Appellant’s contention is court did not put specific fact to him under section 313 Cr.P.C
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 Ranvir Yadav v. State of Bihar [(2009) 6 SCC 595]; Sukhjit Singh v. State of Punjab[(2014) 10 SCC 270]; Maheshwar Tigga v. State of Jharkhand[(2020) 10 SCC 108]; and Samsul Haque v. State of Assam [(2019) 18 SCC 161]. 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.
State’s contention is that the appellant did not raise this aspect at the earliest stage
6. Learned counsel representing the respondent-State submitted that the appellant did not cross-examine 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 Investigation – (2011) 6 SCC 1. He submitted that in this decision, this Court held 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
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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.
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Law on section 313 Cr.P.C is being summarized
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
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 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 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.
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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 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.
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Judicial officers are advised to take advantage of section313 (5) Cr.P.C by taking advice from P.P and defence counsels at the stage of questioning u/s 313 Cr.P.C
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.
Direction to National Judicial Academy to forward this judgment
22. In 1951, while delivering the verdict in the case of Tara Singh [1951 SCC OnLine SC 49], 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.
Accused Acquitted.
PARTY: Raj Kumar @ Suman vs State (NCT of Delhi) – CRIMINAL APPEAL NO. 1471 of 2023 [Arising out of S.L.P.(Crl.)No. 11256 of 2018] – May 11, 2023.
https://main.sci.gov.in/supremecourt/2018/46179/46179_2018_14_1501_44326_Judgement_11-May-2023.pdf
Raj Kumar @ Suman vs. State – May 12Raj Kumar @ Suman vs. State – May 12
