Before we part with this judgment, we must
take a note of subsection (5) added to Section 313 of CrPC w.e.f. 31st December 2009. Subsection (5) reads thus :
“313. Power to examine the accused.
(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.”
In many criminal trials, a large number of
witnesses are examined, and evidence is
voluminous. It is true that the Judicial Officers
have to understand the importance of Section 313.
But now the Court is empowered to take the help of
the prosecutor and the defence counsel in
preparing relevant questions. Therefore, when the
Trial Judge prepares questions to be put to the
accused under Section 313, before putting the
questions to the accused, the Judge can always
provide copies of the said questions to the learned
Public Prosecutor as well as the learned defence
Counsel and seek their assistance for ensuring that
every relevant material circumstance appearing
against the accused is put to him. When the Judge
seeks the assistance of the prosecutor and the
defence lawyer, the lawyers must act as the officers
of the Court and not as mouthpieces of their
respective clients. While recording the statement
under Section 313 of CrPC in cases involving a
large number of prosecution witnesses, the Judicial
Officers will be well advised to take benefit of subsection
(5) of Section 313 of CrPC, which will
ensure that the chances of committing errors and
omissions are minimized. {Para 21}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1471 of 2023
Raj Kumar @ Suman Vs State (NCT of Delhi)
Abhay S. Oka, J.
Dated: May 11, 2023.
1. Leave granted.
FACTUAL ASPECTS
2. Appellant (accused no.2) was convicted by
the Sessions Court by the Judgment dated 27th
August 2003 for the offences punishable under
Section 302 read with Section 120B
of the Indian
Penal Code (for short, ‘IPC’). For the offence under
Section 302, the appellant was sentenced to
undergo life imprisonment. He was also convicted
for the offence punishable under Section 307 read
with Section 120B
of IPC, for which he was
sentenced to undergo rigorous imprisonment for 7
years.
3. The allegation against this accused, along
with one Vimal (since deceased) and five others,
was that on 01st October 1995, around 03:30 pm,
they conspired to criminally intimidate and commit
the murder of Jawahar Lal (PW3)
and his relatives.
The allegation is that PW3
was running his own
cable TV network, and the accused wanted him to
stop the said cable TV network. The allegation of
the prosecution is that on 01st October 1995 at
about 03:30 pm, the accused entered the house of
PW3
Jawahar Lal where he, along with his family
members, were residing. Accused nos.4 and 5 fired
Crl.A.@SLP(Crl.)No.11256 of 2018
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bullets from their revolvers at Omi Devi, mother of
PW3
and Chander Shekhar (deceased – brother of
PW3).
Accused no.3 and deceased Vimal attacked
Chander Shekhar (deceased) and Omi with daggers
and knives. PW3
and PW7
suffered serious
injuries. As noted earlier, Chander Shekhar died.
We may note that admittedly the only allegation
against the present appellant (accused no.2) is that
while 6 other accused entered the house of PW3,
the appellant was standing near the gate of the
gallery with katta (countrymade
handgun) in his
hand. By the impugned judgment, the High Court
has confirmed the conviction of the appellant.
SUBMISSIONS
4. The learned counsel appearing for the
appellant pointed out that only PW5
Ved Prakash
deposed that the appellant was standing near the
gate of the gallery with katta in his hand. However,
PW3,
in the crossexamination,
accepted that he
Crl.A.@SLP(Crl.)No.11256 of 2018
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had not seen the present appellant on the day of
the incident and his name was told to him by PW5.
Learned counsel submitted that though the High
Court, in paragraph 84 of the impugned judgment,
has recorded a finding that even PW13
had seen
the appellant, in fact, PW13
has not deposed
anything about the appellant.
5. He submitted that the only circumstance
appearing in the evidence against the appellant that
he was standing outside near the gate of the gallery
with a katta was not put to him in his statement
under Section 313 of the Code of Criminal
Procedure, 1973 (for short, ‘CrPC’). He submitted
that this argument was specifically canvassed
before the High Court, which finds a place in the
written submissions filed on behalf of the
appellants, but the High Court did not consider it.
He relied upon decisions of this Court in the case of
Crl.A.@SLP(Crl.)No.11256 of 2018
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Ranvir Yadav v. State of Bihar1; Sukhjit Singh
v. State of Punjab2; Maheshwar Tigga v. State
of Jharkhand3; and Samsul Haque v. State of
Assam4. He submitted that as a result of the
failure of the Trial Court to put the only
circumstance appearing against the appellant
during his examination under Section 313 of CrPC,
grave prejudice has been caused to the appellant
resulting in failure of justice.
6. Learned counsel representing the
respondentState
submitted that the appellant did
not crossexamine
PW5.
He relied upon a decision
of this Court in the case of Satyavir Singh Rathi,
Assistant Commissioner of Police & Ors. v.
State through Central Bureau of Investigation5.
He submitted that in this decision, this Court held
1 (2009) 6 SCC 595
2 (2014) 10 SCC 270
3 (2020) 10 SCC 108
4 (2019) 18 SCC 161
5 (2011) 6 SCC 1.
Crl.A.@SLP(Crl.)No.11256 of 2018
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that the objection regarding the omission or defect
in recording the statement under Section 313, CrPC
must be raised at the earliest so that the defect can
be cured. He submitted that the said contention
was raised 16 years after the passing of the
judgment by the Trial Court. He would, therefore,
submit that, at this stage, this objection cannot be
sustained. He submitted that the very fact that the
said objection was not raised at any time earlier
shows that there is no prejudice caused to the
appellant due to the failure of the Court to put the
only circumstance against the appellant to him
while recording his statement under Section 313,
CrPC.
OUR VIEW
7. We have considered the submissions. There
is no dispute that the only allegation against the
appellant was that while six accused entered the
Crl.A.@SLP(Crl.)No.11256 of 2018
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house of PW3,
the appellant was standing outside
with a katta in his hand. In paragraph 84 of the
impugned judgment, the High Court has observed
that the evidence of PW3,
as regards the appellant,
creates some doubt. However, it was held that the
evidence of PW5
and PW13
is clear and consistent
as regards his involvement. We have, therefore,
perused the evidence of the said three prosecution
witnesses. PW3
Jawahar Lal deposed about the
entry of 6 other accused into his house at about
03:30 pm on 01st October 1995. He did not depose
that the appellant was standing outside with a
katta in his hand. In further examinationinchief,
he stated that in his statement recorded by the
police, he has wrongly mentioned that the accusedRajinder
Kumar was guarding the spot. He stated
that it was the appellant who was guarding the
spot. The High Court has expressed doubt about
the version of PW3
concerning the involvement of
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the present appellant. The reason given by the
High Court is that PW3
also stated that on the day
of the incident, he did not see the appellant, but his
name was told to him by PW5
Ved Prakash.
Therefore, the testimony of PW3
cannot be relied
upon to implicate the appellant.
8. We have carefully perused the evidence of
PW13.
Though the High Court has observed that
PW13
has ascribed a role to the appellant of
standing outside with a katta in his hand, we find
that PW13
has made no such statement in his
evidence.
9. Thus, what remains is the evidence of PW5.
All that he stated in his examinationinchief
was
that he saw Raj Kumar standing at the gate of the
gallery with a katta in his hand. He identified the
appellant in the Court.
10. Hence, the only circumstance brought on
record against the present appellant is in the
Crl.A.@SLP(Crl.)No.11256 of 2018
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evidence of PW5,
who stated that the appellant
was standing outside near the gate of the gallery
with a katta in his hand. No overt act was
attributed to him. There is a long statement of the
appellant under Section 313 of CrPC in which as
many as 42 questions were put to the appellant.
Question no.13 is about what PW5
deposed.
Admittedly, it was not put to the appellant that it is
brought on record that he was standing outside
near the gate of the gallery with a katta in his hand.
It is true that the answer given by him to every
question is “I don’t know”. If all the circumstances
put to the appellant in his statement under Section
313 CrPC are carefully perused, any person of
ordinary intelligence will get the impression that
none of the prosecution witnesses has stated
anything against him. That is why one cannot find
fault with the appellant when he gave standard
answers to every question as nothing adverse
Crl.A.@SLP(Crl.)No.11256 of 2018
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against him was put to him. We may note here that
in paragraph 13 of the written submissions by the
appellant before the High Court, a specific
contention was raised that the only circumstance
appearing against the appellant was not put to him
in the statement under Section 313 of CrPC. It is
not in dispute that this part of the argument is not
considered by the High Court. We may also note
that the Trial Court has not reproduced the
submissions made by the learned counsel
appearing for the accused.
11. Thus, we will have to proceed on the footing
that the only alleged incriminating circumstance
appearing against the appellant in the evidence
produced by the prosecution has not been put to
him in his statement under Section 313 of CrPC
and, therefore, he had no opportunity to explain the
said circumstance. Moreover, his conviction is
based only on this circumstance.
Crl.A.@SLP(Crl.)No.11256 of 2018
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12. Therefore, we will have to consider the effect
of the aforesaid omission on the part of the Trial
Court. The law on this aspect is no longer res
integra. Apart from the decisions relied upon by
the learned counsel representing the parties, there
are other important decisions on this aspect. The
first relevant judgment is of a Bench of four Hon’ble
Judges of this Court in the case of Tara Singh v.
State6. The Court considered the provision of
Section 342 of the Code of Criminal Procedure,
1898 (for short, ‘CrPC of 1898’). Section 313 of
CrPC and Section 342 of CrPC of 1898 are in pari
materia. In paragraph 18, this Court held thus :
“18. It is important therefore that an
accused should be properly examined
under Section 342 and, as their
Lordships of the Privy Council indicated
in Dwarkanath
Varma v. Emperor [Dwarkanath
Varma v. Emperor, AIR 1933 PC 124 at
p. 130 : 1933 SCC OnLine PC 11] , if a
point in the evidence is considered
6 1951 SCC OnLine SC 49
Crl.A.@SLP(Crl.)No.11256 of 2018
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important against the accused and
the conviction is intended to be
based upon it, then it is right and
proper that the accused should be
questioned about the matter and be
given an opportunity of explaining it
if he so desires. This is an important
and salutary provision and I cannot
permit it to be slurred over. I regret to
find that in many cases scant attention
is paid to it, particularly in the Sessions
Courts. But whether the matter arises
in the Sessions Court or in that of the
Committing Magistrate, it is important
that the provisions of Section 342
should be fairly and faithfully observed.”
(emphasis added)
Again in paragraph 23, this Court held thus:
“23. Section 342 requires the accused
to be examined for the purpose of
enabling him “to explain any
circumstances appearing in the evidence
against him”. Now it is evident that
when the Sessions Court is required to
make the examination under this
section, the evidence referred to is the
evidence in the Sessions Court and the
circumstances which appear against the
accused in that court. It is not therefore
enough to read over the questions and
answers put in the Committing
Magistrate's Court and ask the accused
whether he has anything to say about
Crl.A.@SLP(Crl.)No.11256 of 2018
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them. In the present case, there was not
even that. The appellant was not asked
to explain the circumstances appearing
in the evidence against him but was
asked whether the statements made
before the Committing Magistrate and
his answers given there were correctly
recorded. That does not comply with the
requirements of the section.”
The second important decision on this aspect is the
decision of a Bench of three Hon’ble Judges of this
Court. This is a decision in the case of Shivaji
Sahabrao Bobade & Anr. v. State of
Maharashtra7. In paragraph 16 of the decision,
this Court examined the issue of noncompliance
with the requirements of Section 342 of CrPC of
1898. Paragraph 16 reads thus:
“16. The discovery of incriminating
materials pursuant to confessions made
by the accused constitutes the third
category of evidence. Obviously, the
confessions are inadmissible but the
discoveries are, provided they are
pertinent to the guilt of the accused. So
far as Accused 2 is concerned, his
statement resulted in the discovery of a
knife (Vide Panchnama, Ext. 13). Of
7 (1973) 2 SCC 793
Crl.A.@SLP(Crl.)No.11256 of 2018
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course, knives were discovered long ago
and not now but this knife lay buried
and was recovered by the accused from
a pit in the corner of a wall of his house.
There was human blood on the blade of
the knife, MO 5/1 according to the
chemical analyst's report. The second
accused's clothes also were picked up
by him pursuant to his statement. He
had worn a shirt and pants on the day
of occurrence and PW 13, a neighbour
deposes that the second accused had
come to him at about 6 p.m. on the
Monday when Hariba died and had
mentioned to him that since his own
house was locked he might be permitted
to keep his clothes in the witnesses
house. Thereafter he left his clothes
under an empty khokha from where he
himself took them out when he later
came in the company of the police.
There are bloodstains
on the clothes
and it is found by the chemical
examiner that the blood on the pants
are of the same blood group as that of
the deceased. When the second accused
was asked under Section 342, CrPC
about the report of the chemical
examiner noticing blood stains on the
shirt, MO 5/2 and of human blood on
the blade of the knife, MO 5/1, he
merely answered, “I do not know”. He
also described as false the fact of his
recovering the clothes and the knife.
Bald denial notwithstanding, we are
inclined to believe, with the learned
Judges of the High Court, that the knife
and the shirt have been identified as his
Crl.A.@SLP(Crl.)No.11256 of 2018
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and since he had recovered them,
thereby making the police discover the
fact, there was incriminating inference
available against the said accused. We
may notice here a serious omission
committed by the trial Judge and not
noticed by either court. The pants
allegedly worn at the time of the attack
by the second accused has stains of
blood relatable to the group of the
deceased. This circumstance binds him
to the crime a little clear but it is
unfortunate that no specific question
about this circumstance has been put to
him by the Court. 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
Crl.A.@SLP(Crl.)No.11256 of 2018
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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. In
such a case, the Court proceeds on the
footing that though a grave irregularity
has occurred as regards compliance
with Section 342, CrPC, the omission
has not been shown to have caused
prejudice to the accused. In the present
case, however, the High Court, though
not the trial court has relied upon the
presence of blood on the pants of the
blood group of the deceased. We have
not been shown what explanation the
accused could have offered to this
chemical finding particularly when we
remember that his answer to the
question regarding the human blood on
the blade of the knife was “I do not
know”. Counsel for the appellants could
not make out any intelligent explanation
and the “blood” testimony takes the
crime closer to the accused. However,
we are not inclined to rely over much on
this evidentiary circumstance, although
we should emphasise how this
inadvertance of the trial court had led to
Crl.A.@SLP(Crl.)No.11256 of 2018
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a relevant fact being argued as
unavailable to the prosecution. Great
care is expected of Sessions Judges who
try grave cases to collect every
incriminating circumstance and put it to
the accused even though at the end of a
long trial the Judge may be a little
fagged out.”
(emphasis added)
13. Then we come to the decision of this Court in
the case of S. Harnam Singh v. State (Delhi
Admn.)8. In paragraph 22, this Court held thus :
“22. Section 342 of the Code of Criminal
Procedure, 1898, casts a duty on the
court to put, at any enquiry or trial,
questions to the accused for the purpose
of enabling him to explain any
circumstances appearing in the evidence
against him. It follows as a necessary
corollary therefrom that each
material circumstance appearing in
evidence against the accused is
required to be put to him specifically,
distinctly and separately. Failure to
do so amounts to a serious
irregularity vitiating the trial if it is
shown to have prejudiced the
accused. If the irregularity does not,
in fact, occasion a failure of justice, it
is curable under Section 537, of the
Code.”
8 (1976) 2 SCC 819
Crl.A.@SLP(Crl.)No.11256 of 2018
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(emphasis added)
14. Then we come to a decision in the case of
Samsul Haque4 relied upon by the learned counsel
for the appellant. In paragraphs 21 to 23, this
Court held thus :
“21. The most vital aspect, in our view,
and what drives the nail in the coffin in
the case of the prosecution is the
manner in which the court put the case
to Accused 9, and the statement
recorded under Section 313 CrPC. To
say the least it is perfunctory.
22. It is trite to say that, in view of
the judgments referred to by the
learned Senior Counsel, aforesaid, the
incriminating material is to be put to
the accused so that the accused gets
a fair chance to defend himself. This
is in recognition of the principles of
audi alteram partem. Apart from the
judgments referred to aforesaid by the
learned Senior Counsel, we may usefully
refer to the judgment of this Court
in Asraf Ali v. State of Assam [Asraf
Ali v. State of Assam, (2008) 16 SCC 328
: (2010) 4 SCC (Cri) 278] . The relevant
Crl.A.@SLP(Crl.)No.11256 of 2018
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observations are in the following
paragraphs : (SCC p. 334, paras 2122)
“21. 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
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.
22. The object of Section 313 of
the Code is to establish a direct
dialogue between the Court and
the accused. If a point in the
evidence is important against the
accused, and the conviction is
intended to be based upon it, it is
right and proper that the accused
should be questioned about the
matter and be given an
opportunity of explaining it.
Where no specific question has been
put by the trial court on an
inculpatory material in the
prosecution evidence, it would
Crl.A.@SLP(Crl.)No.11256 of 2018
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vitiate the trial. Of course, all these
are subject to rider whether they
have caused miscarriage of justice
or prejudice. This Court also
expressed a similar view in S.
Harnam Singh v. State (Delhi
Admn.) [S. Harnam Singh v. State
(Delhi Admn.), (1976) 2 SCC 819 :
1976 SCC (Cri) 324] while dealing
with Section 342 of the Criminal
Procedure Code, 1898
(corresponding to Section 313 of the
Code). Nonindication
of inculpatory
material in its relevant facets by the
trial court to the accused adds to
the vulnerability of the prosecution
case. Recording of a statement of
the accused under Section 313 is
not a purposeless exercise.”
23. While making the aforesaid
observations, this Court also referred to
its earlier judgment of the threeJudge
Bench in Shivaji Sahabrao
Bobade v. State of Maharashtra [Shivaji
Sahabrao Bobade v. State of
Maharashtra, (1973) 2 SCC 793 : 1973
SCC (Cri) 1033] , which considered the
fallout of the omission to put to the
accused a question on a vital
circumstance appearing against him in
the prosecution evidence, and the
requirement that the accused's attention
should be drawn to every inculpatory
material so as to enable him to explain
Crl.A.@SLP(Crl.)No.11256 of 2018
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it. Ordinarily, in such a situation, such
material as not put to the accused must
be eschewed. No doubt, it is recognised,
that where there is a perfunctory
examination under Section 313 CrPC,
the matter is capable of being remitted
to the trial court, with the direction to
retry from the stage at which the
prosecution was closed [Shivaji
Sahabrao Bobade v. State of
Maharashtra, (1973) 2 SCC 793 : 1973
SCC (Cri) 1033].”
(emphasis added)
15. Learned counsel for the respondent also
relied upon a decision of this Court in the case of
Vahitha v. State of Tamil Nadu9. This case does
not deal with the consequences of the omission
made while questioning the accused under Section
313 of CrPC. This deals only with a contingency
where evidence of the prosecution witnesses goes
unchallenged. Now we come to the decision of this
Court in the case of Satyavir Singh5 relied upon
by the learned counsel for the respondent. The
9 2023 SCC OnLine SC 174.
Crl.A.@SLP(Crl.)No.11256 of 2018
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decision holds that the challenge to the conviction
based on noncompliance
with Section 313 of CrPC
for the first time in the appeal cannot be
entertained unless the accused demonstrates that
prejudice has been caused to him. If an objection
is raised at the earliest, the defect can be cured by
recording an additional statement of the concerned
accused. The sum and substance of the said
decision is that such a long delay can be a factor in
deciding whether the trial is vitiated. Moreover,
what is binding is the decision of the larger Bench
in the case of Shivaji Sahabrao Bobade7, which
lays down that if there is prejudice caused to the
accused resulting in failure of justice, the trial will
vitiate.
16. The law consistently laid down by this Court
can be summarized as under:
(i) It is the duty of the Trial Court to put
each material circumstance appearing
Crl.A.@SLP(Crl.)No.11256 of 2018
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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;
(ii) 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;
(iii) The Court must ordinarily eschew
material circumstances not put to the
accused from consideration while
dealing with the case of the particular
accused;
(iv) The failure to put material
circumstances to the accused amounts
to a serious irregularity. It will vitiate
Crl.A.@SLP(Crl.)No.11256 of 2018
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the trial if it is shown to have prejudiced
the accused;
(v) If any irregularity in putting the
material circumstance to the accused
does not result in failure of justice, it
becomes a curable 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;
(vi) In case such irregularity is curable,
even the appellate court can question
the accused on the material
circumstance which is not put to him;
and
(vii) In a given case, the case can be
remanded to the Trial Court from the
stage of recording the supplementary
statement of the concerned accused
Crl.A.@SLP(Crl.)No.11256 of 2018
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under Section 313 of CrPC.
(viii) 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.
17. Now, we will have to apply the principles
enunciated by this Court to the facts of this case.
The High Court has reproduced the charge framed
on 04th July 1998 against the accused, which reads
thus :
“Charge
6. The charge framed against all the
accused by the order dated 4th July
1998 by the trial Court was as under :
(i) That on or before 1st October 1995
at around 3.30 pm at Delhi A1
to
A6
along with Vimal (since dead)
agreed to criminally intimidate and
commit the murder of Jawahar Lal
(PW3)
and his relatives on account
of the failure of PW3
to stop his
TV cable network in the area of
Crl.A.@SLP(Crl.)No.11256 of 2018
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Paschimpuri thereby committing
the offence of criminal conspiracy
punishable under Section 120B
IPC.
(ii) That at House No.618/3,
Paschimpuri on 1st October 1995,
in pursuance of the
aforementioned conspiracy, A4
and A5
fired bullets from their
respective revolvers on Smt. Omi
Devi and Chander Shekhar
whereas Vimal and A3
attacked
Chander Shekhar and Omi with
their respective dagger and knife
and committed their murders and
thus all of them had committed an
offence punishable under Section
302 read with 120B IPC.
(iii) All of them pursuant to the
criminal conspiracy attempted
to commit the murder of PW3
by firing bullets from their
revolvers on both PW3
and PW7
due to which both of them received
dangerous injuries and thereby all
of them committed an offence
punishable under Section 307 read
with 120B IPC.’
(emphasis added)
Crl.A.@SLP(Crl.)No.11256 of 2018
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18. In paragraph 7 of the High Court Judgment,
it is noted that a separate charge under Section 452
read with 120B
of IPC was framed against all
accused except the present appellant. Thus, the
charge as framed against the appellant was of being
a party to criminal conspiracy. There is also a
charge that all the accused fired bullets from their
revolver. Only based on the version of PW5
regarding the appellant’s presence with a weapon
outside the premises where the offence took place,
the involvement of the appellant has been held as
proved. There is absolutely no other evidence
against him. This is not a case where there are
several incriminating circumstances appearing
against the appellant in the evidence adduced by
the prosecution. This is a case where there is only
a solitary circumstance appearing in the evidence
against the appellant. The prosecution examined
Crl.A.@SLP(Crl.)No.11256 of 2018
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37 witnesses. The material against the appellant is
in the form of one sentence in the evidence of PW5.
As mentioned earlier, if we read 42 questions put to
the appellant in his statement under Section 313 of
CrPC, any accused having ordinary intelligence will
carry an impression that there is absolutely no
material against him. The appellant was not
confronted during his examination under section
313 of CrPC with the only allegation of the
prosecution against him. This is how, on facts, we
find that a serious prejudice was caused to the
appellant.
19. The incident is of 1995. It is not clear
whether this aspect was argued before the Trial
Court as the Trial Court has not reproduced the
submissions of the counsel for the appellant.
However, before the High Court, it was certainly
canvassed as it forms a part of the written
submissions.
Crl.A.@SLP(Crl.)No.11256 of 2018
Page 28 of 33
20. Even assuming that the defect or irregularity
was curable, the question is whether today, the
appellantaccused
can be called upon to explain the
said circumstance. More than 27 years have
passed since the date of the incident. Considering
the passage of time, we are of the view that it will
be unjust now at this stage to remit the case to the
Trial Court for recording further statement of the
appellant under Section 313 of CrPC. In the facts
of the case, the appellant cannot be called upon to
answer something which has transpired 27 years
back. There is one more aspect of the matter which
persuaded us not to pass an order of remand. The
said factor is that the appellant has already
undergone incarceration for a period of 10 years
and 4 months.
21. Before we part with this judgment, we must
take a note of subsection (5) added to Section 313 of CrPC w.e.f. 31st December 2009. Subsection (5) reads thus :
“313. Power to examine the accused.(
1) … … …
(2) … … … …
(3) … … … …
(4) … … … …
(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.”
In many criminal trials, a large number of
witnesses are examined, and evidence is
voluminous. It is true that the Judicial Officers
have to understand the importance of Section 313.
But now the Court is empowered to take the help of
the prosecutor and the defence counsel in
preparing relevant questions. Therefore, when the
Trial Judge prepares questions to be put to the
accused under Section 313, before putting the
questions to the accused, the Judge can always
provide copies of the said questions to the learned
Public Prosecutor as well as the learned defence
Counsel and seek their assistance for ensuring that
every relevant material circumstance appearing
against the accused is put to him. When the Judge
seeks the assistance of the prosecutor and the
defence lawyer, the lawyers must act as the officers
of the Court and not as mouthpieces of their
respective clients. While recording the statement
under Section 313 of CrPC in cases involving a
large number of prosecution witnesses, the Judicial
Officers will be well advised to take benefit of subsection
(5) of Section 313 of CrPC, which will
ensure that the chances of committing errors and
omissions are minimized.
22. In 1951, while delivering the verdict in the
case of Tara Singh6, this Court lamented that in
many cases, scant attention is paid to the salutary
provision of Section 342 of CrPC of 1898. We are
sorry to note that the situation continues to be the
same after 72 years as we see such defaults in large
number of cases. The National and the State
Judicial Academies must take a note of this
situation. The Registry shall forward a copy of this
decision to the National and all the State Judicial
Academies.
23. In the circumstances, we are of the view that
the conviction of the appellant stands vitiated. In
the facts of the case, the option of remand will be
unjust. Accordingly, we allow the appeal and set
aside the conviction and sentence of the appellant
under the Judgment and Order dated 27th August
2003 passed by the learned Additional Sessions
Judge, Delhi, in Sessions Case No.9 of 2000.
Consequently, the impugned judgment of the High
Court is also set aside. We make it clear that both
judgments are set aside only insofar as the
appellant is concerned. We, accordingly, direct that
the respondent shall forthwith set the appellant at
liberty unless he is required to be detained in
connection with any other case.
……………………………J.
[ABHAY S. OKA]
……………………………J.
[RAJESH BINDAL]
New Delhi
May 11, 2023.
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