannot be made on its basis alone. But it can be considered for believing the prosecution story if it is a supportive one. The statement cannot be used in punishing the accused in the case, as per law. On the other hand, if the statement he makes in the court is convincing enough to setup his innocence, the court can acquit him. The object of questioning under Section 313 is not to build the case against the accused or to fill up the lacunae in the prosecution evidence but to enable the accused to tell the truth of the prosecution story and to acquit him if he is really innocent.
Questioning “generally on the case”, as the provision states, does not mean asking the accused general questions regarding the offence. It means nothing but the questions must relate to the whole case and not limited to some of the aspects. Circumstances not included in the evidence cannot be put to the accused. The court cannot use any document from outside the evidence when the accused is examined under this section. When more than one accused is tried each one should separately be questioned under this section. Non-examination of the accused under this section will also be prejudicial and result in injustice to the accused.
The mode of recording the statement should be as provided for in Section 281 of the Code. The whole of such examination including every question put to him and every answer given by him shall be recorded in full by the judge himself. The record shall be shown and read to the accused before getting his signature. In this examination, it is not essential for the court to consult the defence council in regard to the nature, circumstances and type of questions to be put to the accused.
Questioning must be Fair
It must be remembered that the 313 statement is for the benefit of the accused. Mixing up distinct matters will not give the accused a fair opportunity to explain the circumstances that appear against him. The questions as in the nature of cross examination cannot be put to the accused as the examination is for the accused to explain the incriminating circumstances. The accused, under the Section 313, is to be questioned not to get the inference that flows from the circumstances against the accused but to rule out even the remote possibility of any trace of innocence of the accused. However the prosecution must stand on its own legs. If the evidence that the prosecution provides does not inspire confidence in sustaining the conviction of the accused, the court should not take the incriminating part of his statement alone, as the sole basis of his conviction. Before questioning the accused under the section, the court must be quite clear in its mind in regard to the issues of the case to be proved by the prosecution and the circumstances upon which the prosecution wishes to rely.
In fact, the examination of the accused under this section establishes a direct dialogue between the accused and the court. It is being done in accordance with the principles of natural justice and it enables the accused to justify his innocence, if he is in truth innocent. The failure of the accused to mention some facts in his 313 statement may weaken his defence. Both non-compliance of mandatory provisions of 313 and non-questioning by the prosecution on certain matters, are not sound reasons to acquit the accused.
No Conviction solely on the Statement
Conviction of the accused cannot be based merely on the statement made under section 313 Cr PC. The statement cannot be used against the accused in the case but can be used in any other case but it can be a germane consideration for the court if the prosecution has established the chain of evidence reasonably well.
Above all we must not forget that in a criminal case, the accused is not required to prove his innocence but if he can he will get an easy and early acquittal. This examination is an extraordinary option for the accused to prove his innocence if he is really innocent.
Additional Reading: Case Laws