2023 (5) TMI 1315 - SC - Indian Laws

Murder - the only allegation against the present appellant (accused no.2) is that while 6 other accused entered the house of PW 3, the appellant was standing near the gate of the gallery with katta (country made handgun) in his hand - HELD THAT - The only circumstance brought on record against the present appellant is in the evidence of PW 5, 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 PW 5 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 against him was put to him. 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 PW 5. As mentioned earlier, on reading 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. 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. The conviction of the appellant stands vitiated. In the facts of the case, the option of remand will be unjust - the conviction and sentence of the appellant set aside - appeal allowed.

Summary

Issues Involved:
1. Conviction under Section 302 read with Section 120-B of IPC.
2. Conviction under Section 307 read with Section 120-B of IPC.
3. Alleged failure to properly examine the accused under Section 313 of CrPC.

Summary:

Issue 1: Conviction under Section 302 read with Section 120-B of IPC
The appellant was convicted by the Sessions Court for the offences punishable under Section 302 read with Section 120-B of IPC and sentenced to life imprisonment. The High Court confirmed this conviction. The prosecution alleged that the appellant, along with others, conspired to murder Jawahar Lal (PW-3) and his relatives. The appellant was accused of standing near the gate of the gallery with a katta (country-made handgun) while the other accused entered PW-3's house and committed the crime.

Issue 2: Conviction under Section 307 read with Section 120-B of IPC
The appellant was also convicted for the offence punishable under Section 307 read with Section 120-B of IPC and sentenced to rigorous imprisonment for 7 years. The prosecution claimed that the appellant and others attempted to murder PW-3 and PW-7, causing serious injuries. However, the only evidence against the appellant was the testimony of PW-5, who stated that the appellant was standing outside with a katta.

Issue 3: Alleged failure to properly examine the accused under Section 313 of CrPC
The appellant's counsel argued that the only circumstance against the appellant, standing outside with a katta, was not put to him during his examination under Section 313 of CrPC, causing grave prejudice and a failure of justice. The High Court did not consider this argument, although it was raised in the written submissions. The Supreme Court noted that the failure to put material circumstances to the accused amounts to a serious irregularity that can vitiate the trial if it prejudices the accused. The Court found that the appellant was not given an opportunity to explain the only incriminating circumstance against him, which resulted in a failure of justice.

Our View:
The Supreme Court held that the High Court's reliance on the testimony of PW-13 was misplaced as PW-13 did not mention the appellant. The only evidence against the appellant was from PW-5, which was not put to the appellant during his Section 313 CrPC examination. The Court emphasized the importance of properly examining the accused under Section 313 to enable them to explain any circumstances against them. The Court cited several precedents, including Tara Singh v. State and Shivaji Sahabrao Bobade v. State of Maharashtra, to support the view that the failure to properly examine the accused can vitiate the trial if it causes prejudice.

Conclusion:
The Supreme Court concluded that the appellant's conviction was based on a single uncorroborated testimony that was not properly put to him for explanation, causing serious prejudice. Given the passage of 27 years since the incident and the appellant's incarceration for over 10 years, the Court found it unjust to remand the case for further examination. The Court set aside the appellant's conviction and sentence, directing his immediate release unless detained in connection with any other case. The Court also highlighted the need for judicial academies to address the issue of proper examination under Section 313 of CrPC.