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TMI Blog2023 (5) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W 7 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 PW 3, the appellant was standing near the gate of the gallery with katta (country made 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 pointed out that only PW 5 Ved Prakash deposed that the appellant was standing near the gate of the gallery with katta in his hand. However, PW 3, in the cross examination, accepted that he had not seen the present appellant on the day of the incident and his name was told to him by PW 5. Learned counsel submitted that though the High Court, in paragraph 84 of the impugned judgment, has recorded a finding that even PW 13 had seen the appellant, in fact, PW 13 has not deposed anything about the appellant. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 examination in chief, 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 has expressed doubt about the version of PW 3 concerning the involvement of the present appellant. The reason given by the High Court is that PW 3 also stated that on the day of the incident, he did not see the appellant, but his name was told to him by PW 5 Ved Prakash. Therefore, the testimony of PW 3 cannot be relied upon to implicate the appellant. 8. We have carefully perused the evidence of PW 13. Though the High Court has observed that PW 13 has ascribed a role to the appellant of standing outside with a katta in his hand, we find that PW 13 has made no such statement in his evidence. 9. Thus, what remains is the evidence of PW 5. All that he stated in his examination in chief was that he saw Raj Kumar standing at the gate of the gallery with a katta in his hand. He identified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 Dwarkanath Varma v. Emperor [Dwarkanath Varma v. Emperor, AIR 1933 PC 124 at p. 130 : 1933 SCC OnLine PC 11] , if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and I cannot permit it to be slurred over. I regret to find that in many cases scant attention is paid to it, particularly in the Sessions Courts. But whether the matter arises in the Sessions Court or in that of the Committing Magistrate, it is important that the provisions of Section 342 should be fairly and faithfully observed. (emphasis added) Again in paragraph 23, this Court held thus: 23. Section 342 requires the accused to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blood stains 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 blade of the knife, MO 5/1, he merely answered, I do not know . He also described as false the fact of his recovering the clothes and the knife. Bald denial notwithstanding, we are inclined to believe, with the learned Judges of the High Court, that the knife and the shirt have been identified as his and since he had recovered them, thereby making the police discover the fact, there was incriminating inference available against the said accused. We may notice here a serious omission committed by the trial Judge and not noticed by either court. The pants allegedly worn at the time of the attack by the second accused has stains of blood relatable to the group of the deceased. This circumstance binds him to the crime a little clear but it is unfortunate that no specific question about this circumstance has been put to him by the Court. It is trite law, nevertheless fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 purpose of enabling him to explain any circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact, occasion a failure of justice, it is curable under Section 537, of the Code. (emphasis added) 14. Then we come to a decision in the case of Samsul Haque relied upon by the learned counsel for the appellant. In paragraphs 21 to 23, this Court held thus : 21. The most vital aspect, in our view, and what drives the nail in the coffin in the case of the prosecution is the manner in which the court put the case to Accused 9, and the statement recorded under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree Judge 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 against him in the prosecution evidence, and the requirement that the accused's attention should be drawn to every inculpatory material so as to enable him to explain it. Ordinarily, in such a situation, such material as not put to the accused must be eschewed. No doubt, it is recognised, that where there is a perfunctory examination under Section 313 CrPC, the matter is capable of being remitted to the trial court, with the direction to retry from the stage at which the prosecution was closed [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033]. (emphasis added) 15. Learned counsel for the respondent also relied upon a decision of this Court in the case of Vahitha v. State of Tamil Nadu [2023 SCC OnLine SC 174] This case does not deal with the consequences of the omission made while questioning the accused under Section 313 of CrPC. This deals only with a contingency where e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 facts of this case. The High Court has reproduced the charge framed on 04th July 1998 against the accused, which reads thus : Charge 6. The charge framed against all the accused by the order dated 4th July 1998 by the trial Court was as under : (i) That on or before 1st October 1995 at around 3.30 pm at Delhi A 1 to A 6 along with Vimal (since dead) agreed to criminally intimidate and commit the murder of Jawahar Lal (PW 3) and his relatives on account of the failure of PW 3 to stop his TV cable network in the area of Paschimpuri thereby committing the offence of criminal conspiracy punishable under Section 120B IPC. (ii) That at House No.618/3, Paschimpuri on 1st October 1995, in pursuance of the aforementioned conspiracy, A 4 and A 5 fired bullets from their respective revolvers on Smt. Omi Devi and Chander Shekhar whereas Vimal and A 3 attacked Chander Shekhar and Omi with their respective dagger and knife and committed their murders and thus al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of CrPC. In the facts of the case, the appellant cannot be called upon to answer something which has transpired 27 years back. There is one more aspect of the matter which persuaded us not to pass an order of remand. The said factor is that the appellant has already undergone incarceration for a period of 10 years and 4 months. 21. Before we part with this judgment, we must take a note of sub section (5) added to Section 313 of CrPC w.e.f. 31st December 2009. Sub section (5) reads thus : 313. Power to examine the accused. (1) (2) (3) (4) (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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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