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TMI Blog2024 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant with the offence. The incident is of May, 2001, and therefore, it will be unjust to subject the appellant to further examination under Section 313 of Cr.P.C. at this stage, nearly twenty-two and half years from the date of the alleged recovery of the contraband. As the only material circumstances pleaded by the prosecution against the appellant were not put to him, a serious prejudice has been caused to the appellant s defence. The appellant has undergone incarceration of five and a half years. If, after the lapse of more than twenty-two years, he is again subjected to examination under Section 313 of Cr.P.C., it will cause prejudice to him. Therefore, the failure to put two relevant circumstances to the appellant in his examination under Section 313 Cr.P.C. will be fatal to the prosecution case. Hence, on this ground, the appellant s conviction cannot be sustained. The impugned judgments of the Trial Court and High Court are set aside only insofar as the present appellant is concerned - Appeal allowed. - ABHAY S. OKA AND PANKAJ MITHAL, JJ. Shri Rishi Malhotra, AOR, for the Appellant. Dr. Monika Gusain, AOR, for the Respondent. JUDGMENT Factual aspects : The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 was arrested at railway station Ambala Cantt. It is alleged that accused No. 1 had got the parcel booked. The prosecution examined 10 witnesses. The Special Court recorded a finding that though the contraband was recovered during transit, the persons possessing railway receipt of the parcels shall be deemed to have control over the contraband and, thus, in conscious possession thereof. The High Court has confirmed the conviction. Submissions 3. The submission of the Learned Counsel appearing for the appellant is that he is a rickshaw puller like the accused No. 2. According to the appellant, accused No. 2 had gone to enquire about the arrival of parcels on behalf of the owner to the railway station, and when he failed to return, the appellant went to the railway station to enquire about him. His submission is that even the railway receipt of the parcels was not produced by the appellant but by the accused No. 2. He submitted that the case made out by the prosecution that the railway receipt stood in the name of the appellant had not been put to the appellant in his examination under Section 313 of the Code of Criminal Procedure, 1973 (for short, CrPC ). He submitted that even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yu); and (b) He, along with the accused No. 2, enquired about the parcels containing contraband. The finding of the Courts is that as the railway receipt was in the name of the appellant, he shall be deemed to be in the custody of the contraband. 6. The material prosecution witnesses did not depose that the appellant produced the railway receipt. On the contrary, the said witnesses consistently say that accused No. 2 came to the railway station with the railway receipt. 7. In his examination under Section 313 of Cr.P.C., the appellant came out with the following explanation : I never got booked any parcel through railways. I have got nothing to do with any parcels. No RR or bilty was ever recovered from me. In fact Rahish being rickshaw puller had gone to enquire about the arrival of luggage on behalf of the owner. On his failure to return after 15 minutes I had gone to verify about Rahish, I also being rickshaw puller. Thereafter, I was also made to sit by the police and implicated falsely in the present case and on seeing us apprehended owner fled from the spot. I am poor and is meeting two times meals with great difficulty. 8. We have carefully perused the examination of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction; (ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence; (iii) The Court must ordinarily eschew 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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