Ramji Prasad Jaiswal vs State of Bihar

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 490 OF 2025 (ARISING OUT OF SLP(CRIMINAL) NO. 2629 OF 2012)

RAMJI PRASAD JAISWAL @ RAMJEE PRASAD JAISWAL AND ORS. APPELLANT(S)

VERSUS

STATE OF BIHAR RESPONDENT(S)

JUDGMENT

UJJAL BHUYAN, J.

This appeal by special leave arises out of the

judgment and order dated 24.11.2011 in Criminal Appeal

(SJ) No. 418/2006 passed by the High Court of Judicature at

Patna. By the aforesaid judgment and order dated Signature Not Verified Digitally signed by ASHISH KONDLE Date: 2025.05.20 24.11.2011, a learned Single Judge of the High Court of 17:10:55 IST Reason:

Judicature at Patna (High Court) dismissed Criminal Appeal (SJ) No. 430 of 2006 (Shiv Narayan Bansal and another Vs.

State of Bihar) and Criminal Appeal (SJ) No. 418 of 2006

(Ramji Prasad Jaiswal alias Ramjee Prasad Jaiswal and two

others Vs. State of Bihar).

2. In this appeal, we are concerned with the decision

of the High Court dated 24.11.2011 in respect of Criminal

Appeal (SJ) No. 418 of 2006. The three appellants in this case

are:

1. Ramji Prasad Jaiswal alias Ramjee Prasad Jaiswal,

2. Ashok Kumar Jaiswal, and

3. Bal Mukund Jaiswal.

3. It may be mentioned that appellants along with the

appellants of Criminal Appeal (SJ) No.430 of 2006 were tried

by the Court of learned Special Judge, Central Bureau of

Investigation (CBI), South Bihar, Patna (‘CBI Court”

hereinafter) in Special Case No. 52/1983 for allegedly

committing offences under Sections 420, 440, 468, 471 and

120B of the Indian Penal Code, 1860 (IPC) read with Section

5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947.

2 3.1. By the judgment and order dated 29.05.2006,

appellants in both the criminal appeals were held guilty of

committing offences under Sections 420, 468, 471 and 120B

IPC read with Section 5(2) and 5(1)(d) of the Prevention of

Corruption Act, 1947 (briefly ‘the PC Act’ hereinafter).

Accordingly, appellants in both the appeals were directed to

suffer rigorous imprisonment (RI) for three years under

Section 420 IPC and also to pay fine of rupees forty thousand.

They were further directed to suffer RI for three years under

Section 468 IPC besides paying fine of rupees five thousand.

That apart, each of the appellants were directed to suffer RI

for two years and one year respectively under Section 471

read with Sections 468, 420 and 120B IPC. The substantive

sentence of imprisonment of one year was inclusive of the

sentence awarded to each of the appellants for the offence

under Section 5(2) read with Section 5(1)(d) of the PC Act. It

was directed that the sentences imposed were to run

concurrently.

3

4. Aggrieved by their conviction and sentence, all the

convicts filed two criminal appeals before the High Court,

being Criminal Appeal (SJ) Nos. 418 and 430 of 2006. It may

be mentioned that after filing of appeal in the High Court, the

second appellant Chetharu Singh in Criminal Appeal (SJ)

No.430 of 2006 passed away. Therefore, the appeal qua him

stood abated. The said appeal proceeded against the

remaining sole appellant Shiv Narayan Bansal.

4.1. High Court vide the common judgment and order

dated 24.11.2011 came to the conclusion that the appellants

were appropriately convicted and correctly sentenced.

Accordingly, both the appeals were dismissed.

5. As noted above, appellants in Criminal Appeal (SJ)

No.418 of 2006: (1) Ramji Prasad Jaiswal alias Ramjee Prasad

Jaiswal (2) Ashok Kumar Jaiswal and (3) Bal Mukund Jaiswal

preferred the related SLP (Criminal) No. 2629 of 2012.

6. By order dated 26.03.2012, this Court after

condoning the delay issued notice qua appellant Nos.1 and 2

on the question of sentence only. In respect of appellant No.3,

4 notice was issued on the question of sentence as also on the

question of his being a juvenile on the date of commission of

offence.

7. On 21.09.2012, this Court considered the plea of

juvenility raised by appellant No.3. As per the matriculation

certificate, appellant No.3 was born on 24.12.1965 which

would mean that he was around 17 years of age in December

1982 when the offence in question was allegedly committed

by him. Learned Additional Solicitor General upon

instructions submitted that according to the preliminary

enquiry made by CBI, the certificate relied upon by appellant

was found to be genuine. Therefore, this Court directed the

Special Judge to conduct an enquiry in terms of Section 7A of

the Juvenile Justice (Care and Protection of Children) Act,

2000 to record a finding on the question qua juvenility of

appellant No.3 and thereafter to submit a report to this Court.

By the said order, this Court enlarged all the three appellants

on bail and also suspended the remainder of the sentences

5 imposed on the appellants. Order dated 21.09.2012 reads as

under:

Petitioner No. 3 has filed Crl. M.P. No. 11269 of 2012 inter alia pointing out that he was a juvenile within the meaning of The Juvenile Justice (Care and Protection of Children) Act, 2000 on the date of the commission of the offence. He has, in support of that assertion placed reliance upon two documents one of which happens to be the matriculation certificate issued by the Bihar School Examination Board. According to that certificate, petitioner No. 3 was born on 24.12.1965 meaning thereby that he was around 17 years of age in December, 1982 when the offence in question was allegedly committed by him. On 17.08.2012, when this special leave petition came up for orders before us we had directed Mr. H.P. Raval, Additional Solicitor General to take instructions as to the genuineness of the certificate relied upon by the petitioner. Mr. Rajiv Nanda, learned counsel for the respondent CBI today submits on instructions that according to the preliminary inquiry made by the CBI, Patna the certificate relied upon by the petitioner in the application has been found to be genuine. That being so, a case for holding an inquiry under Section 7A of the Act in regard to juvenility of petitioner No.3 has been made out. We accordingly direct the Special Judge to conduct an inquiry in terms of Section 7A of The Juvenile Justice (Care and Protection

6 of Children) Rules, 2007, summon the requisite documents from the Board of Secondary Education, record other evidence if any produced in regard to the question of juvenility of petitioner No.3, record a finding on the question and submit a report to this Court expeditiously but not later than three months from the date a copy of this order is received by the said court.

Mr. Nagendra Rai, learned counsel for petitioner No.3 submits that petitioner No. 3 shall appear before the trial court if enlarged on bail and also produce the original certificates relied upon by him in support of his claim. Mr. Rai further contends that petitioner No. 1, Ramji Prasad is nearly 72 years old with multiple ailments and has already undergone seven years of imprisonment. So also petitioner No.2, Ashok Kumar Jaiswal has undergone seven months imprisonment out of a total of three years awarded to them. He further states that out of total amount of Rs.13,29,266/- allegedly swindled by the petitioners, not a penny has been received or misappropriated by the petitioners in this appeal even according to the prosecution. Appellant Shiv Narain Banshal in the connected appeal is said to have received Rs.12,57,000/- while the remaining amount was taken away by one other accused person who has since died. He urged that keeping in view the totality of the circumstances the petitioners deserve to be enlarged on bail. Prima facie we find merit in that contention. We accordingly direct that Ramji Jaiswal,

7 Ashok Kumar and Bal Mukund shall stand released on bail on their furnishing bail bonds in a sum of Rs.20,000/- with two sureties each in the like amount to the satisfaction of the trial court. The remainder of the sentence awarded to the said petitioners shall on that condition remain suspended.

The petition shall be listed for final hearing on a non-miscellaneous day after the report is received from the trial court. A copy of this order shall be forwarded to the CBI, Patna for appropriate action.

8. Order dated 05.01.2015 indicates that report from

the trial court was received.

9. Finally, the matter was heard on 29.01.2005 on

which date leave was granted.

10. Relevant facts may be briefly noted.

11. The case relates to a period between September,

1982 to December, 1982. At that point of time deceased

accused Ajay Kumar Srivastava was the Branch Manager of

State Bank of India, Agriculture Market Yard Branch, Mohania

(briefly ‘SBI’ hereinafter). The allegation was that Ajay Kumar

Srivastava misused his official position and conspired with

8 deceased appellant Chetharu Singh (proprietor of M/s

Bishnujee Bhandar) and appellant Shiv Narayan Bansal

(proprietor of M/s Bansal Stores, Mohania) along with the

three present appellants i.e. Ramji Prasad Jaiswal @ Ramjee

Prasad Jaiswal and his two sons Bal Mukund Jaiswal and

Ashok Kumar Jaiswal thereby fraudulently and dishonestly

obtained payment of Rs. 71,456.00 to Chetharu Singh and Rs.

12,57,810.00 to Shiv Narayan Bansal against certain bills

which were accompanied by fake transport receipts issued by

the present three appellants, purportedly on behalf of M/s

Rohtas Carriers, showing consignment of grains of different

consignees. In the process, SBI suffered loss to the tune of

Rs.13,29,266.00 as the principal amount.

12. M/s Bishnujee Bhandar and M/s Bansal Stores had

current accounts in SBI. M/s Rohtas Carriers was shown as

transport agency which was being run by the present three

appellants. Allegation was that all the bills were fake. By

entering into criminal conspiracy by and between the accused,

9 they had obtained the above payment illegally and

fraudulently.

13. As regards M/s Rohtas Carriers and the present

three appellants are concerned, the allegation was that M/s

Rohtas Carriers neither had a vehicle of its own nor had any

godown or business premises or branch or office at Mohania.

In fact, it had no business in the said area. Consignment notes

issued by the present appellants were fake. Therefore, they

were also part of the criminal conspiracy whereby and

whereunder wrongful loss was caused to the SBI to the tune of

Rs.13,29,266.00.

14. During the trial, prosecution examined as many as

twenty seven witnesses and exhibited a large number of

documents. Upon consideration of the evidence tendered, the

trial court convicted and sentenced the appellants as above.

As already noted, the two criminal appeals filed came to be

dismissed by the High Court vide the impugned judgment and

order dated 24.11.2011.

10

15. Before we proceed to record the submissions of

learned counsel for the parties, it would be appropriate to

highlight the relevant dates:

1. Two FIRs were registered by CBI on 23.06.1983

wherein the appellants and others were named as

accused.

2. CBI filed chargesheet on 31.12.1984.

3. Charges were framed by the learned Special Judge,

CBI Court on 02.09.1986.

4. Thereafter, the trial commenced.

5. At the conclusion of recording of evidence of the

prosecution witnesses, statements of the appellants

were recorded on 04.01.2006 under Section 313 of

the Code of Criminal Procedure, 1973 (CrPC).

6. Trial Court convicted and sentenced the appellants

as above on 29.05.2006.

7. High Court dismissed both the criminal appeals vide

the judgment and order dated 24.11.2011.

11 16. Learned senior counsel for the appellant submits

that since leave is being granted, all legal contentions are now

open to the appellants.

16.1. Referring to the statements of the appellants under

Section 313 Cr.P.C., he submits that those were recorded in a

most mechanical manner. The incriminating circumstances

which had come on record against the appellants in the

prosecution evidence were not put to them when they were

examined under Section 313 CrPC. Only four general

questions were put. She submits that because of such

irregularity, grave prejudice was caused to the appellants.

16.2. Because of failure of the courts below to address this

issue, grave prejudice was caused to the appellants. In any

case, since a considerable period of about two decades has

lapsed, it is not practically feasible to revert back to the trial

court to restart the trial proceedings from the stage of

recording of statements of the appellants under Section 313

CrPC. Therefore, on this ground alone the order of the trial

12 court as well as that of the High Court are liable to be

appropriately interfered with.

16.3. Another submission of learned senior counsel for

the appellants is that appellant No. 3 Bal Mukund Jaiswal was

below 18 years of age during the period September, 1982 to

December, 1982 i.e. the period to which the offence and the

chargesheet relates. Therefore, on the date of commission of

offence he was a juvenile. Though this ground was not taken

before the courts below, she submits that it is settled law that

a plea of juvenility of an accused/convict can be taken at any

stage.

16.4. Learned senior counsel thereafter has referred to

the matriculation certificate of appellant No. 3 which shows his

date of birth as 24.12.1965 which would mean that he was

aged about 17 years of age in December, 1982. Thereafter, she

has referred to the order of this Court dated 21.09.2012 as well

as to the finding of the Special Judge on the question of

juvenility.

13 16.5. It is, therefore, submitted that all the appellants are

liable to be acquitted. Firstly, for failure of the court to comply

with the requirements of Section 313 Cr.P.C. causing great

prejudice to the appellants. Secondly, in so far appellant No. 3

is concerned, he being a juvenile on the date of commission of

the offence, therefore, the impugned conviction and sentence

qua him cannot be sustained. Consequently, the appeal should

be allowed.

17. Per contra, learned Additional Solicitor General

submits that in so far appellant Nos. 1 and 2 are concerned,

their involvement in the commission of the offence has been

fully established. Learned Special judge on the basis of the

materials on record had rightly convicted them which has been

affirmed by the High Court in the impugned judgment.

17.1. He further submits that in so far alleged infraction

of Section 313 Cr.P.C. is concerned, learned Special Judge had

brought to the notice of the appellant the gist of the evidence

qua the said appellants which had come on record. Therefore,

14 there was substantial compliance to the requirements of

Section 313 Cr.P.C.

17.2. He submits that even if we proceed on the

assumption that there has been violation of Section 313

Cr.P.C., appellant Nos. 1 and 2 should not be let off on a

technicality which is to be weighed against the totality of the

evidence on record. In other words, he submits that on a plea

of technicality, appellants should not be let off in as much as

prosecution was able to establish their guilt.

17.3. Further, in so far appellant No. 3 is concerned,

learned Additional Solicitor General submits that now that the

trial court has found him to be a juvenile on the date of

commission of the offence, this Court may pass appropriate

order.

18. Submissions made by learned counsel for the

parties have received the due consideration of the Court.

19. Let us first deal with the question of juvenility qua

appellant No. 3. It has come on record that appellant No. 3

relied upon the matriculation certificate issued by the Bihar

15 School Examination Board as per which his date of birth is

24.12.1965. This would mean that he was around 17 years of

age during the period September, 1982 to December, 1982

when the offence in question was allegedly committed by him.

In Court herein, learned counsel representing CBI submitted

on instructions that according to preliminary enquiry made by

CBI, the certificate relied upon by appellant No. 3 was found

to be genuine. Thereafter, this Court vide the order dated

21.09.2012 already alluded to hereinabove directed the

learned Special Judge to hold enquiry under Section 7A of the

Juvenile Justice (Care and Protection of Children) Act, 2000

(briefly, ‘the JJ Act’). Section 7A of the JJ Act laid down the

procedure to be followed when claim of juvenility was raised

before any court. Section 7A read thus:

7A. Procedure to be followed when claim of juvenility is raised before any court.—(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is

16 a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.

20. Therefore, what Section 7A contemplated was that

when a claim of juvenility was raised or if the court was of the

opinion that a person was a juvenile on the date of commission

of the offence, the court was mandated to make an inquiry and

after taking such evidence as might be necessary, was

mandatorily required to record a finding whether the person

was a juvenile or a child or not, stating his age as nearly as

possible. As per the proviso, a claim of juvenility could be

raised before any court and at any stage. If upon such inquiry,

17 court found the person to be a juvenile on the date of

commission of the offence, it had to forward the juvenile to the

Juvenile Justice Board for passing appropriate orders and the

sentence if any, passed by a court, would be deemed to have

no effect.

21. Where a juvenile charged with an offence was

produced before a Juvenile Justice Board then in terms of

Section 14(1) of the JJ Act, the Juvenile Justice Board was

required to hold an inquiry in accordance with the provisions

of the JJ Act and make such order in relation to the juvenile

as it deemed fit. If the Juvenile Justice Board found that the

juvenile had committed an offence then Section 15 of the JJ

Act kicked in. Under Section 15 of the JJ Act, the Juvenile

Justice Board could take various steps as contemplated

thereunder and under sub-section (1)(g) had the discretion to

make an order directing the juvenile to be sent to a special

home for a period of 3 years, which period could be reduced in

an appropriate case in terms of the proviso.

18

22. Pursuant to the order of this Court dated

21.09.2012, learned Special Judge conducted the inquiry and

thereafter passed an order on 28.11.2013. Learned Special

Judge noted that appellant No. 3 had passed matriculation

examination from Seva Niketan High School, Barhuli, (Kaimur)

in the year 1981 and in the matriculation certificate his date

of birth has been mentioned as 24.12.1965. Secretary of Bihar

School Examination Board also stated that appellant No. 3 had

appeared in the matriculation examination in the year 1981.

According to the school register, the date of birth of appellant

No. 3 is 24.12.1965. CBI also confirmed that the date of birth

of appellant No. 3 is 24.12.1965. In that view of the matter,

learned Special Judge declared appellant No. 3 to be a juvenile

on the date of the offence. Relevant portion of the order dated

28.11.2013 of the learned Special Judge reads as under:

18. Thus from the evidence both oral and documentary it is evident that the convict Balmukund Jaiswal was juvenile on the date of offence relating to the instant case.

19 19. In the result the convict Balmukund Jaiswal is declared juvenile under the provisions of section 7 and 49 of the Act.

23. Therefore, it is established now that appellant No. 3

was a juvenile on the date of commission of the offence i.e. the

period from September, 1982 to December, 1982. He was

convicted by the trial court vide the judgment and order dated

29.05.2006. Ordinarily once an accused person was found to

be a juvenile on the date of commission of the offence, he was

required to be dealt with by the Juvenile Justice Board for

carrying out necessary inquiry in terms of Section 14 of the JJ

Act and thereafter to pass order under Section 15 including an

order directing the juvenile to be sent to a special home for a

period of 3 years. In the instant case, more than four decades

have passed by since commission of the offence. In the

circumstances, it is neither possible nor feasible to remand the

case of appellant No. 3 to the concerned Juvenile Justice Board

to carry out the exercise under Sections 14 and 15 of the JJ

Act. Therefore, the judgment and order of the trial court dated

29.05.2006 as affirmed by the High Court vide the judgment

20 and order dated 24.11.2011 qua appellant no. 3 are hereby set

aside on the ground of juvenility.

24. Let us now deal with the case of the other two

appellants.

25. Insofar the said appellants are concerned,

prosecution sought to establish their guilt through the

evidence of PW-3 Rameshwar Lal Sharma and PW-25 Ved

Kumar. PW-3 stated that he had started M/s. Rohtas Carriers

in which Ramji Prasad Jaiswal was one of the partners. On

28.11.1979, Ramji Prasad Jaiswal left the partnership. Since

then, M/s. Rohtas Carriers became the proprietorship firm of

PW-3 alone. This witness stated that after 1979, his firm

shifted to Patna. There was no office or business at Mohania of

M/s. Rohtas Carriers thereafter.

26. PW-25 in his evidence stated that he had served

M/s. Rohtas Carriers as a business executive in the year 1978.

Proprietor of M/s. Rohtas Carriers was Rameshwar Lal

Sharma. This firm was established in 1975-1976. He deposed

that Ramji Prasad Jaiswal was earlier one of the partners of

21 M/s. Rohtas Carriers but he had left it in the year 1979. Since

then, the partnership firm was converted into a proprietorship

concern which shifted its office and business to Patna.

Thereafter there was no Rohtas Carriers in existence at

Mohania.

27. In addition to this, prosecution also exhibited a

letter (Exhibit 5) written by Ramji Prasad Jaiswal to the Branch

Manager of Central Bank of India, Fraser Road, Patna. As per

this letter, Ramji Prasad Jaiswal had taken out his entire

shares of partnership from Rohtas Carriers and thereafter he

had no connection with Rohtas Carriers at all. This letter

signed by Ramji Prasad Jaiswal disclosed that Ramji Prasad

Jaiswal had left Rohtas Carriers on 28.11.1979.

28. After conclusion of the prosecution evidence,

statements of the accused persons including the appellants

were recorded under Section 313 CrPC. Insofar the present

appeal is concerned, all the three appellants were asked four

identical questions without putting them to notice the specific

material brought on record by the prosecution witnesses

22 against them. The four identical questions put to appellant No.

1 were as under:

1. Have you heard the statements given by the

witnesses?

2. It has come in the evidence that 14

consignment notes/transport receipts Nos.

616, 617, 140 to 148, 1101, 1102, 625, 635

and 1104 were prepared in the names of M/s

Bansal Stores, Mohania and Vishnuji

Bhandar, Mohania during the period August to

December, 1982?

3. It has also come in the evidence that you in

collusion with accused Ajay Kumar Srivastava,

Shiv Narain Bansal, Chaithakh Singh, Bal

Mukund Jaiswal and Ashok Kumar Jaiswal in

furtherance of a particular conspiracy

transacted with the State Bank of India on the

basis of forged and fabricated documents and

23 after depositing Rs. 71,456.00, you cheated

the bank of Rs. 12,57,810.00?

4. Do you have to say anything in your defence?

29. Section 313 CrPC deals with the power of the court

to examine the accused. Section 313 CrPC is as follows:

313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose of enabling the 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) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

24 (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 of written statement by the accused as sufficient compliance of this section.

30. In Shivaji Sahabrao Bobade Vs. State of

Maharashtra1, this Court was examining Section 342 of the old

Code of Criminal Procedure, 1898 which is pari materia to

Section 313 Cr.P.C. and explained the rationale behind such

provision in the following words:

16.................. 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

1 (1973) 2 SCC 793

25 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 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...

31. Section 313 CrPC came up for consideration in

Dharnidhar Vs. State of Uttar Pradesh2 where this Court

outlined the proper methodology to be adopted by the court

while recording statement of an accused under Section 313

CrPC. This Court held thus:

2

(2010) 7 SCC 759

26

29. The proper methodology to be adopted by the court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under section 313 CrPC.

32. This Court discussed the purpose of recording the

statement of an accused under Section 313 CrPC in Raj Kumar

Singh alias Raju alias Batya Vs. State of Rajasthan3 and held

as under:

30. In a criminal trial, the purpose of examining the accused person under Section 313 CrPC is to meet the requirement of the principles of natural jus-tice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case

3 (2013) 5 SCC 722

27 of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete.

No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 CrPC, cannot be used against him and have to be excluded from consideration.

33. Again, in Raj Kumar alias Suman Vs. State (NCT of

Delhi)4, this Court summarized the law as regards Section 313

CrPC in the following manner:

22. The law consistently laid down by this Court can be summarised as under:

22.1. 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.

22.2. 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.

4 (2023) 17 SCC 95

28 22.3. The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused.

22.4. 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.

22.5. 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.

22.6. In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him.

22.7. In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under Section 313 CrPC.

22.8. 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.

29

34. In a recent decision, this Court in Ashok Vs. State of

Uttar Pradesh5 held as under:

23. In the present case, there is no doubt that material circumstances appearing in evidence against the appellant have not been put to him. The version of the main prosecution witnesses PWs 1 and 2 was not put to him. The stage of the accused leading defence evidence arises only after his statement is recorded under Section 313 CrPC. Unless all material circumstances appearing against him in evidence are put to the accused, he cannot decide whether he wants to lead any defence evidence.

24. In this case, even the date and place of the crime allegedly committed by the appellant were not put to the appellant. What was reportedly seen by PW-2 was not put to the appellant in his examination. Therefore, the appellant was prejudiced. Even assuming that failure to put material to the appellant in his examination is an irregularity, the question is whether it can be cured by remanding the case to the trial court.

35. After surveying the law on this print, let us revert

back to the facts of the present case. The manner in which the

trial court had recorded the statements of the appellants under

Section 313 CrPC was not at all in tune with the requirements

5 (2025) 2 SCC 381

30 of the said provision as explained by this Court as discussed

supra.

36. Four questions generally were put to the appellants,

that too, in a most mechanical manner. These questions did

not reflect the specific prosecution evidence which came on

record qua the appellants. As all the incriminating evidence

were not put to the notice of the appellants, therefore, there

was a clear breach of Section 313 CrPC as well as the principle

of audi alteram partem. Certainly, this caused serious

prejudice to the appellants to put forth their case. Ultimately,

such evidence were relied upon by the court to convict the

appellants.

37. Therefore, there is no doubt that such omission,

which is a serious irregularity, has completely vitiated the trial.

Even if we take a more sanguine approach by taking the view

that such omission did not result in the failure of justice, it is

still a material defect albeit curable. In Raj Kumar (supra), this

Court highlighted that while deciding whether such defect can

31 be cured or not, one of the considerations will be the passage

of time from the date of the incident.

38. As we have already noted, the period during which

the offence was allegedly committed was from September, 1982

to December, 1982. Trial was concluded on 29.05.2006.

Nineteen years have gone by since then. At this distant point

of time, instead of aiding the cause of justice, it will lead to

miscarriage of justice if the case qua the two appellants are

remanded to the trial court to restart the trial from the stage

of recording the statements of the accused persons under

Section 313 CrPC. In such circumstances, we are of the

considered opinion that it is neither possible nor feasible to

order such remand. Consequently, appellants are entitled to

the benefit of doubt because of such omission in the recording

of their statements under Section 313 Cr.P.C. since the trial

court had relied on the evidence adverse to the appellants

while convicting them.

39. Therefore, their conviction and sentence has

become untenable. Resultantly, we set aside the judgment and

32 order of the trial court dated 29.05.2006 and that of the High

Court dated 24.11.2011.

40. Since the appellants are on bail, their bail bonds are

hereby cancelled.

41. Criminal appeal is accordingly allowed.

……………………………J. [ABHAY S. OKA]

……………………………J. [UJJAL BHUYAN] NEW DELHI;

MAY 20, 2025.

33