Raj Kumar @ Suman vs State (Nct Of Delhi)

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1471 of 2023 [Arising out of S.L.P.(Crl.)No.11256 of 2018]

Raj Kumar @ Suman …..Appellant

Versus

State (NCT of Delhi) …..Respondent

JUDGMENT

Abhay S. Oka, J.

1. Leave granted.

FACTUAL ASPECTS

2. Appellant (accused no.2) was convicted by

the Sessions Court by the Judgment dated 27th

Signature Not Verified August 2003 for the offences punishable under Digitally signed by Anita Malhotra Date: 2023.05.11 17:19:34 IST Reason: Section 302 read with Section 120­B of the Indian

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 1 of 33 Penal Code (for short, ‘IPC’). For the offence under

Section 302, the appellant was sentenced to

undergo life imprisonment. He was also convicted

for the offence punishable under Section 307 read

with Section 120­B of IPC, for which he was

sentenced to undergo rigorous imprisonment for 7

years.

3. The allegation against this accused, along

with one Vimal (since deceased) and five others,

was that on 01st October 1995, around 03:30 pm,

they conspired to criminally intimidate and commit

the murder of Jawahar Lal (PW­3) and his relatives.

The allegation is that PW­3 was running his own

cable TV network, and the accused wanted him to

stop the said cable TV network. The allegation of

the prosecution is that on 01st October 1995 at

about 03:30 pm, the accused entered the house of

PW­3 Jawahar Lal where he, along with his family

members, were residing. Accused nos.4 and 5 fired

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 2 of 33 bullets from their revolvers at Omi Devi, mother of

PW­3 and Chander Shekhar (deceased – brother of

PW­3). Accused no.3 and deceased Vimal attacked

Chander Shekhar (deceased) and Omi with daggers

and knives. PW­3 and PW­7 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 PW­3,

the appellant was standing near the gate of the

gallery with katta (country­made 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 PW­5 Ved Prakash

deposed that the appellant was standing near the

gate of the gallery with katta in his hand. However,

PW­3, in the cross­examination, accepted that he

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 3 of 33 had not seen the present appellant on the day of

the incident and his name was told to him by PW­5.

Learned counsel submitted that though the High

Court, in paragraph 84 of the impugned judgment,

has recorded a finding that even PW­13 had seen

the appellant, in fact, PW­13 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 of the Code of Criminal

Procedure, 1973 (for short, ‘CrPC’). He submitted

that this argument was specifically canvassed

before the High Court, which finds a place in the

written submissions filed on behalf of the

appellants, but the High Court did not consider it.

He relied upon decisions of this Court in the case of

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 4 of 33 Ranvir Yadav v. State of Bihar1; Sukhjit Singh

v. State of Punjab2; Maheshwar Tigga v. State

of Jharkhand3; and Samsul Haque v. State of

Assam4. He submitted that as a result of the

failure of the Trial Court to put the only

circumstance appearing against the appellant

during his examination under Section 313 of CrPC,

grave prejudice has been caused to the appellant

resulting in failure of justice.

6. Learned counsel representing the

respondent­State submitted that the appellant did

not cross­examine PW­5. He relied upon a decision

of this Court in the case of Satyavir Singh Rathi,

Assistant Commissioner of Police & Ors. v.

State through Central Bureau of Investigation 5.

He submitted that in this decision, this Court held

1 (2009) 6 SCC 595 2 (2014) 10 SCC 270 3 (2020) 10 SCC 108 4 (2019) 18 SCC 161 5 (2011) 6 SCC 1.

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 5 of 33 that the objection regarding the omission or defect

in recording the statement under Section 313, CrPC

must be raised at the earliest so that the defect can

be cured. He submitted that the said contention

was raised 16 years after the passing of the

judgment by the Trial Court. He would, therefore,

submit that, at this stage, this objection cannot be

sustained. He submitted that the very fact that the

said objection was not raised at any time earlier

shows that there is no prejudice caused to the

appellant due to the failure of the Court to put the

only circumstance against the appellant to him

while recording his statement under Section 313,

CrPC.

OUR VIEW

7. We have considered the submissions. There

is no dispute that the only allegation against the

appellant was that while six accused entered the

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 6 of 33 house of PW­3, the appellant was standing outside

with a katta in his hand. In paragraph 84 of the

impugned judgment, the High Court has observed

that the evidence of PW­3, as regards the appellant,

creates some doubt. However, it was held that the

evidence of PW­5 and PW­13 is clear and consistent

as regards his involvement. We have, therefore,

perused the evidence of the said three prosecution

witnesses. PW­3 Jawahar Lal deposed about the

entry 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 examination­in­chief,

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 PW­3 concerning the involvement of

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 7 of 33 the present appellant. The reason given by the

High Court is that PW­3 also stated that on the day

of the incident, he did not see the appellant, but his

name was told to him by PW­5 Ved Prakash.

Therefore, the testimony of PW­3 cannot be relied

upon to implicate the appellant.

8. We have carefully perused the evidence of

PW­13. Though the High Court has observed that

PW­13 has ascribed a role to the appellant of

standing outside with a katta in his hand, we find

that PW­13 has made no such statement in his

evidence.

9. Thus, what remains is the evidence of PW­5.

All that he stated in his examination­in­chief was

that he saw Raj Kumar standing at the gate of the

gallery with a katta in his hand. He identified the

appellant in the Court.

10. Hence, the only circumstance brought on

record against the present appellant is in the

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 8 of 33 evidence of PW­5, 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 PW­5 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

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 9 of 33 against him was put to him. We may note here that

in paragraph 13 of the written submissions by the

appellant before the High Court, a specific

contention was raised that the only circumstance

appearing against the appellant was 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

considered by the High Court. We may also note

that the Trial Court has not reproduced the

submissions made by the learned counsel

appearing for the accused.

11. Thus, we will have to proceed on the footing

that the only alleged incriminating circumstance

appearing against the appellant in the evidence

produced by the prosecution has not been put to

him in his statement under Section 313 of CrPC

and, therefore, he had no opportunity to explain the

said circumstance. Moreover, his conviction is

based only on this circumstance.

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 10 of 33

12. Therefore, we will have to consider the effect

of the aforesaid omission on the part of the Trial

Court. The law on this aspect is no longer res

integra. Apart from the decisions relied upon by

the learned counsel representing the parties, there

are other important decisions on this aspect. The

first relevant judgment is of a Bench of four Hon’ble

Judges of this Court in the case of Tara Singh v.

State6. The Court considered the provision of

Section 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

6 1951 SCC OnLine SC 49

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 11 of 33 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 be examined for the purpose of enabling him “to explain any circumstances appearing in the evidence against him”. Now it is evident that when the Sessions Court is required to make the examination under this section, the evidence referred to is the evidence in the Sessions Court and the circumstances which appear against the accused in that court. It is not therefore enough to read over the questions and answers put in the Committing Magistrate's Court and ask the accused whether he has anything to say about

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 12 of 33 them. In the present case, there was not even that. The appellant was not asked to explain the circumstances appearing in the evidence against him but was asked whether the statements made before the Committing Magistrate and his answers given there were correctly recorded. That does not comply with the requirements of the section.”

The second important decision on this aspect is the

decision of a Bench of three Hon’ble Judges of this

Court. This is a decision in the case of Shivaji

Sahabrao Bobade & Anr. v. State of

Maharashtra7. In paragraph 16 of the decision,

this Court examined the issue of non­compliance

with the requirements of Section 342 of CrPC of

1898. Paragraph 16 reads thus:

“16. The discovery of incriminating materials pursuant to confessions made by the accused constitutes the third category of evidence. Obviously, the confessions are inadmissible but the discoveries are, provided they are pertinent to the guilt of the accused. So far as Accused 2 is concerned, his statement resulted in the discovery of a knife (Vide Panchnama, Ext. 13). Of 7 (1973) 2 SCC 793

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 13 of 33 course, knives were discovered long ago and not now but this knife lay buried and was recovered by the accused from a pit in the corner of a wall of his house.

There was human blood on the blade of the knife, MO 5/1 according to the chemical analyst's report. The second accused's clothes also were picked up by him pursuant to his statement. He had worn a shirt and pants on the day of occurrence and PW 13, a neighbour deposes that the second accused had come to him at about 6 p.m. on the Monday when Hariba died and had mentioned to him that since his own house was locked he might be permitted to keep his clothes in the witnesses house. Thereafter he left his clothes under an empty khokha from where he himself took them out when he later came in the company of the police. There are blood­stains 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

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 14 of 33 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 fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 15 of 33 established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, CrPC, the omission has not been shown to have caused prejudice to the accused. In the present case, however, the High Court, though not the trial court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was “I do not know”. Counsel for the appellants could not make out any intelligent explanation and the “blood” testimony takes the crime closer to the accused. However, we are not inclined to rely over much on this evidentiary circumstance, although we should emphasise how this inadvertance of the trial court had led to

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 16 of 33 a relevant fact being argued as unavailable to the prosecution. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out.”

(emphasis added)

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 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.”

8 (1976) 2 SCC 819

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 17 of 33 (emphasis added)

14. Then we come to a decision in the case of

Samsul Haque4 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 Section 313 CrPC. To say the least it is perfunctory.

22. It is trite to say that, in view of the judgments referred to by the learned Senior Counsel, aforesaid, the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. Apart from the judgments referred to aforesaid by the learned Senior Counsel, we may usefully refer to the judgment of this Court in Asraf Ali v. State of Assam [Asraf Ali v. State of Assam, (2008) 16 SCC 328 : (2010) 4 SCC (Cri) 278] . The relevant

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 18 of 33 observations are in the following paragraphs : (SCC p. 334, paras 21­22)

“21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it.

Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 19 of 33 vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) [S. Harnam Singh v. State (Delhi Admn.), (1976) 2 SCC 819 :

1976 SCC (Cri) 324] while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non­indication of inculpatory material in its relevant facets by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.”

23. While making the aforesaid observations, this Court also referred to its earlier judgment of the three­Judge 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

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 20 of 33 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 Nadu9. 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 evidence of the prosecution witnesses goes

unchallenged. Now we come to the decision of this

Court in the case of Satyavir Singh5 relied upon

by the learned counsel for the respondent. The

9 2023 SCC OnLine SC 174.

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 21 of 33 decision holds that the challenge to the conviction

based on non­compliance with Section 313 of CrPC

for the first time in the appeal cannot be

entertained unless the accused demonstrates that

prejudice has been caused to him. If an objection

is raised at the earliest, the defect can be cured by

recording an additional statement of the concerned

accused. The sum and substance of the said

decision is that such a long delay 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 Shivaji Sahabrao Bobade7, which

lays down that if there is prejudice caused to the

accused resulting in failure of justice, the trial will

vitiate.

16. 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

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 22 of 33 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

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 23 of 33 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 Trial Court from the

stage of recording the supplementary

statement of the concerned accused

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 24 of 33 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. 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 1 st October 1995 at around 3.30 pm at Delhi A­1 to A­6 along with Vimal (since dead) agreed to criminally intimidate and commit the murder of Jawahar Lal (PW­3) and his relatives on account of the failure of PW­3 to stop his TV cable network in the area of

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 25 of 33 Paschimpuri thereby committing the offence of criminal conspiracy punishable under Section 120B IPC.

(ii) That at House No.618/3, Paschimpuri on 1 October 1995, st

in pursuance of the

aforementioned conspiracy, A­4 and A­5 fired bullets from their respective revolvers on Smt. Omi Devi and Chander Shekhar whereas Vimal and A­3 attacked Chander Shekhar and Omi with their respective dagger and knife and committed their murders and thus all of them had committed an offence punishable under Section 302 read with 120B IPC.

(iii) All of them pursuant to the criminal conspiracy attempted to commit the murder of PW­3 by firing bullets from their revolvers on both PW­3 and PW­7 due to which both of them received dangerous injuries and thereby all of them committed an offence punishable under Section 307 read with 120B IPC.’

(emphasis added)

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 26 of 33

18. In paragraph 7 of the High Court Judgment,

it is noted that a separate charge under Section 452

read with 120­B of IPC was framed against all

accused except the present appellant. Thus, the

charge as framed 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 PW­5

regarding the appellant’s presence with a weapon

outside the premises where the offence took place,

the involvement of the appellant has been held as

proved. There is absolutely no other evidence

against him. This is not a case where there are

several incriminating circumstances appearing

against the appellant in the evidence adduced by

the prosecution. This is a case where there is only

a solitary circumstance appearing in the evidence

against the appellant. The prosecution examined

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 27 of 33 37 witnesses. The material against the appellant is

in the form of one sentence in the evidence of PW­5.

As mentioned earlier, if we read 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. This is how, on facts, we

find that a serious prejudice was caused to the

appellant.

19. The incident is of 1995. It is not clear

whether this aspect was argued before the Trial

Court as the Trial Court has not reproduced the

submissions of the counsel for the appellant.

However, before the High Court, it was certainly

canvassed as it forms a part of the written

submissions.

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 28 of 33

20. Even assuming that the defect or irregularity

was curable, the question is whether today, the

appellant­accused 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.

21. Before we part with this judgment, we must

take a note of sub­section (5) added to Section 313

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 29 of 33 of CrPC w.e.f. 31st December 2009. Sub­section (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 defence counsel in

preparing relevant questions. Therefore, 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

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 30 of 33 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 sub­

section (5) of Section 313 of CrPC, which will

ensure that the chances of committing errors and

omissions are minimized.

22. In 1951, while delivering the verdict in the

case of Tara Singh6, this Court lamented that in

many cases, scant attention is paid to the salutary

provision of Section 342 of CrPC of 1898. We are

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 31 of 33 sorry to note that the situation continues to be the

same after 72 years as we see such defaults in large

number of cases. The National and the State

Judicial Academies must take a note of this

situation. The Registry shall forward a copy of this

decision to the National and all the State Judicial

Academies.

23. In the circumstances, we are of the view that

the conviction of the appellant stands vitiated. In

the facts of the case, the option of remand will be

unjust. Accordingly, we allow the appeal and set

aside the conviction and sentence of the appellant

under the Judgment and Order dated 27 th August

2003 passed by the learned Additional Sessions

Judge, Delhi, in Sessions Case No.9 of 2000.

Consequently, the impugned judgment of the High

Court is also set aside. We make it clear that both

judgments are set aside only insofar as the

appellant is concerned. We, accordingly, direct that

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 32 of 33 the respondent shall forthwith set the appellant at

liberty unless he is required to be detained in

connection with any other case.

……………………………J. [ABHAY S. OKA]

……………………………J. [RAJESH BINDAL]

New Delhi May 11, 2023.

Crl.A.@SLP(Crl.)No.11256 of 2018 Page 33 of 33