Brief Facts
- The allegation against the Appellant, along with one deceased and five others, was that they conspired to intimidate and commit the murder PW3 and his relatives. The brother of PW-3 was killed by the accused persons. It is pertinent to 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.
- The appellant (accused no.2) was convicted by the Sessions Court for the offences punishable under Section 302 read with Section 120B of IPC and his conviction was upheld by the High Court. Thus the accused filed a SLP challenging the veracity of the said orders.
Issues
- Whether the trial would stand vitiated if prejudice is caused to accused due to failure of Trial Court in putting the incriminating circumstances appearing against the accused during his examination under section 313 Cr.P.C.?
- What is the role and importance of section 313 of Cr.P.C?
- Importance of section 313(5) of the Cr.P.C in preparing the list of relevant questions to be put to the accused.
Held
- The Apex Court concluded that the conviction of the accused stands vitiated for failure in putting the incriminating circumstances to the accused during his examination under section 313 CrPC.
- 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 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.
- 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.
- The law consistently laid down by this Court in reference to the examination of accused under section 313 of the CrPC 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;
(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. - 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.
- 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 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 subsection (5) of Section 313 of CrPC, which will ensure that the chances of committing errors and omissions are minimized.
Relevant Para No.
- 10, 11, 16, 18, 21, 23