A two Judge Bench of the Supreme Court in Nar Singh Vs. State of Haryana [Crl. Appeal No. 2388/2014] held that “the victim of the offence or the accused should not suffer for laches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties”. The Court was considering the effect of non-compliance of mandatory provisions of Section 313 Cr.P.C while examining the Accused in a Criminal Trial. The Court explained the scope of S.313 as follows;
“There are two kinds of examination under Section 313 Cr.P.C. The first under Section 313 (1) (a) Cr.P.C. relates to any stage of the inquiry or trial; while the second under Section 313 (1) (b) Cr.P.C. takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular andoptional; but the latter is general and mandatory”.
After elaborately discussing various Judgments on the point the Court held as follows;
Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:-
Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;
(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
(iii) If the appellate court is of the opinion that noncompliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;
(iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.
It is also held that “While it is incumbent upon the Court to see that persons accused of crime must be given a fair trial and get speedy justice, in our view, every reasonable latitude must be given to those who are entrusted with administration of justice. In the facts and circumstances of each case, court should examine whether remand of the matter to the trial court would amount to indefinite harassment of the accused. When there is omission to put material evidence to the accused in the course of examination under Section 313 Cr.P.C., prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for laches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties”.
REPORTABLEIN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2388 OF 2014
(Arising out of S.L.P. (Crl.) No.8852 of 2013)
Nar Singh V State of Haryana
Citation; AIR 2015 SC310
R. BANUMATHI, J .
Leave granted.
2. This appeal is directed against the judgment dated
30.08.2012 passed in Crl. Appeal D-960-DB/2006 by the High
Court of Punjab and Haryana dismissing the appeal of
accused-appellant thereby confirming the conviction of the
appellant under Section 302, IPC and sentence of rigorous
imprisonment for life and a fine of Rs.20,000/- with default
clause and conviction under Section 25 (1B) of the Arms Act,
1959 and sentence of rigorous imprisonment for three years
and a fine of Rs.10,000/- with default clause as imposed by
the trial court.
3. Briefly stated, case of the prosecution is that on
6.03.2005, Rajbir went to sleep in the street on a cot at about
7.30 p.m. and Daya Nand (PW-7) also went to sleep in his
house at about 9.00 p.m. At 11.00 P.M., Daya Nand heard the
sound of vomiting of his brother and he came out and found
his brother Rajbir crying in pain. PW-7 called his father
Chander Bhan and both of them noticed injuries on the
forehead of Rajbir with profuse bleeding. PW-7 went to call
the doctor but the doctor refused to accompany him. When
Daya Nand returned back, Rajbir had already succumbed to
injuries. Law was set in motion by PW-7 and FIR was
registered under Section 302, IPC. PW-14 had taken up the
investigation and inquest was conducted on the body of the
deceased Rajbir. Dr. J.K. Bhalla (PW-10) conducted autopsy
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on the body of deceased Rajbir and a country-made bullet was
seized from the occipital area of the brain of deceased Rajbir.
Dr. Bhalla opined that the death was due to injury to the brain
and he issued Ex P-13-post mortem certificate. Site plan of
the scene of occurrence was prepared and material objects
were seized. The appellant-accused was arrested on
14.03.2005 and based on his confession statement, a pistol
was recovered behind a water tank in the house of the
appellant-accused. The bullet (chambered for .315” & .303”
caliber firearms) and country-made pistol (chambered for .
315” & .303” cartridges) were sent for the Ballistic Expert
opinion. The Ballistic Expert opined that the country-made
bullet (chambered for .315” & .303” caliber firearms) had been
fired from the above-said country-made pistol and not from
any other firearm. On receipt of the Ballistic Expert opinion
and on completion of the investigation, charge sheet was filed
against the appellant under Section 302 IPC, and Section
25(1B) of the Arms Act.
4. To bring home the guilt of the accused, the
prosecution has examined PWs 1 to 14 and exhibited
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documents and material objects. Upon consideration of the
evidence, trial court convicted the appellant under Section 302
IPC and Section 25(1B) of the Arms Act and sentenced him to
undergo imprisonment as aforesaid. On appeal, the High
Court affirmed the conviction for both the offences and
imposed sentence of imprisonment on the appellant. Being
aggrieved, the appellant has preferred this appeal by special
leave.
5. Being based on circumstantial evidence,
prosecution relied on the following circumstances to establish
the guilt of the accused:-
(i) Motive – evidence of PW-8, mother of the deceased, who had
spoken about an incident that had happened 18 years ago
when Rajbir- the deceased and Hoshiar Singh– father of the
accused were bringing 'boorada' from village Satnali in a
mechanised cart and that the said cart overturned on the way
and Hoshiar Singh died in the accident due to which the
appellant and his family had a grudge against Rajbir, as they
felt that Rajbir had killed his father. She further stated that
about four years back, the accused threatened Rajbir that he
would avenge the murder of his father;
(ii) Evidence of PW-11 Ranbir Singh, who deposed that on
06.03.2005 when he came out of his house at about 11.00
p.m., he saw the appellant Nar Singh running in the street.
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PW-11 also claims to have heard the sound of fire-arm shot;
(iii) Disclosure statement of the appellant which led to the
recovery of country-made pistol (chambered for .315” and .
303” caliber firearms) from behind the water tank of
appellant's house;
(iv) Exhibit P-13 and evidence of PW-10, Dr. J.K. Bhalla, who
conducted post mortem on the body of the deceased Rajbir
and recovery of a bullet from occipital area of the brain of
deceased Rajbir; and
(v) Opinion of the Ballistic Expert (Ext. P-12) that the countrymade
bullet (chambered for .315” & .303” caliber firearms)
had been fired from the country-made pistol (chambered for .
315 & .303 cartridges) recovered in pursuance of the
disclosure statement of the accused and not from any other
firearm.
Trial court as well as the High Court held that the above
circumstances are proved by the prosecution and that they
form a complete chain establishing guilt of the accused
resulting in conviction of the appellant. While doing so, trial
court relied upon the Forensic Science Laboratory Report (FSL)
(Ex P-12) as a vital piece of evidence against the appellant. The
High Court also relied upon FSL report as a material evidence
to sustain the conviction of the appellant.
6. Mr. Sushil Kumar Jain, learned Senior Counsel for
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the appellant, contended that none of the circumstances relied
upon by the courts below had been established beyond
reasonable doubt and those circumstances, either
cumulatively or individually, were insufficient to establish the
guilt of the accused. Learned Senior Counsel mainly
contended that the only incriminating circumstantial evidence
against the appellant was Ex P-12 FSL report and the same
was not put to the appellant while he was being questioned
under Section 313 of the Criminal Procedure Code. It was
submitted that Section 313 Cr.P.C. makes it mandatory to put
all the incriminating evidence and circumstances to the
accused and Ex P-12 FSL report, which is the basis for
conviction of the appellant, has not been put to the accused
and non-questioning of the accused as to the vital piece of
evidence is fatal to the prosecution case and vitiates the
conviction. Reliance was placed upon State of Punjab v. Hari
Singh & Ors., (2009) 4 SCC 200.
7. Mr. Narender Hooda, learned Addl. Advocate
General appearing for the State of Haryana, submitted that all
the circumstances against the appellant were established by
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the prosecution and learned courts below recorded concurrent
findings as to the guilt of the accused. Learned counsel
contended that non-questioning of accused as to Ex P 12 FSL
report and expert opinion during questioning under Section
313 Cr.P.C. by itself will not vitiate the trial and the accused
has to establish the prejudice caused to him. It was
submitted that omission to put the FSL report and expert
opinion to the appellant under Section 313 Cr.P.C. and that
prejudice being caused to the appellant was neither raised in
the trial court nor before the High Court and it is not open to
the appellant to raise such a plea in this Court for the first
time.
8. As main thrust of argument of the appellant is on
the question of non-compliance of Section 313 Cr.P.C., we do
not propose to consider the appeal on merits, except on the
important question viz. whether non-compliance of the
mandatory provisions of Section 313 Cr.P.C. vitiates the trial
and conviction of the appellant.
9. The power to examine the accused is provided in
Section 313 Cr.P.C. which reads as under:-
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“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.
(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.”
10. There are two kinds of examination under Section
313 Cr.P.C. The first under Section 313 (1) (a) Cr.P.C. relates
to any stage of the inquiry or trial; while the second under
Section 313 (1) (b) Cr.P.C. takes place after the prosecution
witnesses are examined and before the accused is called upon
to enter upon his defence. The former is particular and
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optional; but the latter is general and mandatory. In Usha K.
Pillai v. Raj K. Srinivas & Ors., (1993) 3 SCC 208, this Court
held that the Court is empowered by Section 313 (1) clause (a)
to question the accused at any stage of the inquiry or trial;
while Section 313(1) clause (b) obligates the Court to question
the accused before he enters his defence on any circumstance
appearing in prosecution evidence against him.
11. The object of Section 313 (1)(b) Cr.P.C. is to bring
the substance of accusation to the accused to enable the
accused to explain each and every circumstance appearing in
the evidence against him. The provisions of this section are
mandatory and cast a duty on the court to afford an
opportunity to the accused to explain each and every
circumstance and incriminating evidence against him. The
examination of accused under Section 313 (1)(b) Cr.P.C. is not
a mere formality. Section 313 Cr.P.C. prescribes a procedural
safeguard for an accused, giving him an opportunity to explain
the facts and circumstances appearing against him in the
evidence and this opportunity is valuable from the standpoint
of the accused. The real importance of Section 313 Cr.P.C.
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lies in that, it imposes a duty on the Court to question the
accused properly and fairly so as to bring home to him the
exact case he will have to meet and thereby, an opportunity
is given to him to explain any such point.
12. Elaborating upon the importance of a statement
under Section 313 Cr.P.C., in Paramjeet Singh alias Pamma
v. State of Uttarakhand, (2010) 10 SCC 439 (para 22), this
Court has held as under:
“Section 313 CrPC is based on the fundamental principle of
fairness. The attention of the accused must specifically be
brought to inculpatory pieces of evidence to give him an
opportunity to offer an explanation if he chooses to do so.
Therefore, the court is under a legal obligation to put the
incriminating circumstances before the accused and solicit
his response. This provision is mandatory in nature and
casts an imperative duty on the court and confers a
corresponding right on the accused to have an opportunity
to offer an explanation for such incriminatory material
appearing against him. Circumstances which were not put to
the accused in his examination under Section 313 CrPC
cannot be used against him and have to be excluded from
consideration.” (vide Sharad Birdichand Sarda v. State of
Maharashtra(1984) 4 SCC 116 and State of Maharashtra v.
Sukhdev Singh (1992) 3 SCC 700.
13. In Basava R. Patil & Ors. v. State of Karnataka &
Ors., (2000) 8 SCC 740, this Court considered the scope of
Section 313 Cr.P.C. and in paras (18) to (20) held as under:-
“18. What is the object of examination of an accused
under Section 313 of the Code? The section itself declares the
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object in explicit language that it is “for the purpose of
enabling the accused personally to explain any circumstances
appearing in the evidence against him”. In Jai Dev v. State of
Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was)
speaking for a three-Judge Bench has focussed on the
ultimate test in determining whether the provision has been
fairly complied with. He observed thus:
“The ultimate test in determining whether or not
the accused has been fairly examined under
Section 342 would be to enquire whether, having
regard to all the questions put to him, he did get
an opportunity to say what he wanted to say in
respect of prosecution case against him. If it
appears that the examination of the accused
person was defective and thereby a prejudice
has been caused to him, that would no doubt be
a serious infirmity.”
19. Thus it is well settled that the provision is mainly
intended to benefit the accused and as its corollary to benefit
the court in reaching the final conclusion.
20. At the same time it should be borne in mind that the
provision is not intended to nail him to any position, but to
comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word “may”
in clause (a) of sub-section (1) in Section 313 of the Code
indicates, without any doubt, that even if the court does not
put any question under that clause the accused cannot raise
any grievance for it. But if the court fails to put the needed
question under clause (b) of the sub-section it would result in
a handicap to the accused and he can legitimately claim that
no evidence, without affording him the opportunity to explain,
can be used against him. It is now well settled that a
circumstance about which the accused was not asked to
explain cannot be used against him.”
14. Main contention of the appellant is that since the
material evidence Ex-P12 and Ballistic Expert opinion was not
put to him in his statement under Section 313 Cr.P.C., it must
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be completely excluded from consideration and barring the
same, there is no other evidence to sustain the conviction and
reliance was placed upon Avtar Singh & Ors. v. State of
Punjab, (2002) 7 SCC 419.
15. In Avtar Singh’s case, when the accused were
examined under Section 313 Cr.P.C., the essence of
accusation, particularly the possession of goods was not
brought to their notice. It was also noticed that the possibility
of the accused persons being labourers of the truck was not
ruled out by evidence. Avtar Singh’s case was rendered on
consideration of several peculiar factual aspects of that case
and it does not lay down the law of universal application as it
had been decided on its own facts.
16. Undoubtedly, the importance of a statement under
Section 313 Cr.P.C., insofar as the accused is concerned, can
hardly be minimised. The statutory provision is based on the
rules of natural justice for an accused, who must be made
aware of the circumstances being put against him so that he
can give a proper explanation to meet that case. If an objection
as to Section 313 Cr.P.C. statement is taken at the earliest
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stage, the Court can make good the defect and record
additional statement of the accused as that would be in the
interest of all. When objections as to defective Section 313
Cr.P.C. statement is raised in the appellate court, then
difficulty arises for the prosecution as well as the accused.
When the trial court is required to act in accordance with the
mandatory provisions of Section 313 Cr.P.C., failure on the
part of the trial court to comply with the mandate of the law,
in our view, cannot automatically enure to the benefit of the
accused. Any omission on the part of the Court to question
the accused on any incriminating circumstance would not ipso
facto vitiate the trial, unless some material prejudice is shown
to have been caused to the accused. Insofar as noncompliance
of mandatory provisions of Section 313 Cr.P.C., it
is an error essentially committed by the learned Sessions
Judge. Since justice suffers in the hands of the Court, the
same has to be corrected or rectified in the appeal.
17. So far as Section 313 Cr.P.C. is concerned,
undoubtedly, the attention of the accused must specifically be
brought to inculpable pieces of evidence to give him an
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opportunity to offer an explanation, if he chooses to do so. A
three-Judge Bench of this Court in Wasim Khan v. The State
of Uttar Pradesh, AIR 1956 SC 400; and Bhoor Singh & Anr. v.
State of Punjab, AIR 1974 SC 1256 held that every error or
omission in compliance of the provisions of Section 342 of the
old Cr.P.C. does not necessarily vitiate trial. The accused
must show that some prejudice has been caused or was likely
to have been caused to him.
18. Observing that omission to put any material
circumstance to the accused does not ipso facto vitiate the
trial and that the accused must show prejudice and that
miscarriage of justice had been sustained by him, this Court
in Santosh Kumar Singh v State through CBI, (2010) 9 SCC 747
(Para 92), has held as under:
“... the facts of each case have to be examined but the
broad principle is that all incriminating material
circumstances must be put to an accused while recording
his statement under Section 313 of the Code, but if any
material circumstance has been left out that would not ipso
facto result in the exclusion of that evidence from
consideration unless it could further be shown by the
accused that prejudice and miscarriage of justice had been
sustained by him...”
19. In Paramjeet Singh alias Pamma v State of
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Uttarakhand (supra), this Court has held as under:-
“Thus, it is evident from the above that the provisions of
Section 313 Cr.P.C. make it obligatory for the court to
question the accused on the evidence and circumstances
against him so as to offer the accused an opportunity to
explain the same. But, it would not be enough for the
accused to show that he has not been questioned or
examined on a particular circumstance, instead, he must
show that such non-examination has actually and materially
prejudiced him and has resulted in the failure of justice. In
other words, in the event of any inadvertent omission on the
part of the court to question the accused on an incriminating
circumstance cannot ipso facto vitiate the trial unless it is
shown that some material prejudice was caused to the
accused by the omission of the court.”
20. The question whether a trial is vitiated or not
depends upon the degree of the error and the accused must
show that non-compliance of Section 313 Cr.P.C. has
materially prejudiced him or is likely to cause prejudice to
him. Merely because of defective questioning under Section
313 Cr.P.C., it cannot be inferred that any prejudice had been
caused to the accused, even assuming that some
incriminating circumstances in the prosecution case had been
left out. When prejudice to the accused is alleged, it has to be
shown that accused has suffered some disability or detriment
in relation to the safeguard given to him under Section 313
Cr.P.C. Such prejudice should also demonstrate that it has
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occasioned failure of justice to the accused. The burden is
upon the accused to prove that prejudice has been caused to
him or in the facts and circumstances of the case, such
prejudice may be implicit and the Court may draw an
inference of such prejudice. Facts of each case have to be
examined to determine whether actually any prejudice has
been caused to the appellant due to omission of some
incriminating circumstances being put to the accused.
21. We may refer to few judgments of this Court where
this Court has held that omission to put the question under
Section 313 Cr.P.C. has caused prejudice to the accused
vitiating the conviction. In State of Punjab v Hari Singh & Ors.
(2009) 4 SCC 200, question regarding conscious possession of
narcotics was not put to the accused when he was examined
under Section 313 Cr.P.C. Finding that question relating to
conscious possession of contraband was not put to the
accused, this Court held that the effect of such omission
vitally affected the prosecution case and this Court affirmed
the acquittal. In Kuldip Singh & Ors. v State of Delhi
(2003) 12 SCC 528, this Court held that when important
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incriminating circumstance was not put to the accused during
his examination under Section 313 Cr.P.C., prosecution
cannot place reliance on the said piece of evidence.
22. We may also refer to other set of decisions where in
the facts and circumstances of the case, this Court held that
no prejudice or miscarriage of justice has been occasioned to
the accused. In Santosh Kumar Singh v State thr. CBI (supra),
it was held that on the core issues pertaining to the helmet
and the ligature marks on the neck which were put to the
doctor, the defence counsel had raised comprehensive
arguments before the trial court and also before the High
Court and the defence was, therefore, alive to the
circumstances against the appellant and that no prejudice or
miscarriage of justice had been occasioned. In Alister Anthony
Pareira v. State of Maharashtra (2012) 2 SCC 648, in the facts
and circumstances, it was held that by not putting to the
appellant expressly the chemical analyser’s report and the
evidence of the doctor, no prejudice can be said to have been
caused to the appellant and he had full opportunity to say
what he wanted to say with regard to the prosecution evidence
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and that the High Court rightly rejected the contention of the
appellant-accused in that regard.
23. When such objection as to omission to put the
question under Section 313 Cr.P.C. is raised by the accused in
the appellate court and prejudice is also shown to have been
caused to the accused, then what are the courses available to
the appellate court? The appellate court may examine the
convict or 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 under Section
313 Cr.P.C. and the said answer can be taken into
consideration.
24. In Shivaji Sahabrao Bobade & Anr. vs. State of
Maharashtra (1973) 2 SCC 793, this Court considered the
fallout of the omission to put a question to the accused on
vital circumstance appearing against him and this Court has
held that the appellate court can question the counsel for the
accused as regards the circumstance omitted to be put to the
accused and in para 16 it was held as under:-
“ … It is trite law, nevertheless fundamental, that the
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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 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, Cr.P.C., the omission
has not been shown to have caused prejudice to the
accused....”(underlining added)
25. The same view was reiterated by this Court in
State (Delhi Administration) vs. Dharampal, (2001) 10 SCC 372,
wherein this Court has held as under:-
“Thus it is to be seen that where an omission, to bring the
attention of the accused to an inculpatory material has
occurred that does not ipso facto vitiate the proceedings.
The accused must show that failure of justice was
occasioned by such omission. Further, in the event of an
inculpatory material not having been put to the accused,
the appellate Court can always make good that lapse by
calling upon the counsel for the accused to show what
explanation the accused has as regards the circumstances
established against the accused but not put to him.
This being the law, in our view, both the Sessions
Judge and the High Court were wrong in concluding that the
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omission to put the contents of the certificate of the
Director, Central Food Laboratory, could only result in the
accused being acquitted. The accused had to show that
some prejudice was caused to him by the report not being
put to him. Even otherwise, it was the duty of the Sessions
Judge and/or the High Court, if they found that some vital
circumstance had not been put to the accused, to put those
questions to the counsel for the accused and get the answers
of the accused. If the accused could not give any plausible
or reasonable explanation, it would have to be assumed that
there was no explanation. Both the Sessions Judge and the
High Court have overlooked this position of law and failed to
perform their duties and thereby wrongly acquitted the
accused.”
26. This Court has thus widened the scope of the
provisions concerning the examination of the accused after
closing prosecution evidence and the explanation offered by
the counsel of the accused at the appeal stage was held to
be a sufficient substitute for the answers given by the
accused himself.
27. The point then arising for our consideration is, if
all relevant questions were not put to accused by the trial
court as mandated under Section 313 Cr.P.C. and where the
accused has also shown that prejudice has been caused to
him or where prejudice is implicit, whether the appellate
court is having the power to remand the case for re-decision
from the stage of recording of statement under Section 313
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Cr.P.C. Section 386 Cr.P.C. deals with power of the appellate
court. As per sub-clause (b) (i) of Section 386 Cr.P.C., the
appellate court is having power to order retrial of the case by a
court of competent jurisdiction subordinate to such appellate
court. Hence, if all the relevant questions were not put to
accused by the trial court and when the accused has shown
that prejudice was caused to him, the appellate court is
having power to remand the case to examine the accused
again under Section 313 Cr.P.C. and may direct remanding
the case again for re-trial of the case from that stage of
recording of statement under Section 313 Cr.P.C. and the
same cannot be said to be amounting to filling up lacuna in
the prosecution case.
28. In Asraf Ali vs. State of Assam (2008) 16 SCC 328,
this Court has examined the scope and object of examination
of accused under Section 313 Cr.P.C. and in para (24) it was
observed that in certain cases when there is perfunctory
examination under Section 313 of the Code, the matter could
be remitted to the trial court with a direction to retry from the
stage at which the prosecution was closed.
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29. In Ganeshmal Jashraj vs. Government of Gujarat &
Anr., (1980) 1 SCC 363, after closure of evidence of the
prosecution and examination of accused under Section 313
Cr.P.C. was completed, the accused admitted his guilt
presumably as a result of plea bargaining and the accused
was convicted. Pointing out that the approach of the trial
court was influenced by the admission of guilt made by the
accused and that conviction of the accused cannot be
sustained, this Court has remanded case to trial court to
proceed afresh from the stage of examination under Section
313 Cr.P.C.
30. Whenever a plea of omission to put a question to
the accused on vital piece of evidence is raised in the appellate
court, courses available to the appellate court can be briefly
summarised as under:-
(i) Whenever a plea of non-compliance of Section 313
Cr.P.C. is raised, it is within the powers of the appellate
court to examine and further examine the convict or the
counsel appearing for the accused and the said answers
shall be taken into consideration for deciding the matter. If
the accused is unable to offer the appellate court any
reasonable explanation of such circumstance, the court may
assume that the accused has no acceptable explanation to
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offer;
(ii) In the facts and circumstances of the case, if the
appellate court comes to the conclusion that no prejudice
was caused or no failure of justice was occasioned, the
appellate court will hear and decide the matter upon merits.
(iii) If the appellate court is of the opinion that noncompliance
with the provisions of Section 313 Cr.P.C. has
occasioned or is likely to have occasioned prejudice to the
accused, the appellate court may direct retrial from the stage
of recording the statements of the accused from the point
where the irregularity occurred, that is, from the stage of
questioning the accused under Section 313 Cr.P.C. and the
trial Judge may be directed to examine the accused afresh
and defence witness if any and dispose of the matter afresh;
(iv) The appellate court may decline to remit the matter to
the trial court for retrial on account of long time already
spent in the trial of the case and the period of sentence
already undergone by the convict and in the facts and
circumstances of the case, may decide the appeal on its own
merits, keeping in view the prejudice caused to the accused.
31. On the question of remitting the matter back to the
trial court on the ground of non-compliance of mandatory
provisions of Section 313 Cr.P.C., learned counsel for the
appellant contended that in the present case, the accused is in
custody for more than eight years and the accused person
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cannot be kept under trial indefinitely and that the accused
has a right to speedy trial. The learned counsel placed reliance
upon the judgment of this Court in Abdul Rehman Antulay
And Ors. vs. R.S. Nayak And Anr., (1992) 1 SCC 225. In paras
(63) and (64) of the said judgment it was held as under:-
“63. In Machander v. State of Hyderabad (1955) 2 SCR 524
this Court observed that while it is incumbent on the Court
to see that no guilty persons escapes, it is still more its duty
to see that justice is not delayed and accused persons are
not indefinitely harassed. The scales, the Court observed,
must be held even between the prosecution and the accused.
In the facts of that case, the Court refused to order trial on
account of the time already spent and other relevant circumstances
of that case.
64. In Veerabadran Chettiar v. Ramaswami Naicker (1959)
SCR 1211 this Court refused to send back proceedings on
the ground that already a period of five years has elapsed
and it would not be just and proper in the circumstances of
the case to continue the proceedings after such a lapse of
time. Similarly, in Chajoo Ram v. Radhey Shyam ((1971) 1
SCC 774 the Court refused to direct a re-trial after a period
of 10 years having regard to the facts and circumstances of
the case. In State of U.P. v. Kapil Deo Shukla ((1972) 3 SCC
504, though the Court found the acquittal of the accused
unsustainable, it refused to order a remand or direct a trial
after a lapse of 20 years”.
32. While we are of the view that the matter has to be
remitted to the trial court for proceeding afresh from the stage
of Section 313 Cr.P.C. questioning, we are not oblivious of the
right of the accused to speedy trial and that the courts are to
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ensure speedy justice to the accused. While it is incumbent
upon the Court to see that persons accused of crime must be
given a fair trial and get speedy justice, in our view, every
reasonable latitude must be given to those who are entrusted
with administration of justice. In the facts and circumstances
of each case, court should examine whether remand of the
matter to the trial court would amount to indefinite
harassment of the accused. When there is omission to put
material evidence to the accused in the course of examination
under Section 313 Cr.P.C., prosecution is not guilty of not
adducing or suppressing such evidence; it is only the failure
on the part of the learned trial court. The victim of the offence
or the accused should not suffer for laches or omission of the
court. Criminal justice is not one-sided. It has many facets
and we have to draw a balance between conflicting rights and
duties.
33. Coming to the facts of this case, FSL Report
(Ex-P12) was relied upon both by the trial court as well as by
the High Court. The objection as to the defective 313 Cr.P.C.
statement has not been raised in the trial court or in the
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High Court and the omission to put the question under
Section 313 Cr.P.C., and prejudice caused to the accused is
raised before this Court for the first time. It was brought to
our notice that the appellant is in custody for about eight
years. While the right of the accused to speedy trial is a
valuable one, Court has to subserve the interest of justice
keeping in view the right of the victim’s family and the society
at large.
34. In our view, accused is not entitled for acquittal
on the ground of non-compliance of mandatory provisions of
Section 313 Cr.P.C. We agree to some extent that the
appellant is prejudiced on account of omission to put the
question as to the opinion of Ballistic Expert (Ex- P12) which
was relied upon by the trial court as well as by the High
Court. Trial court should have been more careful in framing
the questions and in ensuring that all material evidence and
incriminating circumstances were put to the accused.
However, omission on the part of the Court to put questions
under Section 313 Cr.P.C. cannot enure to the benefit of the
accused.
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35. The conviction of the appellant under Section 302
IPC and Section 25 (IB) of the Arms Act by the trial court in
Sessions Case No. 40/2005 and the sentence imposed on him
as affirmed by the High Court is set aside. The matter is
remitted back to the trial court for proceeding with the matter
afresh from the stage of recording statement of the accused
under Section 313 Cr.P.C. The trial court shall examine the
accused afresh under Section 313 Cr.P.C. in the light of the
above observations and in accordance with law. The trial
Judge is directed to marshal the evidence on record and put
specific and separate questions to the accused with regard to
incriminating evidence and circumstance and shall also afford
an opportunity to the accused to examine the defence
witnesses, if any, and proceed with the matter. Since the
occurrence is of the year 2005, we direct the trial court to
expedite the matter and dispose of the same in accordance
with law preferably within a period of six months from the date
of receipt of this judgment. Since we are setting aside the
conviction imposed upon the appellant-accused, the appellantaccused
is at liberty to move for bail, if he is so advised. On
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such bail application being moved by the appellant-accused,
the trial court shall consider the same in accordance with law.
We make it clear that we have not expressed any opinion on
the merits of the matter.
36. The appeal is disposed of as above.
…………………….J.
(T. S. Thakur)
…………………….J.
(R. Banumathi)
New Delhi,
November 11, 2014.
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