RAJ KUMAR @ SUMAN versus STATE (NCT OF DELHI) on 11 May 2023

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SUPREME COURT REPORTS

[2023] 5 S.C.R.

RAJ KUMAR @ SUMAN

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v.

STATE (NCT OF DELHI)

(Criminal Appeal No. 1471 of 2023)

BMAY 11, 2023

[ABHAY S. OKA AND RAJESH BINDAL, JJ.]

Code of Criminal Procedure, 1973 – s.313 – Power to examinethe accused – Law summarized.

CCode of Criminal Procedure, 1973 – s.313 – Non-complianceof – Omission made while questioning the accused u/s.313, effectof – Appellant was convicted u/ss.302, 307 r/w 120-B, IPC andsentenced accordingly –Held: The only alleged incriminatingcircumstance against the appellant is in the evidence of PW5, whostated that the appellant was standing with a katta in his hand outsideDthe premises where the offence took place–However, this was notput to him in his statement u/s.313– Therefore, he had no opportunityto explain the said circumstance which was the only basis of hisconviction– Hence, serious prejudice was caused to him –Conviction of the appellant was vitiated – Impugned judgment ofEthe High Court set aside – Conviction and sentence of the appellantset aside.

Code of Criminal Procedure, 1973 – s.313(5)– Benefit of –Assistance of Prosecutor and Defence Counsel inpreparing relevant questions–Held: While recording the statementFu/s.313, in cases involving large number of prosecution witnesses,Judicial Officers advised to take benefit of s.313(5) which will ensurethat the chances of committing errors and omissions are minimized–However, scant attention is paid to this provision – The National andthe State Judicial Academies to take a note of this situation.

GAllowing the appeal, the Court

HELD: 1.1 The law consistently laid down by this Courtcan be summarized as: (i) It is the duty of the Trial Court to puteach material circumstance appearing in the evidence againstthe accused specifically, distinctively and separately. The materialcircumstance means the circumstance or the material on the basisH

of which the prosecution is seeking his conviction; (ii) The objectof examination of the accused under Section 313 is to enable theaccused to explain any circumstance appearing against him inthe evidence; (iii) The Court must ordinarily eschew materialcircumstances not put to the accused from consideration whiledealing with the case of the particular accused; (iv) The failure toput material circumstances to the accused amounts to a seriousirregularity. It will vitiate the trial if it is shown to have prejudicedthe accused; (v) If any irregularity in putting the materialcircumstance to the accused does not result in failure of justice,it becomes a curable defect. However, while deciding whetherthe defect can be cured, one of the considerations will be thepassage of time from the date of the incident; (vi) In case suchirregularity is curable, even the appellate court can question theaccused on the material circumstance which is not put to him;and (vii) In a given case, the case can be remanded to the TrialCourt from the stage of recording the supplementary statementof the concerned accused under Section 313 of CrPC. (viii) Whiledeciding the question whether prejudice has been caused to theaccused because of the omission, the delay in raising thecontention is only one of the several factors to be considered.[Para 16][767-D-G; 768-A-C]

Tara Singh v. State1951 SCC OnLine SC 49;ShivajiSahabrao Bobade & Anr. v. State of Maharashtra(1973) 2 SCC 793 : [1974] 1 SCR 489; S. HarnamSingh v. State (Delhi Admn.)(1976) 2 SCC 819; SamsulHaque v. State of Assam(2019) 18 SCC 161 – reliedon.

2.1 The only circumstance brought on record against thepresent appellant is in the evidence of PW5, who stated that theappellant was standing outside near the gate of the gallery with akatta in his hand. No overt act was attributed to him. There is along statement of the appellant under Section 313 of CrPC inwhich as many as 42 questions were put to the appellant. Questionno.13 is about what PW5 deposed. Admittedly, it was not put tothe appellant that it is brought on record that he was standingoutside near the gate of the gallery with a katta in his hand. It istrue that the answer given by him to every question is “I don’t ABC

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Aknow”. If all the circumstances put to the appellant in hisstatement under Section 313 CrPC are carefully perused, anyperson of ordinary intelligence will get the impression that noneof the prosecution witnesses has stated anything against him.That is why one cannot find fault with the appellant when he gavestandard answers to every question as nothing adverse againstBhim was put to him. In paragraph 13 of the written submissionsby the appellant before the High Court, a specific contention wasraised that the only circumstance appearing against the appellantwas not put to him in the statement under Section 313 of CrPC.It is not in dispute that this part of the argument is not consideredCby the High Court. The Trial Court has not reproduced thesubmissions made by the counsel appearing for the accused. [Para10][760-F-H; 761-A-B]

2.2 The only alleged incriminating circumstance appearingagainst the appellant in the evidence produced by the prosecutionDhas not been put to him in his statement under Section 313 ofCrPC and, therefore, he had no opportunity to explain the saidcircumstance. Moreover, his conviction is based only on thiscircumstance. [Para 11][761-C]

2.3 Only based on the version of PW5 regarding theEappellant’s presence with a weapon outside the premises wherethe offence took place, the involvement of the appellant has beenheld as proved. There is absolutely no other evidence againsthim. This is not a case where there are several incriminatingcircumstances appearing against the appellant in the evidenceadduced by the prosecution. This is a case where there is only aFsolitary circumstance appearing in the evidence against theappellant. The prosecution examined 37 witnesses. The materialagainst the appellant is in the form of one sentence in the evidenceof PW5. The appellant was not confronted during his examinationunder section 313 of CrPC with the only allegation of theGprosecution against him. A serious prejudice was caused to theappellant. The incident is of 1995. It is not clear whether thisaspect was argued before the Trial Court as the Trial Court hasnot reproduced the submissions of the counsel for the appellant.However, before the High Court, it was certainly canvassed as itforms a part of the written submissions. Even assuming that theH

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defect or irregularity was curable, the question is whether today,the appellant--accused can be called upon to explain the saidcircumstance. More than 27 years have passed since the date ofthe incident. Considering the passage of time, it will be unjustnow at this stage to remit the case to the Trial Court for recordingfurther statement of the appellant under Section 313 of CrPC. Inthe facts of the case, the appellant cannot be called upon to answersomething which has transpired 27 years back. The appellanthas already undergone incarceration for a period of 10 years and4 months. The conviction of the appellant stands vitiated. In thefacts of the case, the option of remand will be unjust. Theconviction and sentence of the appellant is set aside.Theimpugned judgment of the High Court is also set aside. [Paras18-20, 23][769-C-H; 770-A-B; 771-B]

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Vahitha v. State of Tamil Nadu2023 SCC OnLine SC174 – distinguished.

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Ranvir Yadav v. State of Bihar(2009) 6 SCC 595 :[2009] 7 SCR 653;Sukhjit Singh v. State of Punjab(2014) 10 SCC 270 : [2014] 10 SCR 608;MaheshwarTigga v. State of Jharkhand(2020) 10 SCC 108;Satyavir Singh Rathi, Assistant Commissioner of Police& Ors. v. State through Central Bureau of Investigation(2011) 6 SCC 1 : [2011] 6 SCR 138 – referred to.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1471 of 2023.

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From the Judgment and Order dated 01.11.2018 of the High Courtof Delhi at New Delhi in CRLA No.32 of 2004.

Sumeet Verma, Sumit Kumar, Mahinder Pratap Singh, VinayKumar, Advs. for the Appellant.

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Chirag M. Shroff, Adv. for the Respondent.

AThe Judgment of the Court was delivered by ABHAY S. OKA, J.

1. Leave granted.

FACTUAL ASPECTS

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2. Appellant (accused no.2) was convicted by the Sessions Courtby the Judgment dated 27[th] August 2003 for the offences punishableunder Section 302 read with Section 120-B of the Indian Penal Code(for short, ‘IPC’). For the offence under Section 302, the appellant wassentenced to undergo life imprisonment. He was also convicted for theCoffence punishable under Section 307 read with Section 120-B of IPC,for which he was sentenced to undergo rigorous imprisonment for 7years.

3. The allegation against this accused, along with one Vimal (sincedeceased) and five others, was that on 01[st] October 1995, around 03:30Dpm, they conspired to criminally intimidate and commit the murder ofJawahar Lal (PW-3) and his relatives. The allegation is that PW-3 wasrunning his own cable TV network, and the accused wanted him to stopthe said cable TV network. The allegation of the prosecution is that on01[st] October 1995 at about 03:30 pm, the accused entered the house ofPW-3 Jawahar Lal where he, along with his family members, wereEresiding. Accused nos.4 and 5 fired bullets from their revolvers at OmiDevi, mother of PW-3 and Chander Shekhar (deceased – brother ofPW-3). Accused no.3 and deceased Vimal attacked Chander Shekhar(deceased) and Omi with daggers and knives. PW-3 and PW-7 sufferedserious injuries. As noted earlier, Chander Shekhar died. We may noteFthat admittedly the only allegation against the present appellant (accusedno.2) is that while 6 other accused entered the house of PW-3, theappellant was standing near the gate of the gallery with katta (country-made handgun) in his hand. By the impugned judgment, the High Courthas confirmed the conviction of the appellant.

SUBMISSIONSG

4. The learned counsel appearing for the appellant pointed outthat only PW-5 Ved Prakash deposed that the appellant was standingnear the gate of the gallery with katta in his hand. However, PW-3, inthe cross-examination, accepted that he had not seen the present appellanton the day of the incident and his name was told to him by PW-5. LearnedH

counsel submitted that though the High Court, in paragraph 84 of theimpugned judgment, has recorded a finding that even PW-13 had seenthe appellant, in fact, PW-13 has not deposed anything about the appellant.

5. He submitted that the only circumstance appearing in theevidence against the appellant that he was standing outside near thegate of the gallery with a katta was not put to him in his statement underSection 313 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’).He submitted that this argument was specifically canvassed before theHigh Court, which finds a place in the written submissions filed on behalfof the appellants, but the High Court did not consider it. He relied upondecisions of this Court in the case of Ranvir Yadavv. State of Bihar[1];Sukhjit Singh v. State of Punjab[2]; Maheshwar Tigga v. State ofJharkhand[3]; and Samsul Haque v. State of Assam[4]. He submittedthat as a result of the failure of the Trial Court to put the only circumstanceappearing against the appellant during his examination under Section313 of CrPC, grave prejudice has been caused to the appellant resultingin failure of justice.

6. Learned counsel representing the respondent-State submittedthat the appellant did not cross-examine PW-5. He relied upon a decisionof this Court in the case of Satyavir Singh Rathi, AssistantCommissioner of Police & Ors. v. State through Central Bureau ofInvestigation[5]. He submitted that in this decision, this Court held thatthe objection regarding the omission or defect in recording the statementunder Section 313, CrPC must be raised at the earliest so that the defectcan be cured. He submitted that the said contention was raised 16 yearsafter the passing of the judgment by the Trial Court. He would, therefore,submit that, at this stage, this objection cannot be sustained. He submittedthat the very fact that the said objection was not raised at any timeearlier shows that there is no prejudice caused to the appellant due tothe failure of the Court to put the only circumstance against the appellantto him while recording his statement under Section 313, CrPC.

OUR VIEW

7. We have considered the submissions. There is no dispute thatthe only allegation against the appellant was that while six accused entered1 (2009) 6 SCC 5952 (2014) 10 SCC 2703 (2020) 10 SCC 1084 (2019) 18 SCC 161

5 (2011) 6 SCC 1.

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Athe house of PW-3, the appellant was standing outside with a katta inhis hand. In paragraph 84 of the impugned judgment, the High Court hasobserved that the evidence of PW-3, as regards the appellant, createssome doubt. However, it was held that the evidence of PW-5 and PW-13 is clear and consistent as regards his involvement. We have, therefore,perused the evidence of the said three prosecution witnesses. PW-3BJawahar Lal deposed about the entry of 6 other accused into his houseat about 03:30 pm on 01[st] October 1995. He did not depose that theappellant was standing outside with a katta in his hand. In furtherexamination-in-chief, he stated that in his statement recorded by thepolice, he has wrongly mentioned that the accused-Rajinder Kumar wasCguarding the spot. He stated that it was the appellant who was guardingthe spot. The High Court has expressed doubt about the version of PW-3 concerning the involvement of the present appellant. The reason givenby 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 toDimplicate the appellant.

8. We have carefully perused the evidence of PW-13. Thoughthe High Court has observed that PW-13 has ascribed a role to theappellant of standing outside with a katta in his hand, we find that PW-13 has made no such statement in his evidence.E

9. Thus, what remains is the evidence of PW-5. All that he statedin his examination-in-chief was that he saw Raj Kumar standing at thegate of the gallery with a katta in his hand. He identified the appellant inthe Court.F10. Hence, the only circumstance brought on record against thepresent appellant is in the evidence of PW-5, who stated that the appellantwas standing outside near the gate of the gallery with a katta in hishand. No overt act was attributed to him. There is a long statement ofthe appellant under Section 313 of CrPC in which as many as 42 questionswere put to the appellant. Question no.13 is about what PW-5 deposed.GAdmittedly, it was not put to the appellant that it is brought on record thathe was standing outside near the gate of the gallery with a katta in hishand. It is true that the answer given by him to every question is “I don’tknow”. If all the circumstances put to the appellant in his statementunder Section 313 CrPC are carefully perused, any person of ordinaryHintelligence will get the impression that none of the prosecution witnesses

has stated anything against him. That is why one cannot find fault withthe appellant when he gave standard answers to every question as nothingadverse against him was put to him. We may note here that in paragraph13 of the written submissions by the appellant before the High Court, aspecific contention was raised that the only circumstance appearingagainst the appellant was not put to him in the statement under Section313 of CrPC. It is not in dispute that this part of the argument is notconsidered by the High Court. We may also note that the Trial Court hasnot reproduced the submissions made by the learned counsel appearingfor the accused.

11. Thus, we will have to proceed on the footing that the onlyalleged incriminating circumstance appearing against the appellant inthe evidence produced by the prosecution has not been put to him in hisstatement under Section 313 of CrPC and, therefore, he had no opportunityto explain the said circumstance. Moreover, his conviction is based onlyon this circumstance.

12. Therefore, we will have to consider the effect of the aforesaidomission on the part of the Trial Court. The law on this aspect is nolonger res integra. Apart from the decisions relied upon by the learnedcounsel representing the parties, there are other important decisions onthis aspect. The first relevant judgment is of a Bench of four Hon’bleJudges of this Court in the case of Tara Singh v. State[6]. The Courtconsidered the provision of Section 342 of the Code of CriminalProcedure, 1898 (for short, ‘CrPC of 1898’). Section 313 of CrPC andSection 342 of CrPC of 1898 are in pari materia. In paragraph 18, thisCourt held thus :

“18. It is important therefore that an accused should be properlyexamined under Section 342 and, as their Lordships of the PrivyCouncil indicated in Dwarkanath Varmav. Emperor [Dwarkanath Varma v. Emperor, AIR 1933 PC 124 atp. 130 : 1933 SCC OnLine PC 11] , if a point in the evidence isconsidered important against the accused and the convictionis intended to be based upon it, then it is right and properthat the accused should be questioned about the matterand be given an opportunity of explaining it if he so desires.This is an important and salutary provision and I cannot AB

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permit it to be slurred over. I regret to find that in many casesscant attention is paid to it, particularly in the Sessions Courts.But whether the matter arises in the Sessions Court or in that ofthe Committing Magistrate, it is important that the provisions ofSection 342 should be fairly and faithfully observed.”

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Again in paragraph 23, this Court held thus:

“23. Section 342 requires the accused to be examined for thepurpose of enabling him “to explain any circumstances appearingin the evidence against him”. Now it is evident that when theSessions Court is required to make the examination under thissection, the evidence referred to is the evidence in the SessionsCourt and the circumstances which appear against the accusedin that court. It is not therefore enough to read over the questionsand answers put in the Committing Magistrate’s Court and askthe accused whether he has anything to say about them. In thepresent case, there was not even that. The appellant was notasked to explain the circumstances appearing in the evidenceagainst him but was asked whether the statements made beforethe Committing Magistrate and his answers given there werecorrectly recorded. That does not comply with the requirementsof the section.”

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The second important decision on this aspect is the decision of aBench of three Hon’ble Judges of this Court. This is a decision inthe case of Shivaji Sahabrao Bobade & Anr. v. State ofMaharashtra[7]. In paragraph 16 of the decision, this Courtexamined the issue of non-compliance with the requirements ofSection 342 of CrPC of 1898. Paragraph 16 reads thus:

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“16. The discovery of incriminating materials pursuant toconfessions made by the accused constitutes the third categoryof evidence. Obviously, the confessions are inadmissible butthe discoveries are, provided they are pertinent to the guilt ofthe accused. So far as Accused 2 is concerned, his statementresulted in the discovery of a knife (Vide Panchnama, Ext.13). Of course, knives were discovered long ago and not nowbut this knife lay buried and was recovered by the accused G

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from a pit in the corner of a wall of his house. There washuman blood on the blade of the knife, MO 5/1 according tothe chemical analyst’s report. The second accused’s clothesalso were picked up by him pursuant to his statement. He hadworn a shirt and pants on the day of occurrence and PW 13, aneighbour deposes that the second accused had come to himat about 6 p.m. on the Monday when Hariba died and hadmentioned to him that since his own house was locked he mightbe permitted to keep his clothes in the witnesses house.Thereafter he left his clothes under an empty khokha fromwhere he himself took them out when he later came in thecompany of the police. There are blood-stains on the clothesand it is found by the chemical examiner that the blood on thepants are of the same blood group as that of the deceased.When the second accused was asked under Section 342, CrPCabout the report of the chemical examiner noticing blood stainson the shirt, MO 5/2 and of human blood on the blade of theknife, MO 5/1, he merely answered, “I do not know”. He alsodescribed as false the fact of his recovering the clothes andthe knife. Bald denial notwithstanding, we are inclined to believe,with the learned Judges of the High Court, that the knife andthe shirt have been identified as his and since he had recoveredthem, thereby making the police discover the fact, there wasincriminating inference available against the said accused. Wemay notice here a serious omission committed by the trial Judgeand not noticed by either court. The pants allegedly worn atthe time of the attack by the second accused has stains ofblood relatable to the group of the deceased. This circumstancebinds him to the crime a little clear but it is unfortunate that nospecific question about this circumstance has been put to himby the Court. It is trite law, nevertheless fundamental,that the prisoner’s attention should be drawn to everyinculpatory material so as to enable him to explain it.This is the basic fairness of a criminal trial and failuresin this area may gravely imperil the validity of the trialitself, if consequential miscarriage of justice has flowed.However, where such an omission has occurred it doesnot ipso facto vitiate the proceedings and prejudiceoccasioned by such defect must be established by the AB

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accused.In the event of evidentiary material not beingput to the accused, the court must ordinarily eschew suchmaterial from consideration.It is also open to theappellate court to call upon the counsel for the accusedto show what explanation the accused has as regardsthe circumstances established against him but not putto him and if the accused is unable to offer the appellatecourt any plausible or reasonable explanation of suchcircumstances, the Court may assume that no acceptableanswer exists and that even if the accused had beenquestioned at the proper time in the trial court he wouldnot have been able to furnish any good ground to get outof the circumstances on which the trial court had reliedfor its conviction. In such a case, the Court proceeds on thefooting that though a grave irregularity has occurred as regardscompliance with Section 342, CrPC, the omission has not beenshown to have caused prejudice to the accused. In the presentcase, however, the High Court, though not the trial court hasrelied upon the presence of blood on the pants of the bloodgroup of the deceased. We have not been shown whatexplanation the accused could have offered to this chemicalfinding particularly when we remember that his answer to thequestion regarding the human blood on the blade of the knifewas “I do not know”. Counsel for the appellants could notmake out any intelligent explanation and the “blood” testimonytakes the crime closer to the accused. However, we are notinclined to rely over much on this evidentiary circumstance,although we should emphasise how this inadvertance of thetrial court had led to a relevant fact being argued as unavailableto the prosecution. Great care is expected of Sessions Judgeswho try grave cases to collect every incriminating circumstanceand put it to the accused even though at the end of a long trialthe Judge may be a little fagged out.”

13. Then we come to the decision of this Court in the case of S.Harnam Singh v. State (Delhi Admn.)[8]. In paragraph 22, this Courtheld thus :

“22. Section 342 of the Code of Criminal Procedure, 1898, castsa duty on the court to put, at any enquiry or trial, questions to theaccused for the purpose of enabling him to explain anycircumstances appearing in the evidence against him. It followsas a necessary corollary therefrom that each materialcircumstance appearing in evidence against the accused isrequired to be put to him specifically, distinctly andseparately. Failure to do so amounts to a serious irregularityvitiating the trial if it is shown to have prejudiced theaccused. If the irregularity does not, in fact, occasion a failureof justice, it is curable under Section 537, of the Code.”

14. Then we come to a decision in the case of Samsul Haque[4]relied upon by the learned counsel for the appellant. In paragraphs 21 to23, this Court held thus :

“21. The most vital aspect, in our view, and what drives the nailin the coffin in the case of the prosecution is the manner in whichthe court put the case to Accused 9, and the statement recordedunder Section 313 CrPC. To say the least it is perfunctory.

22. It is trite to say that, in view of the judgments referredto by the learned Senior Counsel, aforesaid, theincriminating material is to be put to the accused so thatthe accused gets a fair chance to defend himself. This is inrecognition of the principles of audi alteram partem. Apartfrom the judgments referred to aforesaid by the learned SeniorCounsel, we may usefully refer to the judgment of this Courtin Asraf Ali v. State of Assam [Asraf Ali v. State of Assam, (2008)16 SCC 328 : (2010) 4 SCC (Cri) 278] . The relevant observationsare in the following paragraphs : (SCC p. 334, paras 21-22)

“21. Section 313 of the Code casts a duty on the court to put inan enquiry or trial questions to the accused for the purpose ofenabling him to explain any of the circumstances appearing inthe evidence against him. It follows as necessary corollarytherefrom that each material circumstance appearing in theevidence against the accused is required to be put to himspecifically, distinctly and separately and failure to do so amounts AB

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to a serious irregularity vitiating trial, if it is shown that theaccused was prejudiced.

22. The object of Section 313 of the Code is to establisha direct dialogue between the Court and the accused. Ifa point in the evidence is important against the accused,and the conviction is intended to be based upon it, it isright and proper that the accused should be questionedabout the matter and be given an opportunity ofexplaining it. Where no specific question has been put by thetrial court on an inculpatory material in the prosecution evidence,it would vitiate the trial. Of course, all these are subject torider whether they have caused miscarriage of justice orprejudice. This Court also expressed a similar view in S.Harnam Singh v. State (Delhi Admn.) [S. HarnamSingh v. State (Delhi Admn.), (1976) 2 SCC 819 : 1976 SCC(Cri) 324] while dealing with Section 342 of the CriminalProcedure Code, 1898 (corresponding to Section 313 of theCode). Non-indication of inculpatory material in its relevantfacets by the trial court to the accused adds to the vulnerabilityof the prosecution case. Recording of a statement of theaccused under Section 313 is not a purposeless exercise.”

23. While making the aforesaid observations, this Court alsoreferred to its earlier judgment of the three-Judge Bench in ShivajiSahabrao Bobade v. State of Maharashtra [Shivaji SahabraoBobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC(Cri) 1033] , which considered the fallout of the omission to put tothe accused a question on a vital circumstance appearing againsthim in the prosecution evidence, and the requirement that theaccused’s attention should be drawn to every inculpatory materialso as to enable him to explain it. Ordinarily, in such a situation,such material as not put to the accused must be eschewed. Nodoubt, it is recognised, that where there is a perfunctoryexamination under Section 313 CrPC, the matter is capable ofbeing remitted to the trial court, with the direction to retry fromthe stage at which the prosecution was closed [Shivaji SahabraoBobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC(Cri) 1033].”

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15. Learned counsel for the respondent also relied upon a decisionof this Court in the case of Vahitha v. State of Tamil Nadu[9]. This casedoes not deal with the consequences of the omission made whilequestioning the accused under Section 313 of CrPC. This deals onlywith a contingency where evidence of the prosecution witnesses goesunchallenged. Now we come to the decision of this Court in the case ofSatyavir Singh[5] relied upon by the learned counsel for the respondent.The decision holds that the challenge to the conviction based on non-compliance with Section 313 of CrPC for the first time in the appealcannot be entertained unless the accused demonstrates that prejudicehas been caused to him. If an objection is raised at the earliest, thedefect can be cured by recording an additional statement of the concernedaccused. The sum and substance of the said decision is that such a longdelay can be a factor in deciding whether the trial is vitiated. Moreover,what is binding is the decision of the larger Bench in the case of ShivajiSahabrao Bobade[7,]which lays down that if there is prejudice caused tothe accused resulting in failure of justice, the trial will vitiate.

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16. The law consistently laid down by this Court can besummarized as under:

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16. The law consistently laid down by this Court can besummarized as under:

(i) It is the duty of the Trial Court to put each materialcircumstance appearing in the evidence against the accusedspecifically, distinctively and separately. The materialcircumstance means the circumstance or the material onthe basis of which the prosecution is seeking his conviction; E

(ii) The object of examination of the accused under Section313 is to enable the accused to explain any circumstanceappearing against him in the evidence; F

(iii) The Court must ordinarily eschew material circumstancesnot put to the accused from consideration while dealing withthe case of the particular accused;

(iv) The failure to put material circumstances to the accusedamounts to a serious irregularity. It will vitiate the trial if itGis shown to have prejudiced the accused;

(v) If any irregularity in putting the material circumstance tothe accused does not result in failure of justice, it becomes 9 2023 SCC OnLine SC 174.

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a curable defect. However, while deciding whether thedefect can be cured, one of the considerations will be thepassage of time from the date of the incident;

(vi) In case such irregularity is curable, even the appellate courtcan question the accused on the material circumstanceBwhich is not put to him; and

(vii) In a given case, the case can be remanded to the TrialCourt from the stage of recording the supplementarystatement of the concerned accused under Section 313 ofCrPC.

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(viii) While deciding the question whether prejudice has beencaused to the accused because of the omission, the delayin raising the contention is only one of the several factors tobe considered.

17. Now, we will have to apply the principles enunciated by thisDCourt to the facts of this case. The High Court has reproduced thecharge framed on 04[th] July 1998 against the accused, which reads thus:

“Charge

6. The charge framed against all the accused by the order dated4[th] July 1998 by the trial Court was as under :E

(i) That on or before 1[st] October 1995 at around 3.30 pm atDelhi A-1 to A-6 along with Vimal (since dead) agreed tocriminally intimidate and commit the murder of JawaharLal (PW-3) and his relatives on account of the failure ofPW-3 to stop his TV cable network in the area ofFPaschimpuri thereby committing the offence of criminalconspiracy punishable under Section 120B IPC.

(ii) That at House No.618/3, Paschimpuri on 1[st] October 1995,in pursuance of the aforementioned conspiracy, A-4 andA-5 fired bullets from their respective revolvers on Smt.GOmi Devi and Chander Shekhar whereas Vimal and A-3attacked Chander Shekhar and Omi with their respectivedagger and knife and committed their murders and thus allof them had committed an offence punishable under Section302 read with 120B IPC.

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(iii) All of them pursuant to the criminal conspiracyattempted to commit the murder of PW-3 by firingbullets from their revolvers on both PW-3 and PW-7due to which both of them received dangerous injuries andthereby all of them committed an offence punishable underSection 307 read with 120B IPC.’

18. In paragraph 7 of the High Court Judgment, it is noted that aseparate charge under Section 452 read with 120-B of IPC was framedagainst all accused except the present appellant. Thus, the charge asframed against the appellant was of being a party to criminal conspiracy.There is also a charge that all the accused fired bullets from their revolver.Only based on the version of PW-5 regarding the appellant’s presencewith a weapon outside the premises where the offence took place, theinvolvement of the appellant has been held as proved. There is absolutelyno other evidence against him. This is not a case where there are severalincriminating circumstances appearing against the appellant in theevidence adduced by the prosecution. This is a case where there is onlya solitary circumstance appearing in the evidence against the appellant.The prosecution examined 37 witnesses. The material against theappellant is in the form of one sentence in the evidence of PW-5. Asmentioned earlier, if we read 42 questions put to the appellant in hisstatement under Section 313 of CrPC, any accused having ordinaryintelligence will carry an impression that there is absolutely no materialagainst him. The appellant was not confronted during his examinationunder section 313 of CrPC with the only allegation of the prosecutionagainst him. This is how, on facts, we find that a serious prejudice wascaused to the appellant.

19. The incident is of 1995. It is not clear whether this aspect wasargued before the Trial Court as the Trial Court has not reproduced thesubmissions of the counsel for the appellant. However, before the HighCourt, it was certainly canvassed as it forms a part of the writtensubmissions.

20. Even assuming that the defect or irregularity was curable, thequestion is whether today, the appellant-accused can be called upon toexplain the said circumstance. More than 27 years have passed sincethe date of the incident. Considering the passage of time, we are of theview that it will be unjust now at this stage to remit the case to the Trial A

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ACourt for recording further statement of the appellant under Section 313of CrPC. In the facts of the case, the appellant cannot be called upon toanswer something which has transpired 27 years back. There is onemore aspect of the matter which persuaded us not to pass an order ofremand. The said factor is that the appellant has already undergoneincarceration for a period of 10 years and 4 months.B

21. Before we part with this judgment, we must take a note ofsub-section (5) added to Section 313 of CrPC w.e.f. 31[st] December2009. Sub-section (5) reads thus :

“313. Power to examine the accused.- (1) … … …C

(2) … … … …

(3) … … … …

(4) … … … …

(5) The Court may take help of Prosecutor and Defence CounselDin preparing relevant questions which are to be put to the accusedand the Court may permit filing of written statement by the accusedas 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 toEunderstand the importance of Section 313. But now the Court isempowered to take the help of the prosecutor and the defence counselin preparing relevant questions. Therefore, when the Trial Judge preparesquestions to be put to the accused under Section 313, before putting thequestions to the accused, the Judge can always provide copies of thesaid questions to the learned Public Prosecutor as well as the learnedFdefence Counsel and seek their assistance for ensuring that every relevantmaterial circumstance appearing against the accused is put to him. Whenthe Judge seeks the assistance of the prosecutor and the defence lawyer,the lawyers must act as the officers of the Court and not as mouthpiecesof their respective clients. While recording the statement under SectionG313 of CrPC in cases involving a large number of prosecution witnesses,the Judicial Officers will be well advised to take benefit of sub-section(5) of Section 313 of CrPC, which will ensure that the chances ofcommitting errors and omissions are minimized.

22. In 1951, while delivering the verdict in the case of Tara Singh[6],Hthis Court lamented that in many cases, scant attention is paid to the salutary provision of Section 342 of CrPC of 1898. We are sorry to notethat the situation continues to be the same after 72 years as we see suchdefaults in large number of cases. The National and the State JudicialAcademies must take a note of this situation. The Registry shall forwarda copy of this decision to the National and all the State Judicial Academies.

23. In the circumstances, we are of the view that the convictionof the appellant stands vitiated. In the facts of the case, the option ofremand will be unjust. Accordingly, we allow the appeal and set asidethe conviction and sentence of the appellant under the Judgment andOrder dated 27[th] August 2003 passed by the learned Additional SessionsJudge, Delhi, in Sessions Case No.9 of 2000. Consequently, the impugnedjudgment of the High Court is also set aside. We make it clear that bothjudgments are set aside only insofar as the appellant is concerned. We,accordingly, direct that the respondent shall forthwith set the appellantat liberty unless he is required to be detained in connection with anyother case.

Divya Pandey

Appeal allowed.

(Assisted by : Raoul Sawant and Shevali Monga, LCRAs)

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