Page 1 REPORTABLE

IN 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 ….Appellant

Versus

State of Haryana ….Respondent

J U D G M E N T

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

Page 2 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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Page 3 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

3

Page 4 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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Page 5 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

5

Page 6 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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Page 7 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:-

7

Page 8 “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

8

Page 9 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.

9

Page 10 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

10

Page 11 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

11

Page 12 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

12

Page 13 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

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Page 14 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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Page 15 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

15

Page 16 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

16

Page 17 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

17

Page 18 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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Page 19 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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Page 20 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

20

Page 21 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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Page 22 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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Page 23 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

23

Page 24 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 circum-

stances 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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Page 25 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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Page 26 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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Page 27 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

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Page 28 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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