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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

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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 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  

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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  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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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  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  

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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 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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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 appellant-

accused 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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