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2014 (11) TMI 1271 - SC - Indian LawsNon-compliance of Section 313 Code of Criminal Procedure - 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 Code of Criminal Procedure, it must be completely excluded from consideration and barring the same - whether non-compliance of the mandatory provisions of Section 313 Code of Criminal Procedure vitiates the trial and conviction of the Appellant? - HELD THAT - There are two kinds of examination Under Section 313 Code of Criminal Procedure. The first Under Section 313(1)(a) Code of Criminal Procedure relates to any stage of the inquiry or trial; while the second Under Section 313(1)(b) Code of Criminal Procedure 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. The object of Section 313(1)(b) Code of Criminal Procedure 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 real importance of Section 313 Code of Criminal Procedure 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. Undoubtedly, the importance of a statement Under Section 313 Code of Criminal Procedure, 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 Code of Criminal Procedure 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 - 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 Code of Criminal Procedure, 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. This Court has 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. If all relevant questions were not put to accused by the trial court as mandated Under Section 313 Code of Criminal Procedure 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 Code of Criminal Procedure Section 386 Code of Criminal Procedure deals with power of the appellate court? - HELD THAT - As per Sub-clause (b)(i) of Section 386 Code of Criminal Procedure, 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 Code of Criminal Procedure and may direct remanding the case again for re-trial of the case from that stage of recording of statement Under Section 313 Code of Criminal Procedure and the same cannot be said to be amounting to filling up lacuna in the prosecution case. In ASRAF ALI VERSUS STATE OF ASSAM 2008 (7) TMI 1081 - SUPREME COURT , this Court has examined the scope and object of examination of accused Under Section 313 Code of Criminal Procedure 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. In GANESHMAL JASHRAJ VERSUS GOVERNMENT OF GUJARAT AND ORS. 1979 (10) TMI 232 - SUPREME COURT , after closure of evidence of the prosecution and examination of accused Under Section 313 Code of Criminal Procedure 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 Code of Criminal Procedure. The objection as to the defective 313 Code of Criminal Procedure statement has not been raised in the trial court or in the High Court and the omission to put the question Under Section 313 Code of Criminal Procedure, 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. The accused is not entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Code of Criminal Procedure 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 Code of Criminal Procedure cannot enure to the benefit of the accused. 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 Code of Criminal Procedure The trial court shall examine the accused afresh Under Section 313 Code of Criminal Procedure - appeal disposed off.
Issues Involved
1. Conviction under Section 302 of the Indian Penal Code (IPC) and Section 25(1B) of the Arms Act. 2. Non-compliance with Section 313 of the Code of Criminal Procedure (CrPC). Issue-wise Detailed Analysis Conviction under Section 302 IPC and Section 25(1B) of the Arms Act The prosecution's case was based on circumstantial evidence. The key circumstances relied upon were: - Motive: Evidence from PW-8, the mother of the deceased, indicated a long-standing grudge due to an incident 18 years ago involving the death of the accused's father, which the accused's family blamed on the deceased. - Eyewitness Testimony: PW-11 testified seeing the accused running in the street and hearing a gunshot at the time of the incident. - Recovery of Weapon: Based on the accused's disclosure, a country-made pistol was recovered from his house. - Forensic Evidence: The post-mortem report (Ex P-13) and the Ballistic Expert's opinion (Ex P-12) confirmed that the bullet recovered from the deceased's brain was fired from the recovered pistol. Both the trial court and the High Court found these circumstances formed a complete chain establishing the guilt of the accused, leading to his conviction. Non-compliance with Section 313 CrPC The main contention of the appellant was that the incriminating evidence, particularly the Ballistic Expert's report (Ex P-12), was not put to him during his examination under Section 313 CrPC. This section mandates that the accused must be given an opportunity to explain any circumstances appearing in the evidence against him. The appellant argued that this non-compliance vitiated the trial and conviction. The court examined the object and importance of Section 313 CrPC, emphasizing that it is a procedural safeguard for the accused, ensuring they are aware of and can respond to the evidence against them. The court noted that non-compliance with this section does not automatically vitiate the trial unless it is shown that the omission caused material prejudice to the accused. Judicial Precedents and Legal Principles The court referred to several precedents, including: - Basava R. Patil v. State of Karnataka: Highlighted that the purpose of Section 313 is to benefit the accused and ensure a fair trial. - Santosh Kumar Singh v. State through CBI: Held that omission to put incriminating circumstances to the accused does not ipso facto vitiate the trial unless prejudice is shown. - State of Punjab v. Hari Singh: Affirmed that failure to put vital evidence to the accused can lead to acquittal if it causes prejudice. Remand for Re-trial The court concluded that the omission to put the Ballistic Expert's report to the accused caused prejudice. However, rather than acquitting the accused, the court decided to set aside the conviction and remand the case back to the trial court for fresh proceedings from the stage of recording the accused's statement under Section 313 CrPC. The trial court was directed to expedite the matter and dispose of it within six months. Conclusion The appeal was disposed of with the conviction set aside and the case remanded for re-trial from the stage of Section 313 CrPC examination. The accused was given the liberty to apply for bail, which the trial court was directed to consider in accordance with the law. The court made it clear that it expressed no opinion on the merits of the case.
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