advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, January 10, 2015

Accused is not entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Cr.P.C. = CRIMINAL APPEAL NO.2388 OF 2014 (Arising out of S.L.P. (Crl.) No.8852 of 2013) 2 Nar Singh ….Appellant 3 Versus 5 State of Haryana ….Respondent


                                                                1 REPORTABLE


                                      2


                     3     IN THE SUPREME COURT OF INDIA


                      4 CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.2388  OF 2014
               (Arising out of S.L.P. (Crl.) No.8852 of 2013)




2 Nar Singh
….Appellant


                                  3 Versus





5 State of Haryana                                          ….Respondent



                               J U D G M E N T



R. BANUMATHI, J.



6                 Leave granted.

2.                This  appeal  is  directed  against  the  judgment   dated
30.08.2012 passed in Crl. Appeal D-960-DB/2006 by the High Court  of  Punjab
and Haryana dismissing the appeal of  accused-appellant  thereby  confirming
the conviction of the appellant under  Section  302,  IPC  and  sentence  of
rigorous imprisonment for life  and  a  fine  of  Rs.20,000/-  with  default
clause and conviction under Section 25  (1B)  of  the  Arms  Act,  1959  and
sentence of rigorous imprisonment for three years and a fine of  Rs.10,000/-
with default clause as imposed by the trial court.

3.          Briefly stated, case of the prosecution is  that  on  6.03.2005,
Rajbir went to sleep in the street on a cot at  about  7.30  p.m.  and  Daya
Nand (PW-7) also went to sleep in his house at about  9.00  p.m.   At  11.00
P.M., Daya Nand heard the sound of vomiting of his brother and he  came  out
and found his brother  Rajbir  crying  in  pain.   PW-7  called  his  father
Chander Bhan and both of them noticed injuries on  the  forehead  of  Rajbir
with profuse bleeding.  PW-7 went to call the doctor but the doctor  refused
to accompany  him.   When  Daya  Nand  returned  back,  Rajbir  had  already
succumbed to injuries. Law was set in motion by PW-7 and FIR was  registered
under Section 302, IPC.  PW-14 had taken up the  investigation  and  inquest
was conducted on the body of the deceased Rajbir.  Dr. J.K.  Bhalla  (PW-10)
conducted autopsy on the body of deceased Rajbir and a  country-made  bullet
was seized from the occipital area of the brain of  deceased  Rajbir.    Dr.
Bhalla opined that the death was due to injury to the brain  and  he  issued
Ex P-13-post mortem certificate.  Site plan of the scene of  occurrence  was
prepared  and  material  objects  were  seized.  The  appellant-accused  was
arrested on 14.03.2005 and based on his confession statement, a  pistol  was
recovered behind a water tank in the house of  the  appellant-accused.   The
bullet (chambered for .315”  &  .303”  caliber  firearms)  and  country-made
pistol (chambered for .315” & .303” cartridges) were sent for the  Ballistic
Expert opinion. The Ballistic Expert opined  that  the  country-made  bullet
(chambered for .315” & .303” caliber  firearms)  had  been  fired  from  the
above-said country-made pistol and not from any other  firearm.  On  receipt
of the Ballistic Expert opinion and  on  completion  of  the  investigation,
charge sheet was filed against the appellant  under  Section  302  IPC,  and
Section 25(1B) of the Arms Act.

4.          To bring home the guilt of  the  accused,  the  prosecution  has
examined PWs 1 to 14 and exhibited  documents  and  material  objects.  Upon
consideration of the evidence, trial court  convicted  the  appellant  under
Section 302 IPC and Section 25(1B) of the Arms  Act  and  sentenced  him  to
undergo imprisonment as aforesaid. On appeal, the High  Court  affirmed  the
conviction for both the offences and imposed  sentence  of  imprisonment  on
the appellant. Being aggrieved, the appellant has preferred this  appeal  by
special leave.

5.          Being based on circumstantial evidence,  prosecution  relied  on
the following circumstances to establish the guilt of the accused:-

(i) Motive – evidence of PW-8, mother of the deceased, who had spoken  about
an incident that had happened 18 years ago when  Rajbir-  the  deceased  and
Hoshiar Singh– father of the accused were bringing  'boorada'  from  village
Satnali in a mechanised cart and that the said cart overturned  on  the  way
and Hoshiar Singh died in the accident due to which the  appellant  and  his
family had a grudge against Rajbir, as they felt that Rajbir had killed  his
father.  She  further  stated  that  about  four  years  back,  the  accused
threatened Rajbir that he would avenge the murder of his father;

(ii)  Evidence of PW-11 Ranbir Singh, who deposed that  on  06.03.2005  when
he came out of his house at about 11.00  p.m.,  he  saw  the  appellant  Nar
Singh running in the street.  PW-11 also claims to have heard the  sound  of
fire-arm shot;

(iii) Disclosure statement of the appellant which led  to  the  recovery  of
country-made pistol (chambered for .315” and .303”  caliber  firearms)  from
behind the water tank of appellant's house;

(iv) Exhibit P-13  and evidence of PW-10, Dr.  J.K.  Bhalla,  who  conducted
post mortem on the body of the deceased Rajbir  and  recovery  of  a  bullet
from occipital area of the brain of deceased Rajbir; and

(v)  Opinion of the Ballistic  Expert  (Ext.  P-12)  that  the  country-made
bullet (chambered for .315” & .303” caliber firearms) had  been  fired  from
the country-made pistol (chambered for .315 & .303 cartridges) recovered  in
pursuance of the disclosure statement of the accused and not from any  other
 firearm.



Trial court as well as the High Court held that the above circumstances  are
proved by the prosecution and that they form a complete  chain  establishing
guilt of the accused resulting in conviction of the appellant.  While  doing
so, trial court relied upon the Forensic  Science  Laboratory  Report  (FSL)
(Ex P-12) as a vital piece of  evidence  against  the  appellant.  The  High
Court also relied upon FSL report as a  material  evidence  to  sustain  the
conviction of the appellant.

6.           Mr.  Sushil  Kumar  Jain,  learned  Senior  Counsel   for   the
appellant, contended that none of  the  circumstances  relied  upon  by  the
courts  below  had  been  established  beyond  reasonable  doubt  and  those
circumstances, either cumulatively or  individually,  were  insufficient  to
establish the guilt of the accused. Learned Senior Counsel mainly  contended
that the only incriminating circumstantial evidence  against  the  appellant
was Ex P-12 FSL report and the same was not put to the  appellant  while  he
was being questioned under Section 313 of the Criminal Procedure Code.    It
was submitted that Section 313 Cr.P.C. makes it mandatory  to  put  all  the
incriminating evidence and circumstances to the  accused  and  Ex  P-12  FSL
report, which is the basis for conviction of the  appellant,  has  not  been
put to the accused and non-questioning of the accused as to the vital  piece
of evidence is fatal to the prosecution case and  vitiates  the  conviction.
Reliance was placed upon State of Punjab v. Hari Singh & Ors., (2009) 4  SCC
200.

7.          Mr. Narender Hooda, learned  Addl.  Advocate  General  appearing
for the State of Haryana, submitted that all the circumstances  against  the
appellant were established by  the  prosecution  and  learned  courts  below
recorded concurrent findings  as  to  the  guilt  of  the  accused.  Learned
counsel contended that non-questioning of accused as to Ex P 12  FSL  report
and expert opinion during questioning under Section 313  Cr.P.C.  by  itself
will not vitiate the trial and the accused has to  establish  the  prejudice
caused to him.  It was submitted that omission to put  the  FSL  report  and
expert  opinion  to  the  appellant  under  Section  313  Cr.P.C.  and  that
prejudice being caused to the appellant was  neither  raised  in  the  trial
court nor before the High Court and it is  not  open  to  the  appellant  to
raise such a plea in this Court for the first time.

8.          As main thrust of argument of the appellant is on  the  question
of non-compliance of Section 313 Cr.P.C., we do not propose to consider  the
appeal on merits,  except  on  the  important  question  viz.  whether  non-
compliance of the mandatory provisions of Section 313 Cr.P.C.  vitiates  the
trial and conviction of the appellant.

9.          The power to examine the accused  is  provided  in  Section  313
Cr.P.C. which reads as under:-

“313. Power to examine the accused.- (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.”


10.         There are two kinds of examination  under  Section  313  Cr.P.C.
The first under Section 313 (1) (a) Cr.P.C. relates  to  any  stage  of  the
inquiry or trial; while the second under Section 313 (1) (b)  Cr.P.C.  takes
place after the prosecution witnesses are examined and  before  the  accused
is called upon to enter upon his defence.   The  former  is  particular  and
optional; but the latter is general and mandatory.  In  Usha  K.  Pillai  v.
Raj K. Srinivas & Ors., (1993) 3 SCC 208, this Court held that the Court  is
empowered by Section 313 (1) clause (a)  to  question  the  accused  at  any
stage of the inquiry or trial; while Section  313(1)  clause  (b)  obligates
the Court to question the accused  before  he  enters  his  defence  on  any
circumstance appearing in prosecution evidence against him.

11.         The object of  Section  313  (1)(b)  Cr.P.C.  is  to  bring  the
substance of accusation to the accused to  enable  the  accused  to  explain
each and every circumstance appearing in  the  evidence  against  him.   The
provisions of this section are mandatory and cast a duty  on  the  court  to
afford an opportunity to the accused to explain each and every  circumstance
and incriminating evidence against him.  The examination  of  accused  under
Section 313 (1)(b) Cr.P.C. is not a mere  formality.   Section  313  Cr.P.C.
prescribes a procedural safeguard for an accused, giving him an  opportunity
to explain  the  facts  and  circumstances  appearing  against  him  in  the
evidence and this  opportunity  is  valuable  from  the  standpoint  of  the
accused.  The real importance of  Section 313 Cr.P.C.  lies  in   that,   it
imposes  a duty  on the Court to question the accused properly   and  fairly
so as to bring home to him  the exact  case  he  will   have  to   meet  and
thereby,  an opportunity  is given to him to explain any such point.

12.         Elaborating upon the importance of  a  statement  under  Section
313 Cr.P.C., in Paramjeet Singh alias Pamma      v.  State  of  Uttarakhand,
(2010) 10 SCC 439 (para 22), this Court has held as under:


5 “Section 313 CrPC is based on the fundamental principle of  fairness.  The
attention of the accused must specifically be brought to inculpatory  pieces
of evidence to give him  an  opportunity  to  offer  an  explanation  if  he
chooses to do so.  Therefore, the court is under a legal obligation  to  put
the  incriminating  circumstances  before  the  accused  and   solicit   his
response.  This provision is mandatory in nature  and  casts  an  imperative
duty on the court and confers a corresponding right on the accused  to  have
an opportunity to offer  an  explanation  for  such  incriminatory  material
appearing against him. Circumstances which were not put to  the  accused  in
his examination under Section 313 CrPC cannot be used against him  and  have
to be excluded from consideration.” (vide Sharad Birdichand Sarda  v.  State
of Maharashtra(1984) 4 SCC  116 and State of Maharashtra  v.  Sukhdev  Singh
(1992)  3 SCC 700.



13.         In Basava R. Patil & Ors. v. State of Karnataka &  Ors.,  (2000)
8 SCC 740, this Court considered the scope of Section  313  Cr.P.C.  and  in
paras (18) to (20) held as under:-

“18. What is the object of examination of an accused under  Section  313  of
the Code? The section itself declares the object in explicit  language  that
it is “for the purpose of enabling the accused  personally  to  explain  any
circumstances appearing in the evidence against him”. In Jai  Dev  v.  State
of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as  he  then  was)  speaking
for a three-Judge Bench has focussed on the  ultimate  test  in  determining
whether the provision has been fairly complied with. He observed thus:

“The ultimate test in determining  whether  or  not  the  accused  has  been
fairly examined under Section  342  would  be  to  enquire  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.”

19. Thus it is well  settled  that  the  provision  is  mainly  intended  to
benefit the accused and as its corollary to benefit the  court  in  reaching
the final conclusion.

20. At the same time it should be borne in mind that the  provision  is  not
intended to nail him to any position, but to comply with the  most  salutary
principle of natural justice enshrined in the  maxim  audi  alteram  partem.
The word “may” in clause (a) of sub-section (1) in Section 313  of  [pic]the
Code indicates, without any doubt, that even if the court does not  put  any
question under that clause the accused cannot raise any  grievance  for  it.
But if the court fails to put the needed question under clause  (b)  of  the
sub-section it would result  in  a  handicap  to  the  accused  and  he  can
legitimately claim that no evidence, without affording him  the  opportunity
to explain, can be  used  against  him.  It  is  now  well  settled  that  a
circumstance about which the accused was not  asked  to  explain  cannot  be
used against him.”



14.         Main contention of the appellant  is  that  since  the  material
evidence Ex-P12 and Ballistic Expert opinion was  not  put  to  him  in  his
statement under Section 313 Cr.P.C., it must  be  completely  excluded  from
consideration and barring the same, there is no other  evidence  to  sustain
the conviction and reliance was placed upon Avtar Singh & Ors. v.  State  of
Punjab, (2002) 7 SCC 419.

15.            In Avtar Singh’s case, when the accused were  examined  under
Section 313 Cr.P.C., the essence of accusation, particularly the  possession
of goods was not brought to their notice.  It  was  also  noticed  that  the
possibility of the accused persons being labourers  of  the  truck  was  not
ruled out by evidence.  Avtar Singh’s case was rendered on consideration  of
several peculiar factual aspects of that case and it does not lay  down  the
law of universal application as it had been decided on its own facts.

16.         Undoubtedly, the importance of a  statement  under  Section  313
Cr.P.C., insofar as the accused is concerned, can hardly be minimised.   The
statutory provision is  based  on  the  rules  of  natural  justice  for  an
accused, who must be made aware of the circumstances being put  against  him
so that he can give a proper explanation to meet that case. If an  objection
as to Section 313 Cr.P.C.  statement is taken at  the  earliest  stage,  the
Court can  make good the defect and record  additional   statement  of   the
accused  as that would be  in the interest of all.  When  objections  as  to
defective Section 313 Cr.P.C. statement is raised in  the  appellate  court,
then difficulty arises for the prosecution as well  as  the  accused.   When
the trial court  is  required  to  act  in  accordance  with  the  mandatory
provisions of Section 313 Cr.P.C., failure on the part of  the  trial  court
to comply with the mandate of the law, in  our  view,  cannot  automatically
enure to the benefit of the accused.   Any  omission  on  the  part  of  the
Court to question the accused on any incriminating  circumstance  would  not
ipso facto vitiate the trial, unless some material  prejudice  is  shown  to
have been caused to the accused.  Insofar  as  non-compliance  of  mandatory
provisions of Section 313 Cr.P.C., it is an error essentially  committed  by
the learned Sessions Judge.  Since justice  suffers  in  the  hands  of  the
Court, the same has to be corrected or rectified in the appeal.

17.         So far as Section 313 Cr.P.C.  is  concerned,  undoubtedly,  the
attention of the accused must specifically be brought to  inculpable  pieces
of evidence to give him an  opportunity  to  offer  an  explanation,  if  he
chooses to do so.  A three-Judge Bench of this Court in Wasim  Khan  v.  The
State of Uttar Pradesh, AIR 1956 SC 400; and Bhoor Singh & Anr. v. State  of
Punjab, AIR 1974 SC 1256 held that every error  or  omission  in  compliance
of the provisions of Section 342 of the old  Cr.P.C.  does  not  necessarily
vitiate trial.  The accused must show that some prejudice  has  been  caused
or was likely to have been caused to him.

18.         Observing that omission to put  any  material   circumstance  to
the accused does not  ipso facto vitiate the  trial  and  that  the  accused
must show prejudice and that miscarriage of justice had  been  sustained  by
him, this Court in Santosh Kumar Singh v State through  CBI,  (2010)  9  SCC
747 (Para 92),  has held as under:

   “... the facts of each case have to be examined but the  broad  principle
is that all incriminating material circumstances must be put to  an  accused
while recording his statement under Section 313 of  the  Code,  but  if  any
material circumstance has been left out that would not ipso facto result  in
the exclusion of that evidence from consideration unless  it  could  further
be shown by the accused that prejudice and miscarriage of justice  had  been
sustained by him...”



19.          In Paramjeet Singh alias Pamma v State of Uttarakhand  (supra),
this Court has held as under:-

“Thus, it is evident from the above  that  the  provisions  of  Section  313
Cr.P.C. make it obligatory for the court to  question  the  accused  on  the
evidence and circumstances against  him  so  as  to  offer  the  accused  an
opportunity to explain the same.  But,  it  would  not  be  enough  for  the
accused to show that he has not been questioned or examined on a  particular
circumstance, instead, he must show that such non-examination  has  actually
and materially prejudiced him and has resulted in the  failure  of  justice.
In other words, in the event of any inadvertent omission on the part of  the
court to question the accused on an incriminating circumstance  cannot  ipso
facto vitiate the trial unless it is shown that some material prejudice  was
caused to the accused by the omission of the court.”



20.         The question whether a trial is vitiated  or  not  depends  upon
the degree of the error and the accused must  show  that  non-compliance  of
Section 313 Cr.P.C. has materially prejudiced him  or  is  likely  to  cause
prejudice to him.  Merely because of  defective  questioning  under  Section
313 Cr.P.C., it cannot be inferred that any prejudice  had  been  caused  to
the accused, even assuming that  some  incriminating  circumstances  in  the
prosecution case had been left out.    When  prejudice  to  the  accused  is
alleged, it has to be shown that accused has  suffered  some  disability  or
detriment in relation to the  safeguard  given  to  him  under  Section  313
Cr.P.C.  Such prejudice should  also  demonstrate  that  it  has  occasioned
failure of justice to the accused.  The burden is upon the accused to  prove
that prejudice has been caused to him or in the facts and  circumstances  of
the case, such  prejudice  may  be  implicit  and  the  Court  may  draw  an
inference of such prejudice.  Facts of each case  have  to  be  examined  to
determine whether actually any prejudice has been caused  to  the  appellant
due to omission  of  some  incriminating  circumstances  being  put  to  the
accused.

21.         We may refer to few judgments of this  Court  where  this  Court
has held that omission to put the question under  Section  313  Cr.P.C.  has
caused prejudice to the accused  vitiating  the  conviction.   In  State  of
Punjab v Hari Singh & Ors. (2009) 4 SCC 200,  question  regarding  conscious
possession of narcotics was not put to the  accused  when  he  was  examined
under Section 313 Cr.P.C.   Finding  that  question  relating  to  conscious
possession of contraband was not put to the accused, this  Court  held  that
the effect of such omission vitally affected the prosecution case  and  this
Court affirmed the acquittal.  In  Kuldip   Singh   &   Ors.  v   State   of
Delhi  (2003) 12 SCC 528, this Court held that when important  incriminating
circumstance was not  put  to  the  accused  during  his  examination  under
Section 313 Cr.P.C., prosecution cannot place reliance on the said piece  of
evidence.

22.              We may also refer to other set of decisions  where  in  the
facts and circumstances of the case, this Court held that  no  prejudice  or
miscarriage of justice has been occasioned  to  the  accused.    In  Santosh
Kumar Singh v State thr. CBI (supra), it was held that on  the  core  issues
pertaining to the helmet and the ligature marks on the neck which  were  put
to the doctor,  the  defence  counsel  had  raised  comprehensive  arguments
before the trial court and also before the High Court and the  defence  was,
therefore, alive to the circumstances against  the  appellant  and  that  no
prejudice or  miscarriage  of  justice  had  been  occasioned.   In  Alister
Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648, in the  facts  and
circumstances, it was held that by not putting to  the  appellant  expressly
the chemical analyser’s report and the evidence of the doctor, no  prejudice
can be  said  to  have  been  caused  to  the  appellant  and  he  had  full
opportunity to say what he wanted to say  with  regard  to  the  prosecution
evidence and that the High Court rightly  rejected  the  contention  of  the
appellant-accused in that regard.

23.          When such objection as to omission to put  the  question  under
Section 313 Cr.P.C. is raised by the accused  in  the  appellate  court  and
prejudice is also shown to have been caused to the accused,  then  what  are
the courses available to the appellate court?   The  appellate   court   may
examine the convict or 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  under Section  313  Cr.P.C.  and  the  said
answer can be taken into consideration.

24.          In Shivaji Sahabrao Bobade &  Anr.  vs.  State  of  Maharashtra
(1973) 2 SCC 793, this Court considered the fallout of the omission  to  put
a question to the accused on vital circumstance appearing  against  him  and
this Court has held that the appellate court can question  the  counsel  for
the accused as regards the circumstance omitted to be  put  to  the  accused
and in para 16 it was held as under:-

  “ … 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.  In such a case, the Court proceeds on the footing  that  though
a grave irregularity has occurred as regards compliance  with  Section  342,
Cr.P.C., the omission has not been shown to have  caused  prejudice  to  the
accused....”(underlining added)



25.         The same view was reiterated by this  Court  in    State  (Delhi
Administration) vs. Dharampal, (2001) 10 SCC 372,  wherein  this  Court  has
held  as under:-

 “Thus it is to be seen that where an omission, to bring  the  attention  of
the accused to an inculpatory material has occurred  that  does  not    ipso
facto vitiate the proceedings.   The  accused  must  show  that  failure  of
justice was occasioned by such  omission.   Further,  in  the  event  of  an
inculpatory  material not having been put to   the  accused,  the  appellate
Court can always  make good that lapse by calling upon the counsel  for  the
accused  to  show   what  explanation  the  accused  has  as   regards   the
circumstances established against the accused  but not put to him.

This being the law, in our view, both the Sessions Judge and the High  Court
were wrong in concluding that the omission  to  put  the   contents  of  the
certificate  of the Director, Central Food Laboratory, could only result  in
 the accused  being acquitted. The accused had to show that  some  prejudice
was caused to him by the report not being put to him.   Even  otherwise,  it
was the duty of the Sessions Judge and/or the  High  Court,  if  they  found
that some vital circumstance had not been put to the accused, to  put  those
questions to the counsel  for  the  accused  and  get  the  answers  of  the
accused.  If  the  accused  could  not  give  any  plausible  or  reasonable
explanation, it would have to be assumed  that  there  was  no  explanation.
Both the Sessions Judge and the High Court have overlooked this position  of
law and failed to perform their duties and  thereby  wrongly  acquitted  the
accused.”



26.         This Court  has  thus  widened  the  scope  of   the  provisions
concerning  the  examination  of  the  accused  after  closing   prosecution
evidence and the explanation offered  by the counsel of the accused  at  the
 appeal stage  was held to  be  a  sufficient  substitute  for  the  answers
given by the  accused himself.

27.         The point then arising   for  our  consideration   is,  if   all
relevant  questions   were  not  put  to  accused  by  the  trial  court  as
mandated under Section 313 Cr.P.C. and where the  accused   has  also  shown
that prejudice has been caused  to him  or  where  prejudice   is  implicit,
whether the appellate court  is  having the power to remand the case for re-
decision from the  stage   of  recording  of  statement  under  Section  313
Cr.P.C. Section 386 Cr.P.C. deals with power of the appellate court. As  per
sub-clause (b) (i) of Section 386 Cr.P.C., the  appellate  court  is  having
power to order retrial of the case by  a  court  of  competent  jurisdiction
subordinate  to  such  appellate  court.   Hence,   if  all   the   relevant
questions were not put  to accused  by the trial court and when the  accused
has shown that prejudice  was caused to him, the appellate court  is  having
power to remand the case  to examine the accused again  under   Section  313
Cr.P.C. and may direct remanding  the case again for  re-trial of  the  case
from that stage of recording  of statement under  Section  313  Cr.P.C.  and
the same cannot be said to  be  amounting  to  filling  up  lacuna   in  the
prosecution case.

28.         In Asraf Ali vs.  State of Assam (2008) 16 SCC 328,  this  Court
has examined the scope and object of examination of  accused  under  Section
313 Cr.P.C. and in para (24) it was observed  that  in  certain  cases  when
there is perfunctory examination under Section 313 of the Code,  the  matter
could be remitted to the trial court with a  direction  to  retry  from  the
stage at which the prosecution was closed.

29.         In Ganeshmal Jashraj vs. Government of Gujarat & Anr., (1980)  1
SCC 363, after closure of evidence of the  prosecution  and  examination  of
accused under Section 313 Cr.P.C. was completed, the  accused  admitted  his
guilt  presumably  as a  result of plea bargaining  and    the  accused  was
convicted.   Pointing  out  that  the  approach  of  the  trial  court   was
influenced  by  the  admission  of  guilt  made  by  the  accused  and  that
conviction of the accused cannot be sustained, this Court has remanded  case
to trial court to  proceed  afresh  from  the  stage  of  examination  under
Section 313 Cr.P.C.

30.         Whenever a plea of omission to put a question to the accused  on
vital piece of evidence is raised in the appellate court, courses  available
to the appellate court can be briefly summarised as under:-

(i)   Whenever a plea of non-compliance of Section 313  Cr.P.C.  is  raised,
it is within the powers of  the  appellate  court  to  examine  and  further
examine the convict or the counsel appearing for the accused  and  the  said
answers shall be taken into consideration for deciding the matter.   If  the
accused is unable to offer the appellate court  any  reasonable  explanation
of such  circumstance,  the  court  may  assume  that  the  accused  has  no
acceptable explanation to offer;



(ii)  In the facts and circumstances of the case,  if  the  appellate  court
comes to the conclusion that no  prejudice  was  caused  or  no  failure  of
justice was occasioned, the appellate court will hear and decide the  matter
upon merits.

(iii)       If the appellate court is of  the  opinion  that  non-compliance
with the provisions of Section 313 Cr.P.C.  has occasioned or is  likely  to
have occasioned prejudice  to the accused, the appellate  court  may  direct
retrial from the stage of recording  the statements of the accused from  the
point  where  the  irregularity  occurred,  that  is,   from  the  stage  of
questioning   the accused under Section 313 Cr.P.C. and the trial Judge  may
be directed to examine the accused afresh and defence  witness  if  any  and
dispose of the matter afresh;

(iv)  The appellate court may decline to  remit  the  matter  to  the  trial
court for retrial on account of long time already spent in the trial of  the
case and the period of sentence already undergone by the convict and in  the
facts and circumstances of the case,  may  decide  the  appeal  on  its  own
merits, keeping in view the prejudice caused to the accused.



31.         On the question of remitting the matter back to the trial  court
on the ground of non-compliance  of  mandatory  provisions  of  Section  313
Cr.P.C., learned counsel for the appellant contended  that  in  the  present
case, the accused is in custody for more than eight years  and  the  accused
person cannot be kept under trial indefinitely and that the  accused  has  a
right to  speedy  trial.  The  learned  counsel  placed  reliance  upon  the
judgment of this Court in Abdul Rehman Antulay And Ors. vs. R.S.  Nayak  And
Anr., (1992) 1 SCC 225.  In paras  (63) and (64) of  the  said  judgment  it
was  held as  under:-


 “63. In Machander v. State  of  Hyderabad  (1955)  2  SCR  524  this  Court
observed that while it is incumbent on the  Court  to  see  that  no  guilty
persons escapes, it is still more its  duty  to  see  that  justice  is  not
delayed and accused persons are not indefinitely harassed. The  scales,  the
Court observed, must be held even between the prosecution and  the  accused.
In the facts of that case, the Court refused to order trial  on  account  of
the time already spent and other relevant circumstances of that case.

64. In Veerabadran Chettiar v. Ramaswami Naicker (1959) SCR 1211 this  Court
refused to send back proceedings on the ground  that  already  a  period  of
five years has  elapsed  and  it  would  not  be  just  and  proper  in  the
circumstances of the case to continue the proceedings after such a lapse  of
time. Similarly, in Chajoo Ram v. Radhey Shyam ((1971) 1 SCC 774  the  Court
refused to direct a re-trial after a period of 10  years  having  regard  to
the facts and circumstances of the case. In  State  of  U.P.  v.  Kapil  Deo
Shukla ((1972) 3 SCC 504, though  the  Court  found  the  acquittal  of  the
accused unsustainable, it refused to order a remand or direct a trial  after
a lapse of 20 years”.


32.         While we are of the view that the matter has to be  remitted  to
the trial court for proceeding afresh from the stage of Section 313  Cr.P.C.
questioning, we are not oblivious of the right  of  the  accused  to  speedy
trial and that the courts are to  ensure  speedy  justice  to  the  accused.
While it is incumbent upon the Court to see that persons  accused  of  crime
must be given a fair trial and  get  speedy  justice,  in  our  view,  every
reasonable  latitude  must  be  given  to  those  who  are  entrusted   with
administration of justice.   In the facts and circumstances  of  each  case,
court should examine whether remand of the matter to the trial  court  would
amount to indefinite harassment of the accused.  When there is  omission  to
put material evidence to the accused in  the  course  of  examination  under
Section  313  Cr.P.C.,  prosecution  is  not  guilty  of  not  adducing   or
suppressing such evidence; it is  only  the  failure  on  the  part  of  the
learned trial court.  The victim of the offence or the  accused  should  not
suffer for laches or omission of the court.  Criminal justice  is  not  one-
sided.   It  has  many  facets  and  we  have  to  draw  a  balance  between
conflicting rights and duties.

33.         Coming to the facts of this case, FSL Report            (Ex-P12)
was relied upon both by the trial court as well as by the High  Court.   The
objection as to the defective 313 Cr.P.C. statement has not been  raised  in
the trial court or in  the     High  Court  and  the  omission  to  put  the
question under Section 313 Cr.P.C., and prejudice caused to the  accused  is
raised before this Court for the first time.   It was brought to our  notice
that the appellant is in custody for about eight years.  While the right  of
the accused to speedy trial is a valuable one, Court  has  to  subserve  the
interest of justice keeping in view the right of  the  victim’s  family  and
the society at large.

34.         In our view,  accused is not entitled    for  acquittal  on  the
ground of non-compliance of mandatory  provisions  of  Section  313  Cr.P.C.
We agree  to some extent  that the appellant is  prejudiced on  account   of
omission to put the question  as to the opinion  of  Ballistic  Expert  (Ex-
P12) which was relied upon  by the trial court  as  well  as   by  the  High
Court.  Trial court should have been more careful in framing  the  questions
and in ensuring that all material evidence and  incriminating  circumstances
were put to the accused.  However, omission on the part of the Court to  put
questions under Section 313 Cr.P.C. cannot  enure  to  the  benefit  of  the
accused.

35.         The conviction of  the  appellant  under  Section  302  IPC  and
Section 25 (IB) of the Arms Act by the trial  court  in  Sessions  Case  No.
40/2005 and the sentence imposed on him as affirmed by  the  High  Court  is
set aside.  The matter is remitted back to the trial  court  for  proceeding
with the matter afresh from the stage of recording statement of the  accused
under Section 313 Cr.P.C.    The  trial  court  shall  examine  the  accused
afresh under Section 313 Cr.P.C. in the light of the above observations  and
in accordance with  law.   The  trial  Judge  is  directed  to  marshal  the
evidence on record and put specific and separate questions  to  the  accused
with regard to  incriminating  evidence  and  circumstance  and  shall  also
afford an opportunity to the accused to examine the  defence  witnesses,  if
any, and proceed with the matter.   Since the  occurrence  is  of  the  year
2005, we direct the trial court to expedite the matter and  dispose  of  the
same in accordance with law preferably within a period of  six  months  from
the date of receipt of this  judgment.   Since  we  are  setting  aside  the
conviction imposed upon the appellant-accused, the appellant-accused  is  at
liberty to move for bail, if he is so advised.   On  such  bail  application
being moved by the appellant-accused, the trial  court  shall  consider  the
same in accordance with law.  We make it clear that we  have  not  expressed
any opinion on the merits of the matter.

36.           The appeal is disposed of as above.



                                                                 …………………….J.

      (T. S. Thakur)



                                                                 …………………….J.

      (R. Banumathi)
New Delhi,

November 11, 2014.




-----------------------
                                                                          28




No comments:

Post a Comment

Note: Only a member of this blog may post a comment.