JAI PRAKASH TIWARIversusSTATE OF MADHYA PRADESH

198                      [2022]REPORTS
               SUPREME COURT   10 S.C.R. 198                [2022] 10 S.C.R.


A                           JAI PRAKASH TIWARI
                                         v.
                        STATE OF MADHYA PRADESH
                        (Criminal Appeal No. 704 of 2018)
B                               AUGUST 04, 2022
             [N. V. RAMANA, CJI, KRISHNA MURARI AND
                         HIMA KOHLI, JJ.]
             Code of Criminal Procedure, 1973: s. 313 – Power to examine
      the accused – Object and scope of – Held: s. 313 confers a valuable
C
      right upon an accused to establish his innocence – Purpose of s.
      313 is to provide the accused a reasonable opportunity to explain
      the adverse circumstances which have emerged against him during
      the course of trial – Non-fulfilment of the true spirit of s. 313 may
      ultimately cause grave prejudice to the accused and the court may
D     not have the benefit of all the necessary facts and circumstances to
      arrive at a fair conclusion – Such an omission does not ipso facto
      vitiate the trial, unless the accused fails to prove that grave prejudice
      has been caused to him – On facts, prosecution case that accused
      fired a gunshot at the complainant, who escaped the injury and the
      accused fled the spot – Accused convicted and sentenced u/s.307
E
      IPC and ss. 25 and 27 of the Arms Act, 1959 by the courts below –
      Courts below failed to scrutinize the defence version put forward
      by the appellant-accused in his statement u/s. 313– Furthermore,
      the burden of proving the guilt of the accused beyond reasonable
      doubt is upon the prosecution – Where an accused sets up a defence
F     or offers an explanation, he is not required to prove his defence
      beyond a reasonable doubt but only by preponderance of
      probabilities – It is the solemn duty of the courts below to consider
      the defence of the accused, with caution and must be scrutinised by
      application of mind by the judge – However, the courts below dealt
      with the evidence of the accused in a casual manner – Furthermore,
G
      in absence of independent evidence corroborating the statements
      made by complainant, serious doubts regarding the recovery of the
      alleged motorcycle and the country made pistol, no connection
      proved between the alleged recovered items and the alleged incident,
      and the plausible version put forward by the accused-appellant in
H     his s. 313 statement not been satisfactorily responded to by the
                                         198
  JAI PRAKASH TIWARI v. STATE OF MADHYA PRADESH                       199


prosecution, the case against the accused cannot be sustained –       A
Prosecution case based on mere conjectures and surmises –
Evidence brought on record by the prosecution insufficient to prove
the case beyond reasonable doubt – Thus, the order passed by the
courts below set aside – Penal Code, 1860 – s. 307 – Arms Act,
1959 – ss. 25, 27.
                                                                      B
      Allowing the appeal, the Court
      HELD: 1.1 From the evidence on record, it is clear that,
apart from the complainant and his mother, the other independent
witnesses namely PW1, PW10 and PW11 have denied witnessing
the incident. Even, the Sub-Inspector PW9, in his cross               C
examination, stated that the said witnesses during their police
statements under Section 161 Cr.P.C, had indicated that they had
not seen the accused-appellant firing the shot. Under the above
circumstances, the only evidence available to prove the presence
of the accused at the scene, apart from the testimony of the
complainant himself, is that of PW3, his mother. Although, it was     D
submitted that the testimony of the said witness should not be
taken into consideration as she is an “interested” witness, it is
an established principle of law that a close relative cannot
automatically be characterized as an “interested” witness.
However, it is trite that even related witness statements need to     E
be scrutinized more carefully. [Para 9, 10][205-D-G]
      1.2 The complainant clearly stated that his mother came to
the spot after the incident. On the other hand, in the chief
examination, his mother stated that she followed the complainant
when he went outside and therefore, she witnessed the incident.       F
In her cross-examination, she stated that she came outside when
she heard the gunshot. However, she saw the incident from the
verandah. Contradictions aside, it must be noted that the incident
took place at around 10:30 pm in the night. It is no-where
mentioned that the accused and PW3 were familiar to the extent
that she could recognize him in a fleeting moment while he was        G
speeding away on his bike. She also failed to provide any
discernable features of the accused-appellant. In fact, she
specifically stated that she was not acquainted with the accused
persons. It seems highly improbable that the mother of the
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200            SUPREME COURT REPORTS                    [2022] 10 S.C.R.


A     complainant, PW3 instantly recognized the appellant-accused at
      night. No effort has been made to conduct an identification test,
      to associate the accused-appellant with the alleged incident. After
      closely scrutinizing the statement of PW3, mother of the
      complainant, does not inspire confidence. [Para 12, 13][207-B-
      F]
B
             1.3 The High Court and the trial Court have laid great
      emphasis on the recovery of a motorcycle and a country-made
      pistol from the possession of the accused-appellant. [Para 14][207-
      F]
C            1.4 The sub-Inspector stated in his evidence that the alleged
      motorcycle and the country made pistol were seized from the
      complainant’s house based on the disclosure statement of the
      accused-appellant. However, the witnesses to the seizure, PW5
      and PW8 have given varying statements regarding the same. In
      fact, PW5 clearly stated that there was no recovery of bike, and
D     he was, thus, declared hostile by the prosecution. Moreover,
      although PW8 stated that no other thing other than the pistol
      was seized, he contradicts himself by stating that indeed a black
      coloured splendor motorcycle was seized. The said contradiction
      in the statement of PW8 cannot be stated to be minor. The same,
E     thus, does not inspire confidence. [Para 16][208-F-H]
            1.5 There has been no recovery of any pellet, empty
      cartridge, or any remains of the gunpowder from the spot. In the
      absence of a ballistic report, there is no clear connection between
      the seized weapon and the alleged incident. Moreover, even the
F     complainant had given a vague description of the motorcycle.
      Neither the license number nor the colour or any other
      distinguishing features have been indicated by the complainant.
      Even here, there is no linking factor between the seized vehicle
      and the alleged incident. [Para 17][209-A-B]

G           1.6 The accused while being examined had stated himself
      that he had gone to his village on the date of the incident. To
      support his case, he produced two defence witnesses who have
      corroborated his presence in the village. Furthermore, the


H
  JAI PRAKASH TIWARI v. STATE OF MADHYA PRADESH                         201


accused claimed to be falsely implicated in the case owing to           A
political rivalry. The alternate version put forth by the appellant-
accused could not be ignored. Section 313 CrPC confers a
valuable right upon an accused to establish his innocence and
can well be considered beyond a statutory right, as a constitutional
right to a fair trial under Article 21 of the Constitution. [Para 19,
                                                                        B
22][209-E-F; 211-E-F]
      1.7 The courts below failed to scrutinize the defence version
put forward by the appellant-accused in his Section 313 statement.
The object of Section 313 is to establish a direct dialogue between
the court and the accused. [Para 25][212-G-H]
                                                                        C
       1.8 The purpose of Section 313 CrPC is to provide the
accused a reasonable opportunity to explain the adverse
circumstances which have emerged against him during the course
of trial. A reasonable opportunity entails putting all the adverse
evidences in the form of questions so as to give an opportunity
to the accused to articulate his defence and give his explanation.      D
[Para 26][213-A-B]
      1.9 If all the circumstances are bundled together and a single
opportunity is provided to the accused to explain himself, he may
not able to put forth a rational and intelligible explanation. Such,
exercises which defeats fair opportunity are nothing but empty          E
formality. Non-fulfilment of the true spirit of Section 313 may
ultimately cause grave prejudice to the accused and the Court
may not have the benefit of all the necessary facts and
circumstances to arrive at a fair conclusion. Such an omission
does not ipso facto vitiate the trial, unless the accused fails to      F
prove that grave prejudice has been caused to him. Although the
counsel on behalf the accused has not proved any serious
prejudice caused to him due to failure of the Court in framing
individual circumstances; however, considering the long pendency
of the matter and the right of the accused to have a fair and
expeditious trial, the matter is decided on its own merit. [Para        G
27, 28][213-B-E]
     1.10 It is an established principle of criminal law that the
burden of proving the guilt of the accused beyond reasonable

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202            SUPREME COURT REPORTS                    [2022] 10 S.C.R.


A     doubt is upon the prosecution. Where an accused sets up a
      defence or offers an explanation, it is well-settled that he is not
      required to prove his defence beyond a reasonable doubt but
      only by preponderance of probabilities. Moreover, it is the solemn
      duty of the courts below to consider the defence of the accused.
      The same must be considered with caution and must be
B
      scrutinised by application of mind by the judge. The Court may
      accept or reject the same, however it cannot be done cursorily.
      The reasoning and the application of mind must be reflected in
      writing. However, it is clear that the courts below have failed to
      undertake this solemn duty. Rather, the evidence of the accused
C     has been dealt by the Court in a casual manner. [Para 29, 30][213-
      E-F, G-H]
            1.11 When there is absence of independent evidence
      corroborating the statements made by complainant, serious
      doubts regarding the recovery of the alleged motorcycle and the
D     country made pistol, no connection proved between the alleged
      recovered items and the alleged incident, and the plausible
      version put forward by the accused-appellant in his Section 313
      statement has not been satisfactorily responded to by the
      prosecution, the case against the accused-appellant cannot be
      sustained. [Para 31][214-A-B]
E
            1.12 It is the duty of the Court to extract the truth from the
      mass of evidence. The case of the prosecution is based on mere
      conjectures and surmises. The High Court and the trial court
      failed to consider the above-mentioned circumstances while
      rendering the judgment convicting the accused. The evidence
F     brought on record by the prosecution is insufficient to prove the
      case against the appellant beyond reasonable doubt. [Para
      32][214-C-D]
            Bhaskarrao v. State of Maharashtra (2018) 6 SCC 591
            : [2018] 4 SCR 751; State of Rajasthan v. Madan
G           (2019) 13 SCC 653 : 2018 (14) SCALE 748; Reena
            Hazarika v. State of Assam, (2019) 13 SCC 289 : [2018]
            13 SCR 1108; Satbir Singh v. State of Haryana (2021)
            6 SCC 1 : [2021] 5 JT 532; Asraf Ali v. State of Assam
            (2008) 16 SCC 328 : [2008] 10 SCR 1115; M. Abbas
H           v. State of Kerala, (2001) 10 SCC 103 : 2001 (4) JT
   JAI PRAKASH TIWARI v. STATE OF MADHYA PRADESH                            203


      92; Parminder Kaur v. State of Punjab (2020) 8 SCC                    A
      811 : [2020] 6 SCR 508 – referred to.
                        Case Law Reference
[2018] 4 SCR 751                   referred to             Para 10
[2018] 13 SCR 1108                 referred to             Para 19          B
[2021] 5 JT 532                    referred to             Para 20
[2008] 10 SCR 1115                 referred to             Para 25
[2020] 6 SCR 508                   referred to             Para 29
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                  C
704 of 2018.
      From the Judgment and Order dated 26.05.2017 of the High Court
of Madhya Pradesh Principal Seat at Jabalpur in CRA No. 1870 of
2005.
      Kaustubh A., Ashwin Kumar Nair, Vikas Upadhyay, Advs. for             D
the Appellant.
     Pashupathi Nath Razdan, Mirza Kayesh Begg, Prakhar Srivastav,
Ms. Sneh Bairwa, Advs. for the Respondent.
      The Judgment of the Court was delivered by                            E
      N. V. RAMANA, CJI
      1. The present appeal arises from the judgment dated 26.05.2017
passed by the High Court of Madhya Pradesh at Jabalpur in Criminal
Appeal No. 1870/2005. The High Court dismissed the appellant’s appeal
against judgment dated 18.08.2005 passed by the First Additional Sessions   F
Judge, Sidhi in Sessions Trial No. 119/2003, confirming his conviction
under Section 307 of the Indian Penal Code, 1860 (‘IPC’) and Sections
25 and 27 of the Arms Act, 1959 (‘Arms Act’).
       2. The appellant was sentenced to undergo three years of rigorous
imprisonment with fine of Rs.500/- under Section 307 IPC. He was            G
further sentenced to undergo three years of rigorous imprisonment with
fine of Rs.1,000/- under Section 27 of the Arms Act and one year of
rigorous imprisonment with fine of Rs.500/- under Section 25 of the
Arms Act. Appellant has undergone approximately 1 year, 7 months of
his sentence and was released on bail by this Court during the pendency
of the present appeal.                                                      H
204            SUPREME COURT REPORTS                          [2022] 10 S.C.R.


A            3. The factual matrix as per the prosecution is that, on 14.02.2003
      at about 10:30 p.m., the appellant and co-accused went to the
      complainant’s house and called him outside. When the complainant came
      out, the appellant fired at him with a country-made pistol. The complainant
      (PW2) is stated to have run into the house and escaped injury while the
      appellant and co-accused fled from the spot on their motorcycle. The
B
      complainant’s mother (PW3) was allegedly present in the house at the
      time of the incident and the complainant’s neighbours (PW1, PW10,
      PW11) arrived upon hearing the sound of gunfire. The firearm used in
      the alleged incident is stated to have been recovered from the appellant,
      along with an empty cartridge.
C            4. The prosecution charged the appellant and co-accused under
      Section 307/34 IPC and Sections 25(1B) (a) and Section 27(1) of the
      Arms Act. After perusal of evidence on record and examination of
      witnesses, the trial Court convicted and sentenced the appellant as
      specified above while acquitting the co-accused, as the prosecution had
D     failed to prove the charges against him. By way of impugned order
      dated 26.05.2017, the Madhya Pradesh High Court confirmed the
      appellant’s conviction and sentence. Aggrieved, the appellant approached
      this Court in appeal by way of special leave.
             5. The learned counsel for the appellant has contended that the
E     entire case of the prosecution is based on the testimony of the complainant
      (PW2) and the hearsay evidence of his mother (PW3), who is an
      interested witness, and there is no corroborative evidence or independent
      witness to support their testimonies. He has submitted that the prosecution
      witnesses to both the incident as well as the alleged recovery of the
      firearm have turned hostile. He has also relied on the testimony of the
F     IO (PW9) to state that no empty cartridges or pellets were recovered
      from the place of incident, which casts a doubt upon the prosecution’s
      case. Learned counsel for the appellant has submitted that the complainant
      has a close nexus with the police department as his father is a retired
      Inspector and his brother and sister are also police officers. He also
G     submits that besides the complainant, no witness has been produced by
      the prosecution who had seen the appellant at the site of the incident.
            6. Learned counsel for the respondent-State, on the other hand,
      has supported the concurrent judgments of conviction given by the courts
      below. He has stated that there is no error in relying on the statements
H
   JAI PRAKASH TIWARI v. STATE OF MADHYA PRADESH                              205
                 [N. V. RAMANA, CJI]

of the complainant (PW2) and his mother (PW3), whose testimony is             A
corroborated by ballistic evidence and seizure of the firearm and empty
cartridge from the appellant.
      7. Heard the learned counsel on merits and perused the material
on record.
       8. The prosecution strongly relies upon the statement of the           B
complainant and his mother. A perusal of the statement of the complainant
reveals that the accused-appellant had come in front of his house and
upon asking as to why they were here, the accused-appellant and his
companion kept quiet. The complainant asked them to leave. Thereafter,
the accused allegedly took out his country made pistol and fired a shot at    C
the complainant. The accused and his companion then sped away on
their bike. The complainant had already run inside the house and was,
therefore, unharmed. Subsequently, the mother of the complainant and
his three neighbours came to the scene of the occurrence.
      9. From the evidence on record, it is clear that, apart from the        D
complainant and his mother, the other independent witnesses namely
Rajat Shukla (PW1), Amit Bhasin (PW10) and Vikas Shukla (PW11)
have denied witnessing the incident. Even, the Sub-Inspector-Rahul
Sharma (PW9), in his cross examination, has stated that the
abovementioned witnesses during their police statements under Section
161 of the Cr.P.C, had indicated that they had not seen the accused-          E
appellant firing the shot.
       10. Under the above circumstances, the only evidence available
to prove the presence of the accused at the scene, apart from the
testimony of the complainant himself, is that of PW3, his mother. Although,
the counsel on behalf of the accused has argued that the testimony of         F
the aforesaid witness should not be taken into consideration as she is an
“interested” witness, it is an established principle of law that a close
relative cannot automatically be characterized as an “interested” witness.
However, it is trite that even related witness statements need to be
scrutinized more carefully. [See Bhaskarrao v. State of Maharashtra,          G
(2018) 6 SCC 591; State of Rajasthan v. Madan, (2019) 13 SCC
653]
     11. In the above context it is pertinent to note the statement of the
complainant (PW2) and the mother of the complainant (PW3):
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206      SUPREME COURT REPORTS                          [2022] 10 S.C.R.


A     Deposition of PW2
      In Examination-in-Chief, it is stated by PW2 that:
         “… On 14th February 2003 at 10.30 pm, I was at my home. At
         that very time, Jaiprakash and Pintu had come in front of my
         house on motorcycle and blew horn twice whereupon I had
B        come outside. When I had come outside my house I had seen
         Pintu Dubey on driving seat and Jaiprakash as pillion rider,
         Motorcycle was on. I asked Pintu that-what is the purpose of
         coming, whereupon he replied that-Jaiprakash has brought me
         with him, so ask him. So, I had asked Jaiprakash but he did not
C        reply. It felt like Jaiprakash was intoxicated So I asked them to
         leave and that I will talk to them later. Then Pintu raced the
         bike. As soon as Pintu raced the bike, at that very time
         Jaiprakash had taken out the Country made pistol and fired on
         me and they had gone away abusing. By that time, I had run
         and entered the house.
D
         Thereafter, two three people from the locality had come.
         My mother also had come. My neighbours named Amit
         Bhasin, Vikas Shukla, Rajat Shukla had come there. My mother
         asked me that-what had happened, so I told her about the
         incident.”
E
      Deposition of PW3
      In Examination-in-Chief, it is stated by PW3 that:
         “… the incident is of 14th February, 2003 at about 10.30 pm. I
         was at my home. The voice of boys had come from outside,
F        sound of motorcycle also had come. Sound was coming from
         outside that – Sandeep come outside, whereupon Sandeep had
         gone outside. I had followed him as well. Two boys were
         sitting on motorcycle, motorcycle was start. It was sounding
         as if someone was abusing in loud voice and they had fired
         during conversation itself. So Sandeep had come inside
G
         immediately when fired.”
      In cross-examination, it is stated by PW3 that:
         “I was in the verandah first. I had come outside when I
         heard sound of gunshot. The verandah is open from where
H
   JAI PRAKASH TIWARI v. STATE OF MADHYA PRADESH                                207
                 [N. V. RAMANA, CJI]

          the outer scene is visible. It is not true to say that I had merely   A
          heard the bang…… and even I had witnessed it.”
      Then again in cross-examination, it is stated:
          “…. I was not acquainted with the accused persons
          beforehand. It is not true to say that I have not seen the
          incident…”                                                            B

                                                     (emphasis supplied)
       12. It must be noted that the complainant clearly states that his
mother came to the spot after the incident. On the other hand, in the
chief examination, his mother states that she followed the complainant          C
when he went outside and therefore, she witnessed the incident. In her
cross-examination, she states that she came outside when she heard the
gunshot. However, she saw the incident from the verandah.
       13. Contradictions aside, it must be noted that the incident took
place at around 10:30 pm in the night. It is no-where mentioned that the        D
accused and PW3 were familiar to the extent that she could recognize
him in a fleeting moment while he was speeding away on his bike. She
also failed to provide any discernable features of the accused-appellant.
In fact, she specifically states that she was not acquainted with the
accused persons. It seems highly improbable that the mother of the
complainant, PW3 instantly recognized the appellant-accused at night.           E
No effort has been made to conduct an identification test, to associate
the accused-appellant with the alleged incident. After closely scrutinizing
the statement of PW3, mother of the complainant, we must state that
the same does not inspire confidence.
       14. The High Court and the trial Court have laid great emphasis          F
on the recovery of a motorcycle and a country-made pistol from the
possession of the accused-appellant.
     15. In this context, it is pertinent to note the statements of PW5
and PW8, the witnesses to the seizure:
      Deposition of PW5                                                         G

      In Examination-in-Chief, it is stated that:
      “Police had caught Jaiprakash and found one country made pistol
      while searching him….. I do not remember whether any
      documentation had been done or not. Then Jaiprakash had been              H
208            SUPREME COURT REPORTS                       [2022] 10 S.C.R.


A           held in the lockup and I had returned back. Police had not seized
            any vehicle before me.
            It is important to note that at this stage, the AGP sought
            permission to ask leading question to the witness declaring
            him hostile…… I do not remember this today that whether a
B           motorcycle had been seized from accused Jaiprakash before me
            or not.”
            In Cross-Examination, it is stated that:
            “I know Sandeep Upadhyaya. I have good terms with him….
            The neighbours of Jaiprakash were not present when the Police
C           had done proceedings, then said that people were there but he did
            not know them. No neighbours of Jaiprakash had signed the
            documents. Police had not called the neighbours of Jaiprakash.”
            Deposition of PW8

D           In Examination-in-Chief:
            Police had seized one country made pistol from accused. No other
            thing other than pistol had been seized before me nor had
            the accused stated to seize the same in my presence.
            It is not true to say that one black coloured Splendor motorcycle
E           wherein MP 17 MB 9735 was written had not been seized from
            accused Jaiprakash before me.”
                                                       (emphasis supplied)
             16. The sub-Inspector-Rahul Sharma (PW9) has stated in his
      evidence that the alleged motorcycle and the country made pistol were
F     seized from the complainant’s house based on the disclosure statement
      of the accused-appellant. However, the witnesses to the seizure (PW5
      and PW8) have given varying statements regarding the same. In fact,
      PW5 clearly stated that there was no recovery of bike, and he was,
      therefore, declared hostile by the prosecution. Moreover, although PW8
G     has stated that no other thing other than the pistol was seized, he
      contradicts himself by stating that indeed a black coloured splendor
      motorcycle was seized. The aforesaid contradiction in the statement of
      PW8 cannot be stated to be minor. The same, therefore, does not inspire
      confidence.

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   JAI PRAKASH TIWARI v. STATE OF MADHYA PRADESH                              209
                 [N. V. RAMANA, CJI]

       17. It also needs to be noted that there has been no recovery of       A
any pellet, empty cartridge, or any remains of the gunpowder from the
spot. In the absence of a ballistic report, there is no clear connection
between the seized weapon and the alleged incident. Moreover, even
the complainant had given a vague description of the motorcycle. Neither
the license number nor the colour or any other distinguishing features
                                                                              B
have been indicated by the complainant. Even here, there is no linking
factor between the seized vehicle and the alleged incident.
       18. Another important issue that merits consideration in the present
appeal is that the accused-appellant, in his Section 313 statement, stated
that he and the complainant belonged to opposing student parties. The
accused-appellant claimed that owing to the animosity pertaining to the       C
elections, the accused-appellant was falsely implicated in the matter. He
also produced two witnesses to prove his alibi. DW1 and DW2 have
stated that the accused appellant was in his village as his mother was
unwell. Moreover, the accused-appellant also pointed out to the Court
that the father, sister and brother of the complainant were all a part of     D
the police department. The accused-appellant also brought to the notice
of the Court the fact that the complainant had also registered another
criminal case against the accused-appellant in which he already stands
acquitted.
       19. In the case at hand, the alternate version put forth by the        E
appellant-accused could not be ignored. Section 313 CrPC confers a
valuable right upon an accused to establish his innocence and can well
be considered beyond a statutory right, as a constitutional right to a fair
trial under Article 21 of the Constitution.[See Reena Hazarika v. State
of Assam, (2019) 13 SCC 289]
                                                                              F
      20. This Court in the case of Satbir Singh v. State of Haryana,
(2021) 6 SCC 1, while emphasising upon the significance of Section 313
CrPC, has delineated the duty of the trial Court and held thus:
      “22. It is a matter of grave concern that, often, trial courts record
      the statement of an accused under Section 313 CrPC in a very            G
      casual and cursory manner, without specifically questioning the
      accused as to his defence. It ought to be noted that the
      examination of an accused under Section 313 CrPC cannot
      be treated as a mere procedural formality, as it is based on
      the fundamental principle of fairness. This provision
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210             SUPREME COURT REPORTS                     [2022] 10 S.C.R.


A          incorporates the valuable principle of natural justice —
           “audi alteram partem”, as it enables the accused to offer
           an explanation for the incriminatory material appearing
           against him. Therefore, it imposes an obligation on the part
           of the court to question the accused fairly, with care and
           caution. The court must put incriminating circumstances
B
           before the accused and seek his response. A duty is also
           cast on the counsel of the accused to prepare his defence, since
           the inception of the trial, with due caution…”
                                                      (emphasis supplied)
C           21. In the context of the abovementioned precedents, it is
      imperative to have a look at the evidence of the defence:
           “EXAMINATION OF ACCUSED NO.1
           Q3 On dated 14.2.03 at about 10:30 O’ clock in the night you
           accused and co-accused Pintu @ Padamdhar Dubey had come
D          to house of complainant Sandeep Upadhyay (PW2) situated at
           Arjun Nagar, Uttar Karodiya by Hero Honda Motorcycle bearing
           number MP 17B/9795. What do you say?
           Ans: It is incorrect. I had gone to village.
           DEFENCE PLEA OF ACCUSED
E
           When accused Jaiprakash Tiwari s/o Girija Prasad Tiwari has
           been called upon to enter his defence, then he states that:-
           I had not casted vote in the favour of Sandeep’s candidate in the
           election of college. Sandeep was in favour of N.S.U.I. I was in
F          favour of Vidhyarthi Parishad (Student Council). Due to this
           reason, I have been falsely implicated.
           On asking from the accused that whether he has to give defence
           evidence, then he states that :- I have to give defence evidence.
           DEPOSITION OF DW1
G
           EXAMINATION-IN-CHIEF
           1.     I know accused Jaiprakash and his parents. Their house is
                  at Maata; at Karaudia in Sidhi; at village Amahatola and
                  Hanumangarh, Veldah as well. On 14.02.2003, I had reached
                  the house of the accused at 9-9:15 hours at North Karaudia
H
   JAI PRAKASH TIWARI v. STATE OF MADHYA PRADESH                              211
                 [N. V. RAMANA, CJI]

             and taken him to his house at village Maata on motorcycle        A
             as his mother had fallen sick at village Maata. We had
             reached Maata at 11-11.30 hours. Then Jaiprakash Tiwari
             had called the Jan Swasthya Rakshak at about 12 hours
             and got his mother treated. Drip had been applied to his
             mother till morning on 15th and at that time two to four
                                                                              B
             people were there along with Jaiprakash.
             Deposition of DW2
             EXAMINATION-IN-CHIEF
      1.     I know accused Jaiprakash. His house is in Sidhi and at
             Maata as well. On 14.2.2003, Jaiprakash was at village           C
             Maata. Mother of Jaiprakash was suffering from vomiting
             and diarrhea and therefore as per my information Jaiprakash
             has been at village Maata from 11.00am till 8 am the other
             day on 15.2.2003.
      2.     I had myself seen Jaiprakash going to his house. I am            D
             neighbour of Jaiprakash. Jaiprakash had been called from
             Sidhi to Maata by Shankardayal as mother of Jaiprakash
             was not well. I had heard after 4-6 days that Jaiprakash
             had been arrested for some incident of the said date.”
                                                    (emphasis supplied)       E
       22. In the present case, the accused while being examined had
stated himself that he had gone to his village on the date of the incident.
To support his case, he produced two defence witnesses who have
corroborated his presence in the village. Furthermore, the accused claimed
to be falsely implicated in the case owing to political rivalry. However,     F
without scrutinizing the aforesaid plea of the defence, the trial Court
observes:
      “10. The accused Jayprakash Tiwari has not stated anything
      in his examination that he has been falsely implicated in
      the case by the. prosecution witnesses or any other reason              G
      or motive for his false implication. The evidence of the
      complainant Sandeep is corroborated by the evidence of Amit
      Bhasin_PW_10 and Vikash -PW-11 who had reached the place
      of occurrence immediately after the incident and in such situation
      the evidence of the complainant Sandeep Upaddhyay and other
                                                                              H
212            SUPREME COURT REPORTS                          [2022] 10 S.C.R.


A           prosecution witnesses is believable and it is proved from their
            evidence that on the date of incident the accused Jayprakash Tiwari
            had fired upon the complainant Sandeep Upaddhay from firearm
            katta with knowledge and intention under such circumstances that
            if the complainant had died then the accused Jayprakash Tiwari
            would be guilty of murder.”
B
                                                          (emphasis supplied)
            23. In a similar manner, the trial Court refused to weigh in the
      evidence of alibi. The trial Court while disbelieving the defense witnesses
      observes:
C           “14. In such a situation the defence plea of the accused
            appears to be an afterthought. From the perusal of the evidence
            of the defence witnesses Shankerdayal Mishra_DW_l and
            Krushnakumar Tiwari_PW-2 it is clear that both ·the witnesses
            are the neighbours of the accused and residents of same village.
D           Being farmers and after a gap of two years they have remembered
            the date of incident. It appears that these witnesses are trying
            to save the accused by stating his presence in their village.”
                                                          (emphasis supplied)
            24. The High Court without independently analyzing the aforesaid
E     statements and evidence, upholds the finding of the Trial Court. The
      High Court observes that:
            “22. This Court is in agreement with the findings of learned trial
            Court that, defence taken by the appellant has not been suggested
            any prosecution witness, nor stated by the appellant during his
F           accused statement under Section 313 of the Code of Criminal
            Procedure. The plea of alibi has been taken by the appellant is
            after thought. Hence, no benefit is granted in favour of the appellant
            with regard to plea of alibi. Thus, the conviction of the appellant
            under Section 307 of IPC, is hereby maintained.”
G           25. In the present case, the courts below failed to scrutinize the
      defence version put forward by the appellant-accused in his Section 313
      statement. The object of Section 313 of the Code is to establish a direct
      dialogue between the court and the accused. (See Asraf Ali v. State of
      Assam, (2008) 16 SCC 328)
H
   JAI PRAKASH TIWARI v. STATE OF MADHYA PRADESH                               213
                 [N. V. RAMANA, CJI]

       26. The purpose of Section 313 CrPC is to provide the accused a         A
reasonable opportunity to explain the adverse circumstances which have
emerged against him during the course of trial. A reasonable opportunity
entails putting all the adverse evidences in the form of questions so as to
give an opportunity to the accused to articulate his defence and give his
explanation.
                                                                               B
       27. If all the circumstances are bundled together and a single
opportunity is provided to the accused to explain himself, he may not
able to put forth a rational and intelligible explanation. Such, exercises
which defeats fair opportunity are nothing but empty formality. Non-
fulfilment of the true spirit of Section 313 may ultimately cause grave
prejudice to the accused and the Court may not have the benefit of all         C
the necessary facts and circumstances to arrive at a fair conclusion.
      28. Such an omission does not ipso facto vitiate the trial, unless
the accused fails to prove that grave prejudice has been caused to him.
Although the counsel on behalf the accused has not proved any serious
prejudice caused to him due to failure of the Court in framing individual      D
circumstances; however, considering the long pendency of the matter
and the right of the accused to have a fair and expeditious trial, we
propose to proceed and decide the matter on its own merit.
      29. It is an established principle of criminal law that the burden of
proving the guilt of the accused beyond reasonable doubt is upon the           E
prosecution. Where an accused sets up a defence or offers an
explanation, it is well-settled that he is not required to prove his defence
beyond a reasonable doubt but only by preponderance of probabilities.
[See M. Abbas v. State of Kerala, (2001) 10 SCC 103]. Further, it has
been held by this Court in Parminder Kaur v. State of Punjab, (2020)           F
8 SCC 811 that “once a plausible version has been put forth in
defence at the Section 313 CrPC examination stage, then it is for
the prosecution to negate such defence plea”.
      30. Moreover, it is the solemn duty of the courts below to consider
the defence of the accused. The same must be considered with caution           G
and must be scrutinised by application of mind by the judge. The Court
may accept or reject the same, however it cannot be done cursorily. The
reasoning and the application of mind must be reflected in writing.
However, from the observations extracted above, it is clear that the
courts below have failed to undertake this solemn duty. Rather, the
evidence of the accused has been dealt by the Court in a casual manner.        H
214              SUPREME COURT REPORTS                        [2022] 10 S.C.R.


A            31. In the above circumstances, when there is absence of
      independent evidence corroborating the statements made by complainant,
      serious doubts regarding the recovery of the alleged motorcycle and the
      country made pistol, no connection proved between the alleged recovered
      items and the alleged incident, and the plausible version put forward by
      the accused-appellant in his Section 313 statement has not been
B
      satisfactorily responded to by the prosecution, the case against the
      accused-appellant cannot be sustained.
             32. It is the duty of the Court to separate the grain from the chaff
      and to extract the truth from the mass of evidence. In our opinion, the
      case of the prosecution is based on mere conjectures and surmises. The
C     High Court and the trial Court failed to consider the abovementioned
      circumstances while rendering the judgment convicting the accused. The
      evidence brought on record by the prosecution is insufficient to prove
      the case against the appellant beyond reasonable doubt.
            33. For these reasons, the appeal is, therefore, allowed. The
D     conviction and sentence passed against the appellant are set aside. The
      appellant is on bail. The appellant stands discharged from the bail bonds.

      Nidhi Jain                                                   Appeal allowed.
      (Assisted by : Shashwat Jain, LCRA)
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