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Accused is not entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Cr.P.C. = CRIMINAL APPEAL NO.2388 OF 2014 (Arising out of S.L.P. (Crl.) No.8852 of 2013) 2 Nar Singh ….Appellant 3 Versus 5 State of Haryana ….Respondent

1 REPORTABLE
2
3 IN THE SUPREME COURT OF INDIA
4 CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2388 OF 2014
(Arising out of S.L.P. (Crl.) No.8852 of 2013)
2 Nar Singh
….Appellant
3 Versus

5 State of Haryana ….Respondent

J U D G M E N T

R. BANUMATHI, J.

6 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 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 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. 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 country-made
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 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 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:-

“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
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. 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:
5 “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 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 [pic]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 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 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 non-compliance 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 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 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 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 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 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 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 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
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.

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 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 non-compliance
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 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 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 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.

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 appellant-accused is at
liberty to move for bail, if he is so advised. On 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.
———————–
28

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