TaxTMI 
TaxTMI 
2023 (5) TMI 1315
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....5, 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 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 poi....
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.... 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 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 accused Rajinder Kumar was guarding the spot. He stated that it was the appellant who was guarding the spot. The High Court....
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....1. 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. 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. State [1951 SCC OnLine SC 49] 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 Dwarkan....
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....tement resulted in the discovery of a knife (Vide Panchnama, Ext. 13). Of 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 blad....
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....lood 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 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.) [(1976) 2 SCC 819] 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 pu....
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....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 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 aga....
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....ew 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. 17. Now, we will have to apply the principles enunciated by this Court to the fa....
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....vidence 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. 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 ....