Naresh Kumar vs The State Of Delhi

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.1751 of 2017

Naresh Kumar …Appellant

Versus

State of Delhi …Respondent

JUDGMENT

C.T. RAVIKUMAR, J.

1. Births of crimes and culprits concerned, occur

together. Yet, under the criminal justice delivery system

only on concluding findings on commission of the crime

concerned in the affirmative, the question whether the

accused is its culprit would arise. Culpability can be

fixed, if at all it is to be fixed, on the accused upon

conclusive proof of the same established by the Signature Not Verified Digitally signed by prosecution only after following various procedural VARSHA MENDIRATTA Date: 2024.07.08 15:23:21 IST Reason:

Crl. Appeal No.1751 of 2017 Page 1 of 32

safeguards recognizing certain rights of an accused.

Failure to comply with such mandatory procedures may

even vitiate the very trial, subject to the satisfaction of

conditions, therefor. Foremost among one such right is

embedded in Section 313 of the Code of Criminal

Procedure, 1973 (for short the ‘Cr.PC’). Though

questioning under clause (a) of sub-Section (1) of Section

313, Cr.PC, is discretionary, the questioning under

clause (b) thereof is mandatory. Needless to say, a fatal

non-compliance in the matter of questioning under

Clause (b) of sub-section (1) thereof, in case resulted in

material prejudice to any convict in a criminal case the

trial concerned, qua that convict should stand vitiated.

This prelude becomes necessary as in the captioned

appeal the main thrust of the argument advanced is

founded on fatal, non-compliance in the matter of

questioning under Section 313, Cr.PC, qua the appellant

who is a life convict. We will dilate on this a little later.

Crl. Appeal No.1751 of 2017 Page 2 of 32 2. The appellant, who was accused No.4 in Sessions

Case No.3/97 is challenging the confirmation of his

conviction under Section 302, IPC, with the aid of Section

34, IPC, under the impugned judgment in Criminal

Appeal No.540/2000 dated 20.12.2016 passed by the

High Court of Delhi. As per the prosecution, an argy-

bargy over spilling of drops of water over the roof of the

appellant’s house while Laxmi, the sister of the

deceased-Arun Kumar was cleaning the chajja (parapet)

of their house resulted in the accurst incident, where the

said Arun Kumar lost his life on 14.06.1995 at 08.45 pm.

The case of the prosecution is that enraged by the

dropping of water over the roof, the wife of the appellant,

namely, Meena, hurled filthy words at Laxmi. Then the

appellant came out and he, too, started abusing.

Thereupon, the deceased asked him to stop abusing his

sister and then the appellant exhorted his brother

Mahinder Kumar to come out and finish them. Soon,

Crl. Appeal No.1751 of 2017 Page 3 of 32 Mahinder came out with a knife and the appellant-

Naresh Kumar caught hold of Arun Kumar and Mahinder

stabbed on his chest repeatedly with the knife. The

necroscopic evidence in this case consists of the oral

testimony of PW-17, Dr. LK Baruah and the postmortem

report Ext.PW7/A, which disclosed that the deceased

had sustained the following antemortem injuries:

“1. Incised wound size 1.3 cm x 0.5 cm. On the left side front of chest. There is 1-1/2 medial to the left nipple placed abliquely.

2. Incised wound size .3 cm x 0.5 cm.x? on the middle of chest situated 1.5 cm. Right to the mid line and below a line drawn between two nipples.

3. Two incised wounds size 1.3 cm. And other 1.5 cm. In the right epigeastric region.

4. Incised wounds left side lower part of chest 9 cm. Below left nipple size 1.4 cm x 2.3 cm.

5. Abrasion on the dorsom left forearm and hand

6. Abrasion seen below left eye.”

Crl. Appeal No.1751 of 2017 Page 4 of 32

3. Taking note of the said necroscopic evidence

corroborating the events unfolded through the oral

testimonies of the eye-witnesses viz., Anil Kumar (PW-7),

Smt. Prem Devi (PW-8), Sanjay (PW-20), who are

respectively the brother, mother and one cousin of the

deceased and Smt. Madhu (PW-19) and Anand Kumar

(PW-22) besides the other evidences, the trial Court

found that the homicidal death of Arun Kumar amounts to

murder and culpability was fixed on Mahinder Kumar,

the first accused. We make it clear that we are not going

to make any observation in respect of Sri Mahinder

Kumar in this appeal and reference about him was made

solely for the purpose of disposing this appeal.

4. As noticed earlier, the conviction of the appellant

under Section 302, IPC, was then made with the aid of

Section 34, IPC, and upon which he was awarded

imprisonment for life. The conviction of the appellant

herein was confirmed under the impugned common

Crl. Appeal No.1751 of 2017 Page 5 of 32 judgment dated 20.12.2016 in Criminal Appeal

No.540/2000 (filed by the appellant herein), and

Criminal Appeal No.764/2000 (filed by Mahinder

Kumar).

5. Heard Sh. S.D. Singh, learned counsel appearing

for the appellant and Ms. Sonia Mathur, learned senior

counsel appearing for the respondent State.

6. As noticed earlier, the thrust of the argument for

the appellant was founded on prejudicial non-

compliance of Section 313, Cr.PC, during the

examination thereunder, qua the appellant. Before

going into its details, we think it appropriate to consider

whether the appellant is raising this contention for the

first time before this Court. In this context, it is to be

noted that there is nothing on record which would reveal

that specific contention in this regard was raised before

the High Court in the appeal. True, that in the appeal

Crl. Appeal No.1751 of 2017 Page 6 of 32 before the High Court a ground in this regard was raised

as ‘ground No.13’ as hereunder: -

“13. That has been no proper examination of the appellant u/s. 313 Cr.P.C. which has caused material prejudice to the appellant.”

7. There is nothing in the impugned judgment to

reveal that this point was argued with specific details

establishing prejudice, before the High Court. The

innumerable grounds (grounds A to Z and AA to GG)

raised in this appeal would reveal that neither directly

nor indirectly, this core contention was taken in any of

them. At any rate, no ground was raised to the effect that

despite raising this ground, the High Court had failed to

consider it. Be that as it may, the order dated 21.07.2017

of this Court would reveal that the learned counsel for the

appellant argued before this Court that while recording

the statement of the appellant under Section 313, Cr.PC,

no incriminating circumstances appearing in the

Crl. Appeal No.1751 of 2017 Page 7 of 32 prosecution evidence against him, were put to him and

that vitiated the whole trial. Obviously, thereupon notice

was issued in the Special Leave Petition from which this

appeal arose. Later, only in the first application for bail,

a contention on the following lines was taken and it was

reiterated in the second application for bail as well:

“7. That on completion of the evidence statement of accused under Section 313 Cr. PC have been recorded on 6.6.2000 and the mere perusal of the statement would show that no incriminating evidence which had been subsequently considered for the conviction of the appellant by the Ld. Trial Court as well as Hon’ble High Court had been put to the Appellant. Therefore, the entire trial against the Appellant is vitiated.”

8. During the course of the arguments by the learned

counsel for the appellant submitted that this contention

is based on non-questioning on two incriminating

circumstances appeared against the appellant in the

prosecution evidence viz., exhortation to do away with

their lives (aaj inko jaan se hi khatam karde) and the

Crl. Appeal No.1751 of 2017 Page 8 of 32 evidence that ‘the appellant had caught hold of the hands

of the deceased Arun Kumar to enable Mahinder Kumar

to stab him repeatedly with knife’ and they formed the

foundation for holding that the appellant had shared

common intention with the first accused and ultimately,

for holding the appellant guilty with the aid of Section 34,

IPC, for the offence under Section 300, IPC, punishable

under Section 302, IPC.

9. In view of the aforementioned core contentions, we

are of the considered view that we need to consider the

other grounds taken up in the appeal on the merits only

if the appellant could not succeed based on non-

examination under Section 313, Cr.PC, qua the

appellant. We may consider any other relevant aspect,

circumstance or evidence if we find that it is required for

a proper consideration and appreciation of the above-

mentioned core contention.

Crl. Appeal No.1751 of 2017 Page 9 of 32

10. We have taken note of the absence of materials to

show that the aforesaid core contention was

appropriately raised and argued before the High Court.

In the captioned appeal, it was not taken at all. In view

of the circumstances the contention is resurrected, we

are of the considered view that to entertain the same, it

is essential to have a short survey on the authorities on

the scope of maintaining such a contention at this stage

in the aforementioned circumstances. Subject to its

answer, we may also have to consider the question of

prejudice or miscarriage of justice due to the non-

compliance with mandate for questioning under Section

313, Cr.PC.

11. In the context of the issues thus involved, it is only

proper to look into the very object of Section 313, Cr.PC.

This aspect has been considered many a times by this

Court to hold that it embodies one salutary principle of

natural justice viz., audi alteram partem and empowering

Crl. Appeal No.1751 of 2017 Page 10 of 32 the Court to examine the accused thereunder is to give

the accused concerned an opportunity to explain the

incriminating circumstances appearing against him in

the prosecution evidence. In the decision in V.K.

Sasikala v. State1, this Court held that examination of an

accused under Section 313, Cr.PC, would not only

provide an opportunity to him to explain the

incriminating circumstances appearing in evidence

against him, but also would permit him to forward his

own version with regard to his alleged involvement in

the crime. Furthermore, it was held that such an

examination would have a fair nexus with a defence he

might choose to bring and, therefore, any failure in such

examination might take the effect of curtailing his right

in the event he took up a specific defence. The general

position is that if any incriminating circumstance,

appearing against an accused in the prosecution

1 (2012) 9 SCC 771

Crl. Appeal No.1751 of 2017 Page 11 of 32 evidence, is not put to him it should not be used against

him and must be excluded from consideration. At the

same time, we may hasten to add that it is a well-neigh

settled position that non-examination or inadequate

examination under Section 313, Cr.PC, on any

incriminating circumstance, by itself, would not vitiate a

trial qua the convict concerned unless it has resulted in

material prejudice to him or in miscarriage of justice. In

the decision in Suresh Chandra Bihari v. State of Bihar2

and in Wariyam Singh & Ors. v. State of U.P.3, this Court

held that mere defective/improper examination under

Section 313, Cr.PC, would be no ground to set aside a

conviction of the accused unless it has resulted in

prejudice to the accused. In view of the said position

which is being followed with alacrity we do not think it

necessary to multiply the authorities on it.

2 AIR 1994 SC 2420 3 AIR 1996 SC 305 Crl. Appeal No.1751 of 2017 Page 12 of 32

12. We have already noted that ‘ground No.13’ raised

in the appeal before the High Court was too vague, in the

sense without clarity whatsoever, as to what were the

incriminating circumstances that appeared in the

prosecution evidence not being put to the appellant

while being examined and what is the material prejudice

or miscarriage of justice caused consequent to such

failure. To make matters worse, a scanning of the

impugned judgment of the High Court would not

disclose whether before the High Court, the said

contention was pressed into service much-less whether

it was argued with precision on quintessential materials

to establish that the trial qua the appellant was vitiated.

In the contextual situation it is relevant to refer to the

decision of this Court in Amanullah v. State of U.P.4.

Normally, it has to be presumed that all the arguments

actually pressed at the hearing in the High Court were

4 AIR 1973 SC 1370

Crl. Appeal No.1751 of 2017 Page 13 of 32 noticed and appropriately dealt with and if the judgment

of the High Court does not contain discussion on a point,

then that point should be assumed prima facie not to have

been argued at the bar unless the contrary is specifically

shown, it was so, held in the said judgment. In the case

on hand though grounds A to Z and AA to GG were taken

in this appeal, there is absolute absence of any

contention in any one of them to the effect that despite

being pressed into the said contention was not taken into

consideration and appropriately dealt with by the High

Court. Hence, the conclusion can only be that it was not

argued.

13. This position takes us to the next question as to

whether in such circumstances the contention based on

non-examination/inadequate examination under Section

313, Cr.PC, causing material prejudice qua the appellant

can be maintained at this stage. In this context, it is only

appropriate to refer to the decision of this Court in Shobit

Crl. Appeal No.1751 of 2017 Page 14 of 32 Chamar & Anr. v. State of Bihar5. It was held therein that

where the plea as to non-compliance of the provisions of

Section 313, Cr.PC, was raised for the first time before

the Supreme Court, in case no prejudice had resulted to

the accused was proved, the trial could not be held as

vitiated. In that case, though the non-compliance was

taken for the first time before the Supreme Court, the

records showed that the relevant portion of the statement

of witnesses were put to the accused in examination

under Section 313, Cr.PC, and, thereupon, the plea was

rejected. It is to be noted that was also a case of murder.

14. In the light of the aforesaid question posed for

consideration, it is only appropriate to refer to the

relevant provisions under Section 313 (1), (4) and (5).

“313. Power to examine the accused. — (1) In every inquiry or trial, for the purpose of enabling the

5 AIR 1998 SC 1693

Crl. Appeal No.1751 of 2017 Page 15 of 32 accused personally to explain any circumstances appearing in the evidence against him, the Court—

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause

(b).

(2) … (3) … (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(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

Crl. Appeal No.1751 of 2017 Page 16 of 32 of written statement by the accused as sufficient compliance of this section.”

15. A bare perusal of the provisions under Section 313,

Cr.PC, extracted above, would undoubtedly reveal the

irrecusable obligation coupled with duty on Court

concerned to put the incriminating circumstances

appearing in the prosecution evidence against accused

concerned facing the trial providing him an opportunity

to explain. Sub-Section (5) of Section 313, Cr.PC, which

was inserted under Code of Criminal Procedure

(Amendment) Act, 2008 (Act 5 of 2009) with effect from

31.12.2009, would lend support to this view. It reads

thus: -

“Section 313. Power to examine the accused.

*** *** *** *** (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.”

Crl. Appeal No.1751 of 2017 Page 17 of 32

16. In this context, the maxim “actus curiae neminem

gravabit” – “the act of court shall prejudice no one”, has

also to be looked into. In the decision in Oil and Natural

Gas Company Limited v. Modern Construction and

Company6, this Court held that the court has to correct

the mistake it has done, rather than to ask the affected

party to seek his remedy elsewhere. In the context of the

decisions referred above, there can be no doubt that in

a charge for commission of a serious offence where

extreme penalty alone is imposable in case the accused

is found guilty, procedural safeguards ensuring

protection of right(s) of accused must be followed and at

any rate, in such cases when non-compliance of the

mandatory procedure capable of vitiating trial qua the

convict concerned is raised and revealed from records,

irrespective of the fact it was not raised appropriately, it

6 (2014) 1 SCC 648

Crl. Appeal No.1751 of 2017 Page 18 of 32 must be considered lest the byproduct of consideration

of the case would result in miscarriage of justice. Being

the Court existing for dispensation of justice, this Court

is bound to consider and correct the mistake committed

by the Court by looking into the question whether non-

examination or inadequate examination of accused

concerned caused material prejudice or miscarriage of

justice. We may hasten to add here, that we shall not be

understood to have held that always such a mistake has

to be corrected by this Court by examining the question

whether material prejudice or miscarriage of justice had

been caused. In this context, the summarization of law

on the subject of consequence of omission to make

questioning on incriminating circumstances appearing

in the prosecution evidence and the ways of curing the

same, if it is called for, by this Court in the decision in Raj

Crl. Appeal No.1751 of 2017 Page 19 of 32 Kumar @ Suman v. State (NCT of Delhi)7, assumes

relevance. Paragraph 16 of the said decision reads thus:-

“17. The law consistently laid down by this Court can be summarized as under:

(i) It is the duty of the Trial Court to put each material circumstance 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;

7 2023 SCC OnLine SC 609

Crl. Appeal No.1751 of 2017 Page 20 of 32

(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 Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC.

(viii) While deciding the question whether 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. In view of the circumstances obtained in this case,

factually and legally, it is also relevant to refer to

paragraph 20 of the decision in Raj Kumar’s case

(supra) and it reads thus:-

Crl. Appeal No.1751 of 2017 Page 21 of 32

“21. Even assuming that the defect or irregularity was curable, the question is whether today, the appellant-accused can be called upon to explain the said circumstance. More than 27 years have passed since the date of the incident. Considering the passage of time, we 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.”

18. In this case, the incident in question occurred on

14.06.1995 and thus, obviously, more than 29 years have

passed by. The appellant has already undergone

incarceration for a period of more than 12 years. In the

circumstances, we are inclined to proceed with the

consideration of the contentions bearing in mind the

Crl. Appeal No.1751 of 2017 Page 22 of 32 aforesaid authorities laying down the position of law on

various aspects of Section 313, Cr.PC.

19. In the case on hand, the appellant was convicted for

the offence under Section 300, IPC, punishable under

Section 302, IPC, with the aid of Section 34, IPC. In other

words, the conviction was not under Section 302, Cr.PC,

simpliciter. Upon finding guilty for commission of

murder only one of two extreme penalties viz., death or

imprisonment for life could be imposed on the convict.

When this be the consequence of finding an accused to

have committed murder or in any other serious offence

where extreme punishment of like nature alone is

imposable, the failure to comply with the mandatory

questioning on incriminating circumstance(s) appearing

in the prosecution case, if made out, the plea of non-

examination or inadequate examination under Section

313, Cr.PC, whether resulted in material prejudice to the

accused or total miscarriage of justice, shall not be

Crl. Appeal No.1751 of 2017 Page 23 of 32 ignored or declined to be taken into account by the

Court.

20. We have already noted that crucial incriminating

circumstances viz., (1) pertaining to the exhortation of

the appellant to kill Arun Kumar and others in his family

(2) he had caught hold of the deceased to enable

Mahinder Kumar to stab on his chest repeatedly, were

not allegedly put to the appellant while being examined

under Section 313, Cr.PC. The first among the twin

incriminating circumstances not to put to the appellant

was virtually the charge framed against him to the effect

that in furtherance of the common intention of Mohinder

Kumar and the appellant caught hold of deceased Arun

Kumar and the other accused Mohinder Kumar inflicted

knife blows on deceased Arun Kumar and murdered

him. The former incriminating circumstance relating to

exhortation by the appellant did not form part of the

charge against the appellant. There can be no doubt

Crl. Appeal No.1751 of 2017 Page 24 of 32 with respect to the position that the question whether the

aforementioned twin incriminating circumstances

appeared in the prosecution evidence and whether they

were put to the appellant while being examined under

Section 313, Cr.PC, to enable him an opportunity to offer

explanation are not matters of argument as a bare

perusal of the materials on record viz., the oral

testimonies of the eyewitnesses and Section 313, Cr.PC,

examination of the appellant would reveal the verity or

otherwise of the said contentions. The oral testimonies

of Anil Kumar (PW-7), Smt. Prem Devi (PW-8), Mrs.

Madhu (PW-19) and Anand Kumar (PW-22) would reveal

that they have deposed regarding the exhortation from

the appellant though in slightly different manner, and

also about the fact that he had caught hold of the

deceased to enable Mohinder Kumar to stab on the chest

of the deceased repeatedly. The examination of the

appellant under Section 313, Cr.PC, which is available

Crl. Appeal No.1751 of 2017 Page 25 of 32 on record, would reveal that both the incriminating

circumstances were not directly or even indirectly put to

the appellant while being examined under Section 313,

Cr.PC. The learned counsel appearing for the

respondent would fairly admit that the said material on

record would reveal the correctness of the contentions

of the appellant.

21. We have already held that whether non-

questioning or inadequate questioning on incriminating

circumstances to an accused by itself would not vitiate

the trial qua the accused concerned and to hold the trial

qua him is vitiated it is to be established further that it

resulted in material prejudice to the accused. True that

the onus to establish the prejudice or miscarriage on

account of non-questioning or inadequate questioning

on any incriminating circumstance(s), during the

examination under Section 313, Cr.PC, is on the convict

concerned. We say so, because if an accused is

Crl. Appeal No.1751 of 2017 Page 26 of 32 ultimately acquitted, he could not have a case that he was

prejudiced or miscarriage of justice had occurred owing

to such non-questioning or inadequate questioning.

22. In the light of the above view of the matter, we are

inclined to consider the further question whether the

non-questioning on the aforesaid twin incriminating

circumstances to the appellant during his examination

under Section 313, Cr.PC, had caused material prejudice

to him. The decision of this Court in State of Punjab v.

Swaran Singh8, constrain us to consider one another

factor while considering the question of prejudice. In

Swaran Singh’s case (supra), this Court held that where

the evidence of the witnesses is recorded in the

presence of the accused who had the opportunity to

cross examine them but did not cross examine them in

respect of facts deposed, then, omission to put question

to the accused regarding the evidence of such witnesses

8 (2005) 6 SCC 101

Crl. Appeal No.1751 of 2017 Page 27 of 32 would not cause prejudice to such an accused and,

therefore, could not be held as grounds vitiating the trial

qua the convict concerned. We have already found that

Anil Kumar (PW-7), Smt. Prem Devi (PW-8), Mrs. Madhu

(PW-19) and Anand Kumar (PW-22) have deposed about

the said circumstances. A scanning of their oral

testimonies, available on record, would undoubtedly

reveal that on both the points, on behalf of the appellants

they were cross examined.

23. The position, as above, would take us to the last

question whether material prejudice was caused to the

appellant on account of non-questioning him on the

aforesaid incriminating circumstances and thereby

depriving him an opportunity to explain. This question

can better be considered by referring to paragraph 31

of the judgment of the Trial Court, which virtually got

confirmance from the High Court under the impugned

judgment. It reads thus:-

Crl. Appeal No.1751 of 2017 Page 28 of 32

“31. As far the part played by accused Naresh is concerned, this has come in the evidence of PWs that he (Naresh) is the man, who called his brother Mahinder and exhorted “Mahender came out and kill them today” and thereafter his taking part in the incident, by catching hold of deceased Arun Kumar, clearly goes to show the common' intention of the two, i.e. Naresh and Mahinder and even the Learned Defence Counsel, cannot be benefited from the above noted authorities.”

24. It is evident from the afore-extracted paragraph

from the judgment of the Trial Court that the said

conclusion that appellant had shared the common

intention to commit murder of the deceased Arun Kumar

was based only on the aforesaid two incriminating

circumstances which were not put to the appellant while

being questioned under Section 313, Cr.PC. When the

very charge framed against him, as referred as above,

would reveal that there was no charge of commission of

an offence under Section 300, IPC, punishable under

Section 302, IPC, simplicitor against the appellant

Crl. Appeal No.1751 of 2017 Page 29 of 32 whereas the said charge thereunder with the aid of

Section 34, IPC. In such circumstances, when the finding

of common intention was based on the twin incriminating

circumstances and when they were not put to the

appellant while he was being questioned under Section

313, Cr.PC, and when they ultimately culminated in his

conviction under Section 302, IPC, with the aid of Section

34, IPC, and when he was awarded with the life

imprisonment consequently, it can only be held that the

appellant was materially prejudiced and it had resulted

in blatant miscarriage of justice. The failure as above is

not a curable defect and it is nothing but a patent

illegality vitiating the trial qua the appellant.

25. Once, the upshot of the discussion is above, we do

not think it proper to deal with the innumerable grounds

raised by the appellant, not only because it has become

unnecessary but also such consideration may adversely

affect the co-accused whose appeal was also decided

Crl. Appeal No.1751 of 2017 Page 30 of 32 under the very same common judgment impugned in

this appeal.

26. As noticed hereinbefore, the incident in question

occurred more than 29 years ago and the appellant had

already undergone incarceration more than 12 years. In

such circumstances, if he is again subjected to

examination under Section 313, Cr.PC, it would cause

further prejudice to him in view of the patent illegality

occurred qua the appellant. Hence, the conviction of the

appellant could not be sustained.

27. For the aforesaid reasons, the appeal must

succeed. Accordingly, the impugned judgment of the

trial Court and the High Court are set aside qua the

appellant. We make it clear that this judgment would not

disturb the conviction of the other accused. We also

make it clear that this observation shall not be taken as

confirmation of his conviction as it is a matter which may

be dealt with in an appeal, if any, filed by him. The

Crl. Appeal No.1751 of 2017 Page 31 of 32 appellant herein stands acquitted of the offences alleged

against him. If his detention is not required in connection

with any other case, he shall be released, forthwith.

28. The appeal is allowed on the above terms.

29. Pending application(s), if any, are disposed of.

……………………, J.

(C.T. Ravikumar)

……………………, J.

(Sandeep Mehta) New Delhi;

July 08, 2024

Crl. Appeal No.1751 of 2017 Page 32 of 32