State of U.P v. Ram Lal Harijan and another), whereby

prosecution relied on oral evidence of the first informant, Mahendra Kushwaha (P.W.1). He proved the relationship between the appellant and the deceased. He also proved the occurrence was caused at the house of the appellant, where the deceased was cohabiting with him. Further, he proved he reached the place of occurrence after the deceased had been set ablaze. He claimed to have called the police on the Helpline number 100. During his examination-in-chief, he further stated that he had heard the deceased at that time wherein she had disclosed that the present appellant had caused the occurrence. Initially, he attempted to prove that the appellant had fled from the spot. However, during his examination-in-chief itself, he altered that stand and alleged that the appellant had taken the deceased to the hospital and got her admitted. He also admitted that he lodged the Written Report on 27.05.2015 i.e. one day after death had been caused. Further, he proved that the ‘Panchayatnama’ was prepared in his presence. During his cross-examination, the said witness admitted the fact that the deceased was married to Rajesh, but she was living with the present appellant of her own free will. He further admitted that the said relationship formed by the deceased with the present appellant, did not have the approval of the paternal family of the deceased. He categorically admitted that he had not seen that the appellant poured kerosene oil upon the deceased, but that he had heard 3 of 20 the deceased say so. On further cross-examination, he stated since the deceased had started living with the present appellant, he had not met the deceased. In that regard, he had earlier stated that the deceased had married the present appellant on 03.06.2014. He further admitted, when he reached the place of occurrence, the deceased was alive, but that he could not speak to her.

9. Thereafter, Chandrawati, the mother of the deceased was examined as P.W.2. She made a similar deposition as her husband, Mahendra Kushwaha (P.W.1). She had also not seen the occurrence being caused by the appellant, but had only seen the deceased after she was ablaze. As to the relationship formed by the deceased with the appellant, she categorically admitted (during her cross examination) that the deceased had married the present appellant and established matrimonial relationship with the appellant through a notarized affidavit dated 03.06.2014.

10. Thereafter, the son of the deceased was examined as P.W.3. During his examination-in-chief, he stated that the appellant and the co-accused had sent him away to a nearby village shop to buy Soda. When he returned, he saw his mother/deceased ablaze. Thus, the said witness also did not claim that he had seen the appellant caused the occurrence. During his cross-examination, he was questioned as to the reason for his going to the village shop as also the time at which he left for that shop and further the duration for which he was away from his home. He described, he had been sent by the appellant and the co-accused, both having given him Rs.5 each to buy Soda. He disclosed that he had gone to the village shop at about 9 or 10 A.M. He reiterated, when he 4 of 20 returned home he saw his mother was ablaze. Though, he asserted that the appellant prevented him from dousing the fire set upon the deceased, at the same time he also maintained that a lot of people were present at that time. However, he could not confirm, whether his maternal grand parents i.e. P.W.1 and P.W.2 were present at that time. He also could not confirm when those witnesses arrived at the place of occurrence. Yet, he confirmed that the appellant had taken the deceased to the hospital. Thereafter, Rajesh Maurya, who was the legally wedded husband of the deceased, was examined as P.W.4. He is not a fact witness of the occurrence.

11. Thereafter, Dr. S.B.S. Kushwaha, who conducted the autopsy was examined as P.W.5. He proved the cause of death and the ante mortem injury. Thereafter, the then S.H.O., In-charge of Police Station Sayedraja, was examined as P.W.-6. He proved initial investigation conducted by him.

12. Further, Sri Nagesh Mishra, the then Inspector In-Charge was examined as P.W.7. Thereafter, Sri Vinod Kumar, Investigating Officer, who submitted the charge sheet was examined as P.W.8. Thereafter, statement of the present appellant, Ram Lal was recorded under 313 Cr.P.C.

13. In that we find besides general reference made to adverse facts, no specific adverse circumstance was put to the accused/appellant. Relevant to our discussion, question no.7 and the answer thereto is quoted below:- “प्रश्न-7 यह कि(cid:10) साक्षी पी.डब्लू.3 सोनू, पी.डब्लू.7 रिरटा. किनरीक्ष(cid:10) नागेश किमश्र (cid:10)े बयान (cid:10)े संबन्ध में आप(cid:10)ो क्या (cid:10)हना है? उत्तर- जी गलत बयान कि(cid:11)ये है” 5 of 20

14. In face of such evidence, the learned court below has convicted the present appellant for the offence under Section 302 I.P.C. It has sentenced him for life.

15. Submission of learned counsel for the appellant is that this is not a case of direct evidence. Rather, the prosecution has relied totally on circumstantial evidence. In that, the chain of evidence is not complete. More than reasonable doubts exist as to who caused the occurrence and the manner in which it may have been caused. Referring to the facts admitted to the prosecution, it has been asserted that deceased was married to Rajesh Maurya in the year 2002. There was matrimonial discord in that marriage. Thereafter, of her own the deceased started living with the present appellant since 03.06.2014 i.e. at least from one year before the occurrence. No prior incident was alleged or proven as may have ever indicated to the Court that the deceased and the appellant were suffering any bad relations or disputes.

16. Coming to the actual occurrence, it has been vehemently urged, none has seen the occurrence. P.W.1 and P.W.2 were clearly not present either at the time of occurrence or soon thereafter. P.W.3 has completely contradicted the statement made by P.W.1 and P.W.2 in that regard. They reached the place of occurrence much later. As to the evidence that appellant caused the occurrence, there is no dying declaration. The statements made by P.W.1 and P.W.2 that appellant had caused the occurrence, is plain hearsay. In any case, P.W.1 brokedown at the end of his cross examination and specifically admitted that the deceased told him nothing.

17. As to the calls made to the police on the helpline number 100, there is no proof. On the contrary, all witnesses of fact 6 of 20 relied by the prosecution namely, PW1, PW2 and PW3, specifically admitted that deceased was admitted to the hospital by the present appellant. Therefore, it is also proved by the prosecution that the appellant had not fled from the spot but arising from the occurrence suffered by the deceased, he had rushed her to the hospital, immediately. The fact that the deceased did not suffer any burn injury on the back of her head, which fact is proven by Dr. S.B.S. Kushwaha, clearly indicates that the occurrence was accidental wherein deceased may have suffered burn injuries, while preparing food. Thus, the injuries were suffered on her face and the frontal areas and not on the back of her head. In any case, the fact that no burn injury was suffered by the deceased on the back of her head, disproves the prosecution allegation that the appellant had first poured kerosene oil over the deceased and thereafter, set ablaze. That nature of occurrence would have necessarily evidenced burn injuries to the back of her head, as well.

18. More substantially, it has been submitted that PW3 is a child witness. He was also not present at the time and place of occurrence (as clearly admitted by him). However, his statement that the appellant had prevented him from helping the deceased or had prevented him from dousing the fire caused to the deceased, is plainly wrong. In the first place, the said witness claimed that he visited the village shop in the morning hours and not afternoon inasmuch as he described to have left home at around 9-10 a.m. and to have returned within 10 minutes, whereas the occurrence undeniably occurred in the afternoon at around 1.30 p.m. During his examination-in-chief, he did not prove that the appellant had prevented him from dousing the fire. For 7 of 20 whatever worth that statement of that witness may be, it loses credibility for the reason that he also admitted that a lot of persons were present, when he returned from the village shop and saw his mother ablaze. If the statement of the said witnesses were true, the prosecution has failed to produce any independent witness to establish such occurrence of either fire being caused by the appellant or of the appellant preventing others from dousing the fire. That fact alleged by the prosecution is also contradicted on the self admission made by the prosecution that the deceased was rushed to the hospital by the appellant. Last, it has been submitted that no adverse circumstance arising from the deposition of PW3 was put to the appellant under Section 313 Cr.P.C. as may have allowed the learned Court below to reach the conclusion that appellant has committed the offence.

19. Further, it has been submitted that conviction may not arise on the strength of Section 106 Evidence Act, inasmuch as the prosecution miserably failed to place the appellant and the deceased inside the house at the time of occurrence, as may allow for that presumption, to be enforced, fully. That circumstance was not squarely put to the appellant under Section 313 Cr.P.C.

20. On the other hand, learned A.G.A. has relied on the fact that it is not disputed to the appellant that the occurrence was caused inside his house. It is also not disputed that the appellant was cohabiting with the deceased, it has been submitted that the principle of evidence contained in Section 106 Evidence Act, squarely applies. Since, the appellant failed to explain the special fact that were in his knowledge i.e. how the occurrence was caused, the learned court below has rightly convicted the present appellant. 8 of 20

21. Having heard learned counsel for the parties and having perused the record, in the first place, it is an admitted position on facts that the occurrence took place at the dwelling house of the appellant. However, it is also true that the occurrence took place at 1.30 p.m. i.e. in the afternoon. In that circumstance, the exact place of the occurrence where kerosene oil may have been poured on the deceased and where she may have been set ablaze, were not even attempted to be proved, by the prosecution. No recovery of any kind was made to establish that occurrence took place inside a closed room or outside. Plainly, those facts are not known to us. There is absolutely no recovery of any kerosene can or bottle or vessel, to establish that appellant had poured kerosene oil over the deceased. No recovery of earth, burnt/half burnt material etc. was made, to fix the place of the occurrence.

22. Second, it is also admitted to the prosecution that the deceased was married to Rajesh Maurya in 2002, but had been living separately from him and with the appellant, consensually since 03.06.2014. That consent is proven on the admission made by PW1 and PW2, who are the parents of the deceased that the appellant and deceased had started living together pursuant to the notarized affidavit executed by them, dated 03.06.2014. In that context, it is not the case of the prosecution that there was any other or prior dispute between the appellant and the deceased, since they started living together. At the same time, PW1 specifically proved, he was opposed to the live-in relationship formed by the deceased with the present appellant. For that reason, he had not visited the deceased, since she started living with the appellant which would be not later than 03.06.2014. 9 of 20

23. Therefore, it is wholly doubtful, if the said witness PW1 or PW2 would have suddenly appeared at the house of the appellant, the place of occurrence described by the prosecution. In that regard, they never disclosed, how and why they reached the place of occurrence. In any case, on their own admission neither PW1 nor PW2 saw the appellant pour kerosene oil over the deceased or cause fire to her. The original hearsay assertion made by PW1 that the deceased had disclosed to him, such fact was also completely disowned by him during his cross-examination dated

08.06.2016 wherein he specifically stated that the deceased told him nothing.

24. Therefore, there is no weight in the deposition of PW1 and PW2. As per PW2 though she claimed to have informed the police about the occurrence, no proof of that phone call arose at the trial. This leads us to the conclusion that the deposition of PW1 and PW2 that the occurrence had been caused by the present appellant, is neither credible nor reliable. They had not seen the occurrence being caused. Their presence may have arisen much later as is evident from the ‘Panchayatnama’ wherefrom the presence of PW1 is established, at that time i.e. at the hospital, but not at the house of the appellant- place of occurrence described by the prosecution.

25. As to PW3, he is a child witness. While he may be a competent witness in law, at the same time, in the context of his statement made to the Court being the single testimony, the deposition made by the said child witness needs to be examined, carefully. In that, we find, he is not the natural born son of the appellant rather, he is the natural born son of the deceased. During his examination-in-chief, he did not 10 of 20 claim to have seen the occurrence. He only evidenced quarrel between the present appellant and the deceased. That quarrel was not described to be one involving any physical assault or of which the child took special notice. No allegation of any violence (prior to the present occurrence) caused by the appellant to the deceased was narrated by PW3. Neither prior to the date of occurrence i.e. 25.05.2015 nor on 25.05.2015 the said child witness made any description of any assault made by the appellant on the deceased.

26. Then, he himself stated that upon returning from the village shop, he found his mother was ablaze. He also made a statement that the occurrence had been caused by the appellant and Mohan Maurya, but he did not disclose the manner either of them poured kerosene oil on the deceased or that the appellant set her ablaze or that the appellant prevented the said witnesses from dousing the fire. Though, during his cross-examination, he made a statement that appellant had prevented the said witness from dousing the fire at the same time, in almost the same breath, he further stated that a lot of other persons/villagers were present at that time, with him. Once that statement was made by the child witness, it merits consideration that the prosecution made no effort to examine any independent witness to prove any part of the occurrence i.e. of how excessive burn injuries were caused to the deceased or that the appellant had prevented any person from helping the deceased douse the fire.

27. To the contrary, it is duly proven by the prosecution witness himself that the appellant rushed the deceased to the hospital. That fact being admitted to the prosecution witnesses and in absence of any other fact proven, it is 11 of 20 wholly incredible to accept the prosecution case that the appellant had prevented P.W.3 from dousing the fire.

28. In the face of such doubt, we have looked for corroboration. In that, we find, there is none. Though, the site plan is not a substantive evidence at the same time, it may be noted that on the site plan, the occurrence is described to have been caused inside a room marked “X”. No fact witness was examined, to prove that the occurrence took place inside that room. All that PW1, PW2 and PW3 tried to establish was that the occurrence took place inside what was generally described at the house of the appellant. No other specification of exact place of occurrence was even attempted to be proven. Further, serious doubts arise due to lack of corroboration inasmuch as no recovery was made or proved. Neither, there is any piece of burnt clothes or kerosene oil recovered or vessel used to pour the kerosene oil over the deceased or of burnt/smoked wall, earth or any material was recovered. The Investigating Officer appears to have acted in a perfunctory manner, in that regard.

29. Coming to requirement of Section 313 Cr.P.C., it is noted, no confrontation was offered to the appellant with respect to any fact allegedly proven by P.W.-3 i.e. with respect to his presence and with respect to his assertion that the appellant had prevented the said witness from helping the deceased to douse the fire. Also, there is no dying declaration of the deceased.

30. It is in this state of evidence, the statement of the accused arose under Section 313 Cr.P.C. Section 313 Cr.P.C. reads as below: “313. Power to examine the accused. 12 of 20 (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. [(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.]”

31. Section 313 Cr.P.C. contains a provision of law that in effect is pari materia to the pre-existing Section 342 of the Code of Criminal Procedure, 1898. In that context, in Tara Singh vs State, (1951) SCC OnLine SC 49, it was observed as under: “38. The whole object of Section 342 is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned.”

32. In Jai Dev v. State of Punjab, AIR 1963 SC 612, a three-judge bench of the Supreme Court elaborated on the test to be applied to determine if that provision of law had been fairly complied with. It was thus observed: “21. … The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire 13 of 20 whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.”

33. Then, in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, another three-judge bench of the Supreme Court observed as below: “16. … It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.”

34. Then, in Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was observed as below: “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 and 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.”

35. In Asraf Ali V. State of Assam (2008) 16 SCC 328, applying the same principle, to Section 313 Cr.P.C., the Supreme Court observed as below: 14 of 20 “Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.”

36. Next, in Alister Anthony Pareira vs State of Maharashtra, (2012) 2 SCC 648, then pre-existing law was noticed. Thereafter, it was observed as below: “61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.”

37. That principle of law was again applied and followed by the Supreme Court in Maheshwar Tigga v. State of Jharkhand, AIR (2020) SC 4535.

38. In Raj Kumar v. State (NCT of Delhi), (2023) 17 SCC 95 : 2023 SCC OnLine SC 609, the Supreme Court summarized the law under Section 313 Cr.P.C., in the following words: “22.The law consistently laid down by this Court can be summarised as under: 22.1.It is the duty of the trial court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction. 22.2.The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence. 22.3.The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused. 22.4 The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused. 22.5.If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable 15 of 20 defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident. 22.6.In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him. 22.7.In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under Section 313CrPC. 22.8.While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.”

39. More recently, in Naresh Kumar v. State of Delhi, (2024) SCC Online SC 1641, the issue of material prejudice caused for reason of non-examination/inadequate disclosure made under Section 313 Cr.P.C., was again considered. Though the principle in law laid down in Raj Kumar (supra) was taken note, it was specifically observed as below: “21. We have already held that whether non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused. True that the onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination under Section 313, Cr. P.C., is on the convict concerned. We say so, because if an accused is ultimately acquitted, he could not have a case that he was prejudiced or miscarriage of justice had occurred owing to such non-questioning or inadequate questioning.

22. In the light of the above view of the matter, we are inclined to consider the further question whether the non-questioning on the aforesaid twin incriminating circumstances to the appellant during his examination under Section 313, Cr. P.C., had caused material prejudice to him. The decision of this Court in State of Punjab v. Swaran Singh8, constrain us to consider one another factor while considering the question of prejudice. In Swaran Singh's case (supra), this Court held that where the evidence of the witnesses is recorded in the presence of the accused who had the opportunity to cross examine them but did not cross examine them in respect of facts deposed, then, omission to put question to the accused regarding the evidence of such witnesses would not cause prejudice to such an accused and, therefore, could not be held as grounds vitiating the trial qua the convict concerned...”

40. Thus, it may be safely inferred, in the first place, it was a requirement of law to confront the accused with the adverse evidence received against him or the inculpatory circumstances proven by the prosecution, to give the accused an opportunity to offer his response thereto. That remains a necessary concomitant of a fair trial. It inhers a 16 of 20 reflection/extension of the principle audi alteram partem, arising from due enforcement of rule of natural justice.

41. First, at the stage of framing of charge, the accused is confronted with the nature of occurrence attributed to him, to allow him fair opportunity to take a stand - whether guilty or not-guilty. Once such accused pleads not-guilty, the trial commences. The trial court receives evidence, to prove the charge framed against the accused, in his presence. It also allows the accused an opportunity to cross-examine the witnesses, appearing to prove various elements of the charge or the occurrence. Upon prosecution evidence being complete, the statement under Section 313 Cr.P.C. is required to be recorded by way of the next stage of compliance of the rule of natural justice, to confront the accused with the exact nature of adverse circumstances, found proven against him. Unless inculpatory facts are first confronted to the accused, the risk of prejudice being caused to the accused, at the stage of leading defence evidence, may arise. What prejudice may or may not arise, would depend on individual facts of each case.

42. In the present facts, first it was not proven beyond reasonable doubt that the appellant had prevented P.W.-3 from dousing the fire. The prosecution witness did not establish the place where the occurrence took place. Though the occurrence is described to have taken place inside the house of the deceased where she was living with the appellant, at the same time it is clearly admitted to the prosecution that the occurrence wherein the deceased suffered burn injuries mainly on her frontal body area occurred at about 1.30 p.m. The place of occurrence was not established to be inside any room of the house. Also, the 17 of 20 place of occurrence was not established through cogent evidence to be inside the house inasmuch as besides oral evidence of P.W.-1, P.W.-2 and P.W.-3 having seen the deceased ablaze inside her house, no recovery whatsoever was made of any burnt/half burnt clothes, smoked or burnt earth or building material of the house. Further, no recovery of any vessel used to pour kerosene oil over the deceased to cause the occurrence and no matchstick etc. was recovered.

43. Thus, the solitary adverse circumstance found proven against the appellant was the deposition of P.W.-3. In face of the incomplete narration made by that witness, inasmuch he had not seen the occurrence and further in face of the doubtful nature of his deposition that the appellant had stopped him from helping the deceased douse the fire inasmuch it is admitted to the said witness himself that a crowd had gathered and other persons were present when he reached back from the village shop, it was necessary for the learned trial Court to confront the appellant with that portion of evidence of P.W.-3 that was adverse to him. As noted above, no such confrontation was offered. A lump sum adverse circumstance was cited in question No. 7 described as deposition of P.W.-3 and P.W.-7. In the first place, that is no confrontation in the eyes of law. Second, in view of the doubtful nature of deposition of P.W.-3 with respect to the adverse circumstance being relied against the appellant of preventing the said witness to douse the fire, unless specific confrontation had been offered, no adverse inference may have been drawn on the strength of such evidence. To that extent, the appellant has been prejudiced at the trial. Then, in view of our observation that the deposition of P.W.- 3 is not reliable as to the occurrence inasmuch as he neither 18 of 20 saw the occurrence being caused as he was not present at that time and further inasmuch as on the strength of substantive evidence, his statement that he was prevented by the appellant from dousing the fire may not be trusted for reason of no independent witness making such statement or corroborative statement though P.W.-3 himself described that a crowd had gathered and many villagers were present and further since it would be incredible to accept that though such other persons were present presumably adult members of the society, the deceased could not be helped only because the appellant prevented P.W.-3 from helping the deceased. The occasion does not exist to trust such statement and to confront the appellant with the adverse circumstance of him preventing P.W.-3 from dousing the fire. Since we do not find that statement of P.W.-3, worthy of trust, no confrontation is required to be made on the strength of such evidence, at this stage.

44. In the entirety of the facts and circumstances as noted above, we find more than reasonable doubts exist, as to the correctness and completeness of the prosecution narration. The chain of circumstance, that was necessary to be proven beginning from the presence of the present appellant in the house, to the nature of injury as also the manner in which it may have been caused, remained to be proved.

45. Consequently, this appeal succeeds and is allowed. The judgment and order of conviction dated 05.01.2019 passed by Sri Sudhakar Rai, Additional Sessions Judge, Fast Track Court-2, Chandauli in Sessions Trial No.225 of 2015 (State of U.P. Vs. Ram Lal Harijan and another), under Section 302 I.P.C., is set aside. The appellant is acquitted of the charge of offence framed against him. The accused-appellant is in 19 of 20 jail. Let him be released, forthwith, unless he is wanted in any other case, subject to compliance of Section 437-A Cr.P.C.

46. The trial Court record along with the copy of this judgment and order be transmitted to the court concerned, forthwith.

47. Let a copy of this judgment be sent to the Jail Authorities concerned and the court concerned for compliance.

48. In view of the aforesaid, the pending application(s), if any, of this appeal also stands disposed of. Order Date :- 7.4.2025 Atul/A.K.T. (Chandra Dhari Singh, J.) (S.D. Singh, J.) 20 of 20

prosecution relied on oral evidence of the first informant, Mahendra Kushwaha (P.W.1). He proved the relationship between the appellant and the deceased. He also proved the occurrence was caused at the house of the appellant, where the deceased was cohabiting with him. Further, he proved he reached the place of occurrence after the deceased had been set ablaze. He claimed to have called the police on the Helpline number 100. During his examination-in-chief, he further stated that he had heard the deceased at that time wherein she had disclosed that the present appellant had caused the occurrence. Initially, he attempted to prove that the appellant had fled from the spot. However, during his examination-in-chief itself, he altered that stand and alleged that the appellant had taken the deceased to the hospital and got her admitted. He also admitted that he lodged the Written Report on 27.05.2015 i.e. one day after death had been caused. Further, he proved that the ‘Panchayatnama’ was prepared in his presence. During his cross-examination, the said witness admitted the fact that the deceased was married to Rajesh, but she was living with the present appellant of her own free will. He further admitted that the said relationship formed by the deceased with the present appellant, did not have the approval of the paternal family of the deceased. He categorically admitted that he had not seen that the appellant poured kerosene oil upon the deceased, but that he had heard 3 of 20 the deceased say so. On further cross-examination, he stated since the deceased had started living with the present appellant, he had not met the deceased. In that regard, he had earlier stated that the deceased had married the present appellant on 03.06.2014. He further admitted, when he reached the place of occurrence, the deceased was alive, but that he could not speak to her.

9. Thereafter, Chandrawati, the mother of the deceased was examined as P.W.2. She made a similar deposition as her husband, Mahendra Kushwaha (P.W.1). She had also not seen the occurrence being caused by the appellant, but had only seen the deceased after she was ablaze. As to the relationship formed by the deceased with the appellant, she categorically admitted (during her cross examination) that the deceased had married the present appellant and established matrimonial relationship with the appellant through a notarized affidavit dated 03.06.2014.

10. Thereafter, the son of the deceased was examined as P.W.3. During his examination-in-chief, he stated that the appellant and the co-accused had sent him away to a nearby village shop to buy Soda. When he returned, he saw his mother/deceased ablaze. Thus, the said witness also did not claim that he had seen the appellant caused the occurrence. During his cross-examination, he was questioned as to the reason for his going to the village shop as also the time at which he left for that shop and further the duration for which he was away from his home. He described, he had been sent by the appellant and the co-accused, both having given him Rs.5 each to buy Soda. He disclosed that he had gone to the village shop at about 9 or 10 A.M. He reiterated, when he 4 of 20 returned home he saw his mother was ablaze. Though, he asserted that the appellant prevented him from dousing the fire set upon the deceased, at the same time he also maintained that a lot of people were present at that time. However, he could not confirm, whether his maternal grand parents i.e. P.W.1 and P.W.2 were present at that time. He also could not confirm when those witnesses arrived at the place of occurrence. Yet, he confirmed that the appellant had taken the deceased to the hospital. Thereafter, Rajesh Maurya, who was the legally wedded husband of the deceased, was examined as P.W.4. He is not a fact witness of the occurrence.

11. Thereafter, Dr. S.B.S. Kushwaha, who conducted the autopsy was examined as P.W.5. He proved the cause of death and the ante mortem injury. Thereafter, the then S.H.O., In-charge of Police Station Sayedraja, was examined as P.W.-6. He proved initial investigation conducted by him.

12. Further, Sri Nagesh Mishra, the then Inspector In-Charge was examined as P.W.7. Thereafter, Sri Vinod Kumar, Investigating Officer, who submitted the charge sheet was examined as P.W.8. Thereafter, statement of the present appellant, Ram Lal was recorded under 313 Cr.P.C.

13. In that we find besides general reference made to adverse facts, no specific adverse circumstance was put to the accused/appellant. Relevant to our discussion, question no.7 and the answer thereto is quoted below:- “प्रश्न-7 यह कि(cid:10) साक्षी पी.डब्लू.3 सोनू, पी.डब्लू.7 रिरटा. किनरीक्ष(cid:10) नागेश किमश्र (cid:10)े बयान (cid:10)े संबन्ध में आप(cid:10)ो क्या (cid:10)हना है? उत्तर- जी गलत बयान कि(cid:11)ये है” 5 of 20

14. In face of such evidence, the learned court below has convicted the present appellant for the offence under Section 302 I.P.C. It has sentenced him for life.

15. Submission of learned counsel for the appellant is that this is not a case of direct evidence. Rather, the prosecution has relied totally on circumstantial evidence. In that, the chain of evidence is not complete. More than reasonable doubts exist as to who caused the occurrence and the manner in which it may have been caused. Referring to the facts admitted to the prosecution, it has been asserted that deceased was married to Rajesh Maurya in the year 2002. There was matrimonial discord in that marriage. Thereafter, of her own the deceased started living with the present appellant since 03.06.2014 i.e. at least from one year before the occurrence. No prior incident was alleged or proven as may have ever indicated to the Court that the deceased and the appellant were suffering any bad relations or disputes.

16. Coming to the actual occurrence, it has been vehemently urged, none has seen the occurrence. P.W.1 and P.W.2 were clearly not present either at the time of occurrence or soon thereafter. P.W.3 has completely contradicted the statement made by P.W.1 and P.W.2 in that regard. They reached the place of occurrence much later. As to the evidence that appellant caused the occurrence, there is no dying declaration. The statements made by P.W.1 and P.W.2 that appellant had caused the occurrence, is plain hearsay. In any case, P.W.1 brokedown at the end of his cross examination and specifically admitted that the deceased told him nothing.

17. As to the calls made to the police on the helpline number 100, there is no proof. On the contrary, all witnesses of fact 6 of 20 relied by the prosecution namely, PW1, PW2 and PW3, specifically admitted that deceased was admitted to the hospital by the present appellant. Therefore, it is also proved by the prosecution that the appellant had not fled from the spot but arising from the occurrence suffered by the deceased, he had rushed her to the hospital, immediately. The fact that the deceased did not suffer any burn injury on the back of her head, which fact is proven by Dr. S.B.S. Kushwaha, clearly indicates that the occurrence was accidental wherein deceased may have suffered burn injuries, while preparing food. Thus, the injuries were suffered on her face and the frontal areas and not on the back of her head. In any case, the fact that no burn injury was suffered by the deceased on the back of her head, disproves the prosecution allegation that the appellant had first poured kerosene oil over the deceased and thereafter, set ablaze. That nature of occurrence would have necessarily evidenced burn injuries to the back of her head, as well.

18. More substantially, it has been submitted that PW3 is a child witness. He was also not present at the time and place of occurrence (as clearly admitted by him). However, his statement that the appellant had prevented him from helping the deceased or had prevented him from dousing the fire caused to the deceased, is plainly wrong. In the first place, the said witness claimed that he visited the village shop in the morning hours and not afternoon inasmuch as he described to have left home at around 9-10 a.m. and to have returned within 10 minutes, whereas the occurrence undeniably occurred in the afternoon at around 1.30 p.m. During his examination-in-chief, he did not prove that the appellant had prevented him from dousing the fire. For 7 of 20 whatever worth that statement of that witness may be, it loses credibility for the reason that he also admitted that a lot of persons were present, when he returned from the village shop and saw his mother ablaze. If the statement of the said witnesses were true, the prosecution has failed to produce any independent witness to establish such occurrence of either fire being caused by the appellant or of the appellant preventing others from dousing the fire. That fact alleged by the prosecution is also contradicted on the self admission made by the prosecution that the deceased was rushed to the hospital by the appellant. Last, it has been submitted that no adverse circumstance arising from the deposition of PW3 was put to the appellant under Section 313 Cr.P.C. as may have allowed the learned Court below to reach the conclusion that appellant has committed the offence.

19. Further, it has been submitted that conviction may not arise on the strength of Section 106 Evidence Act, inasmuch as the prosecution miserably failed to place the appellant and the deceased inside the house at the time of occurrence, as may allow for that presumption, to be enforced, fully. That circumstance was not squarely put to the appellant under Section 313 Cr.P.C.

20. On the other hand, learned A.G.A. has relied on the fact that it is not disputed to the appellant that the occurrence was caused inside his house. It is also not disputed that the appellant was cohabiting with the deceased, it has been submitted that the principle of evidence contained in Section 106 Evidence Act, squarely applies. Since, the appellant failed to explain the special fact that were in his knowledge i.e. how the occurrence was caused, the learned court below has rightly convicted the present appellant. 8 of 20

21. Having heard learned counsel for the parties and having perused the record, in the first place, it is an admitted position on facts that the occurrence took place at the dwelling house of the appellant. However, it is also true that the occurrence took place at 1.30 p.m. i.e. in the afternoon. In that circumstance, the exact place of the occurrence where kerosene oil may have been poured on the deceased and where she may have been set ablaze, were not even attempted to be proved, by the prosecution. No recovery of any kind was made to establish that occurrence took place inside a closed room or outside. Plainly, those facts are not known to us. There is absolutely no recovery of any kerosene can or bottle or vessel, to establish that appellant had poured kerosene oil over the deceased. No recovery of earth, burnt/half burnt material etc. was made, to fix the place of the occurrence.

22. Second, it is also admitted to the prosecution that the deceased was married to Rajesh Maurya in 2002, but had been living separately from him and with the appellant, consensually since 03.06.2014. That consent is proven on the admission made by PW1 and PW2, who are the parents of the deceased that the appellant and deceased had started living together pursuant to the notarized affidavit executed by them, dated 03.06.2014. In that context, it is not the case of the prosecution that there was any other or prior dispute between the appellant and the deceased, since they started living together. At the same time, PW1 specifically proved, he was opposed to the live-in relationship formed by the deceased with the present appellant. For that reason, he had not visited the deceased, since she started living with the appellant which would be not later than 03.06.2014. 9 of 20

23. Therefore, it is wholly doubtful, if the said witness PW1 or PW2 would have suddenly appeared at the house of the appellant, the place of occurrence described by the prosecution. In that regard, they never disclosed, how and why they reached the place of occurrence. In any case, on their own admission neither PW1 nor PW2 saw the appellant pour kerosene oil over the deceased or cause fire to her. The original hearsay assertion made by PW1 that the deceased had disclosed to him, such fact was also completely disowned by him during his cross-examination dated

08.06.2016 wherein he specifically stated that the deceased told him nothing.

24. Therefore, there is no weight in the deposition of PW1 and PW2. As per PW2 though she claimed to have informed the police about the occurrence, no proof of that phone call arose at the trial. This leads us to the conclusion that the deposition of PW1 and PW2 that the occurrence had been caused by the present appellant, is neither credible nor reliable. They had not seen the occurrence being caused. Their presence may have arisen much later as is evident from the ‘Panchayatnama’ wherefrom the presence of PW1 is established, at that time i.e. at the hospital, but not at the house of the appellant- place of occurrence described by the prosecution.

25. As to PW3, he is a child witness. While he may be a competent witness in law, at the same time, in the context of his statement made to the Court being the single testimony, the deposition made by the said child witness needs to be examined, carefully. In that, we find, he is not the natural born son of the appellant rather, he is the natural born son of the deceased. During his examination-in-chief, he did not 10 of 20 claim to have seen the occurrence. He only evidenced quarrel between the present appellant and the deceased. That quarrel was not described to be one involving any physical assault or of which the child took special notice. No allegation of any violence (prior to the present occurrence) caused by the appellant to the deceased was narrated by PW3. Neither prior to the date of occurrence i.e. 25.05.2015 nor on 25.05.2015 the said child witness made any description of any assault made by the appellant on the deceased.

26. Then, he himself stated that upon returning from the village shop, he found his mother was ablaze. He also made a statement that the occurrence had been caused by the appellant and Mohan Maurya, but he did not disclose the manner either of them poured kerosene oil on the deceased or that the appellant set her ablaze or that the appellant prevented the said witnesses from dousing the fire. Though, during his cross-examination, he made a statement that appellant had prevented the said witness from dousing the fire at the same time, in almost the same breath, he further stated that a lot of other persons/villagers were present at that time, with him. Once that statement was made by the child witness, it merits consideration that the prosecution made no effort to examine any independent witness to prove any part of the occurrence i.e. of how excessive burn injuries were caused to the deceased or that the appellant had prevented any person from helping the deceased douse the fire.

27. To the contrary, it is duly proven by the prosecution witness himself that the appellant rushed the deceased to the hospital. That fact being admitted to the prosecution witnesses and in absence of any other fact proven, it is 11 of 20 wholly incredible to accept the prosecution case that the appellant had prevented P.W.3 from dousing the fire.

28. In the face of such doubt, we have looked for corroboration. In that, we find, there is none. Though, the site plan is not a substantive evidence at the same time, it may be noted that on the site plan, the occurrence is described to have been caused inside a room marked “X”. No fact witness was examined, to prove that the occurrence took place inside that room. All that PW1, PW2 and PW3 tried to establish was that the occurrence took place inside what was generally described at the house of the appellant. No other specification of exact place of occurrence was even attempted to be proven. Further, serious doubts arise due to lack of corroboration inasmuch as no recovery was made or proved. Neither, there is any piece of burnt clothes or kerosene oil recovered or vessel used to pour the kerosene oil over the deceased or of burnt/smoked wall, earth or any material was recovered. The Investigating Officer appears to have acted in a perfunctory manner, in that regard.

29. Coming to requirement of Section 313 Cr.P.C., it is noted, no confrontation was offered to the appellant with respect to any fact allegedly proven by P.W.-3 i.e. with respect to his presence and with respect to his assertion that the appellant had prevented the said witness from helping the deceased to douse the fire. Also, there is no dying declaration of the deceased.

30. It is in this state of evidence, the statement of the accused arose under Section 313 Cr.P.C. Section 313 Cr.P.C. reads as below: “313. Power to examine the accused. 12 of 20 (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. [(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.]”

31. Section 313 Cr.P.C. contains a provision of law that in effect is pari materia to the pre-existing Section 342 of the Code of Criminal Procedure, 1898. In that context, in Tara Singh vs State, (1951) SCC OnLine SC 49, it was observed as under: “38. The whole object of Section 342 is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned.”

32. In Jai Dev v. State of Punjab, AIR 1963 SC 612, a three-judge bench of the Supreme Court elaborated on the test to be applied to determine if that provision of law had been fairly complied with. It was thus observed: “21. … The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire 13 of 20 whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.”

33. Then, in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, another three-judge bench of the Supreme Court observed as below: “16. … It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.”

34. Then, in Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was observed as below: “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 and 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.”

35. In Asraf Ali V. State of Assam (2008) 16 SCC 328, applying the same principle, to Section 313 Cr.P.C., the Supreme Court observed as below: 14 of 20 “Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.”

36. Next, in Alister Anthony Pareira vs State of Maharashtra, (2012) 2 SCC 648, then pre-existing law was noticed. Thereafter, it was observed as below: “61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.”

37. That principle of law was again applied and followed by the Supreme Court in Maheshwar Tigga v. State of Jharkhand, AIR (2020) SC 4535.

38. In Raj Kumar v. State (NCT of Delhi), (2023) 17 SCC 95 : 2023 SCC OnLine SC 609, the Supreme Court summarized the law under Section 313 Cr.P.C., in the following words: “22.The law consistently laid down by this Court can be summarised as under: 22.1.It is the duty of the trial court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction. 22.2.The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence. 22.3.The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused. 22.4 The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused. 22.5.If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable 15 of 20 defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident. 22.6.In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him. 22.7.In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under Section 313CrPC. 22.8.While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.”

39. More recently, in Naresh Kumar v. State of Delhi, (2024) SCC Online SC 1641, the issue of material prejudice caused for reason of non-examination/inadequate disclosure made under Section 313 Cr.P.C., was again considered. Though the principle in law laid down in Raj Kumar (supra) was taken note, it was specifically observed as below: “21. We have already held that whether non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused. True that the onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination under Section 313, Cr. P.C., is on the convict concerned. We say so, because if an accused is ultimately acquitted, he could not have a case that he was prejudiced or miscarriage of justice had occurred owing to such non-questioning or inadequate questioning.

22. In the light of the above view of the matter, we are inclined to consider the further question whether the non-questioning on the aforesaid twin incriminating circumstances to the appellant during his examination under Section 313, Cr. P.C., had caused material prejudice to him. The decision of this Court in State of Punjab v. Swaran Singh8, constrain us to consider one another factor while considering the question of prejudice. In Swaran Singh's case (supra), this Court held that where the evidence of the witnesses is recorded in the presence of the accused who had the opportunity to cross examine them but did not cross examine them in respect of facts deposed, then, omission to put question to the accused regarding the evidence of such witnesses would not cause prejudice to such an accused and, therefore, could not be held as grounds vitiating the trial qua the convict concerned...”

40. Thus, it may be safely inferred, in the first place, it was a requirement of law to confront the accused with the adverse evidence received against him or the inculpatory circumstances proven by the prosecution, to give the accused an opportunity to offer his response thereto. That remains a necessary concomitant of a fair trial. It inhers a 16 of 20 reflection/extension of the principle audi alteram partem, arising from due enforcement of rule of natural justice.

41. First, at the stage of framing of charge, the accused is confronted with the nature of occurrence attributed to him, to allow him fair opportunity to take a stand - whether guilty or not-guilty. Once such accused pleads not-guilty, the trial commences. The trial court receives evidence, to prove the charge framed against the accused, in his presence. It also allows the accused an opportunity to cross-examine the witnesses, appearing to prove various elements of the charge or the occurrence. Upon prosecution evidence being complete, the statement under Section 313 Cr.P.C. is required to be recorded by way of the next stage of compliance of the rule of natural justice, to confront the accused with the exact nature of adverse circumstances, found proven against him. Unless inculpatory facts are first confronted to the accused, the risk of prejudice being caused to the accused, at the stage of leading defence evidence, may arise. What prejudice may or may not arise, would depend on individual facts of each case.

42. In the present facts, first it was not proven beyond reasonable doubt that the appellant had prevented P.W.-3 from dousing the fire. The prosecution witness did not establish the place where the occurrence took place. Though the occurrence is described to have taken place inside the house of the deceased where she was living with the appellant, at the same time it is clearly admitted to the prosecution that the occurrence wherein the deceased suffered burn injuries mainly on her frontal body area occurred at about 1.30 p.m. The place of occurrence was not established to be inside any room of the house. Also, the 17 of 20 place of occurrence was not established through cogent evidence to be inside the house inasmuch as besides oral evidence of P.W.-1, P.W.-2 and P.W.-3 having seen the deceased ablaze inside her house, no recovery whatsoever was made of any burnt/half burnt clothes, smoked or burnt earth or building material of the house. Further, no recovery of any vessel used to pour kerosene oil over the deceased to cause the occurrence and no matchstick etc. was recovered.

43. Thus, the solitary adverse circumstance found proven against the appellant was the deposition of P.W.-3. In face of the incomplete narration made by that witness, inasmuch he had not seen the occurrence and further in face of the doubtful nature of his deposition that the appellant had stopped him from helping the deceased douse the fire inasmuch it is admitted to the said witness himself that a crowd had gathered and other persons were present when he reached back from the village shop, it was necessary for the learned trial Court to confront the appellant with that portion of evidence of P.W.-3 that was adverse to him. As noted above, no such confrontation was offered. A lump sum adverse circumstance was cited in question No. 7 described as deposition of P.W.-3 and P.W.-7. In the first place, that is no confrontation in the eyes of law. Second, in view of the doubtful nature of deposition of P.W.-3 with respect to the adverse circumstance being relied against the appellant of preventing the said witness to douse the fire, unless specific confrontation had been offered, no adverse inference may have been drawn on the strength of such evidence. To that extent, the appellant has been prejudiced at the trial. Then, in view of our observation that the deposition of P.W.- 3 is not reliable as to the occurrence inasmuch as he neither 18 of 20 saw the occurrence being caused as he was not present at that time and further inasmuch as on the strength of substantive evidence, his statement that he was prevented by the appellant from dousing the fire may not be trusted for reason of no independent witness making such statement or corroborative statement though P.W.-3 himself described that a crowd had gathered and many villagers were present and further since it would be incredible to accept that though such other persons were present presumably adult members of the society, the deceased could not be helped only because the appellant prevented P.W.-3 from helping the deceased. The occasion does not exist to trust such statement and to confront the appellant with the adverse circumstance of him preventing P.W.-3 from dousing the fire. Since we do not find that statement of P.W.-3, worthy of trust, no confrontation is required to be made on the strength of such evidence, at this stage.

44. In the entirety of the facts and circumstances as noted above, we find more than reasonable doubts exist, as to the correctness and completeness of the prosecution narration. The chain of circumstance, that was necessary to be proven beginning from the presence of the present appellant in the house, to the nature of injury as also the manner in which it may have been caused, remained to be proved.

45. Consequently, this appeal succeeds and is allowed. The judgment and order of conviction dated 05.01.2019 passed by Sri Sudhakar Rai, Additional Sessions Judge, Fast Track Court-2, Chandauli in Sessions Trial No.225 of 2015 (State of U.P. Vs. Ram Lal Harijan and another), under Section 302 I.P.C., is set aside. The appellant is acquitted of the charge of offence framed against him. The accused-appellant is in 19 of 20 jail. Let him be released, forthwith, unless he is wanted in any other case, subject to compliance of Section 437-A Cr.P.C.

46. The trial Court record along with the copy of this judgment and order be transmitted to the court concerned, forthwith.

47. Let a copy of this judgment be sent to the Jail Authorities concerned and the court concerned for compliance.

48. In view of the aforesaid, the pending application(s), if any, of this appeal also stands disposed of. Order Date :- 7.4.2025 Atul/A.K.T. (Chandra Dhari Singh, J.) (S.D. Singh, J.) 20 of 20