Docid # IndiaLawLib/1603201

(2023) 300 DLT 678 : (2023) 8 SCALE 848 : (2023) 5 SCR 754
SUPREME COURT OF INDIA
DIVISION BENCH
( Before : Abhay S. Oka and Rajesh Bindal, JJ. )

RAJ KUMAR @ SUMAN — Appellant

Vs.

STATE (NCT OF DELHI) — Respondent

Criminal Appeal No. 1471 of 2023; [Arising Out of S.L.P.(Crl.)No.11256 of
2018]
Decided on : 11-05-2023

Criminal Procedure Code, 1973 (CrPC) - Section 313 -

Penal Code, 1860 (IPC) - Section 302 read with 120B -
Murder - Criminal Trial - Examination of accused -
Failure to question question an accused under Section
313 of the CrPC can result in the trial being vitiated - If
there is prejudice caused to the accused resulting in
failure of justice, the trial will vitiate - It is the duty of
the Trial Court to put each material circumstance
appearing in the evidence against the accused
specifically, distinctively and separately - Material
circumstance means the circumstance or the material
on the basis of which the prosecution is seeking his
conviction - Object of examination of the accused
under Section 313 is to enable the accused to explain
any circumstance appearing against him in the
evidence - Court must ordinarily eschew material
circumstances not put to the accused from
consideration while dealing with the case of the
particular accused - Failure to put material
circumstances to the accused amounts to a serious
irregularity - It will vitiate the trial if it is shown to
have prejudiced the accused - Conviction and sentence
is set aside - Appeal allowed.
Cases Referred
• Asraf Ali v. State of Assam, (2008) 16 SCC 328 : (2010) 4 SCC (Cri)
278
• Dwarkanath Varma v. Emperor, AIR 1933 PC 124 at p. 130 : 1933
SCC OnLine PC 11
• Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108
• Ranvir Yadav v. State of Bihar, (2009) 6 SCC 595
• S. Harnam Singh v. State (Delhi Admn.), (1976) 2 SCC 819 : 1976
SCC (Cri) 324
• Samsul Haque v. State of Assam, (2019) 18 SCC 161
• Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v.
State through Central Bureau of Investigation, (2011) 6 SCC 1
• Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC
793 : 1973 SCC (Cri) 1033
• Sukhjit Singh v. State of Punjab, (2014) 10 SCC 270
• Tara Singh v. State, 1951 SCC OnLine SC 49
• Vahitha v. State of Tamil Nadu, 2023 SCC OnLine SC 174
Counsel for Appearing Parties
Mr. Sumeet Verma, Advocate, Mr. Sumit Kumar, Advocate, Mr.
Mahinder Pratap Singh, Advocate and Mr. Vinay Kumar, Advocate, for
the Appellant; Mr. Chirag M. Shroff, Advocate, Mr. Shailendra P.Singh,
Advocate and Mr. Rishabh Shivhare, Advocate, for the Respondent.

JUDGMENT

Abhay S. Oka, J. - Leave granted.

FACTUAL ASPECTS
2. Appellant (accused no.2) was convicted by the Sessions Court by
the Judgment dated 27th August 2003 for the offences punishable
under Section 302 read with Section 120-B of the Indian Penal Code
(for short, 'IPC'). For the offence under Section 302, the appellant
was sentenced to undergo life imprisonment. He was also convicted
for the offence punishable under Section 307 read with Section 120-
B of IPC, for which he was sentenced to undergo rigorous
imprisonment for 7 years.
3. The allegation against this accused, along with one Vimal (since
deceased) and five others, was that on 01st October 1995, around
03:30 pm, they conspired to criminally intimidate and commit the
murder of Jawahar Lal (PW-3) and his relatives. The allegation is
that PW-3 was running his own cable TV network, and the accused
wanted him to stop the said cable TV network. The allegation of the
prosecution is that on 01st October 1995 at about 03:30 pm, the
accused entered the house of PW-3 Jawahar Lal where he, along
with his family members, were residing. Accused nos.4 and 5 fired
bullets from their revolvers at Omi Devi, mother of PW-3 and
Chander Shekhar (deceased - brother of PW-3). Accused no.3 and
deceased Vimal attacked Chander Shekhar (deceased) and Omi with
daggers and knives. PW-3 and PW-7 suffered serious injuries. As
noted earlier, Chander Shekhar died. We may note that admittedly
the only allegation against the present appellant (accused no.2) is
that while 6 other accused entered the house of PW-3, the appellant
was standing near the gate of the gallery with katta (country-made
handgun) in his hand. By the impugned judgment, the High Court
has confirmed the conviction of the appellant.
SUBMISSIONS
4. The learned counsel appearing for the appellant pointed out
that only PW-5 Ved Prakash deposed that the appellant was
standing near the gate of the gallery with katta in his hand. However,
PW-3, in the cross-examination, accepted that he had not seen the
present appellant on the day of the incident and his name was told to
him by PW-5. Learned counsel submitted that though the High
Court, in paragraph 84 of the impugned judgment, has recorded a
finding that even PW-13 had seen the appellant, in fact, PW-13 has
not deposed anything about the appellant.
5. He submitted that the only circumstance appearing in the
evidence against the appellant that he was standing outside near the
gate of the gallery with a katta was not put to him in his statement
under Section 313 of the Code of Criminal Procedure, 1973 (for
short, 'CrPC'). He submitted that this argument was specifically
canvassed before the High Court, which finds a place in the written
submissions filed on behalf of the appellants, but the High Court did
not consider it.
He relied upon decisions of this Court in the case of Ranvir
Yadav v. State of Bihar, (2009) 6 SCC 595; Sukhjit Singh v.
State of Punjab, (2014) 10 SCC 270; Maheshwar Tigga v.
State of Jharkhand, (2020) 10 SCC 108; and Samsul Haque
v. State of Assam, (2019) 18 SCC 161. He submitted that as a
result of the failure of the Trial Court to put the only circumstance
appearing against the appellant during his examination under
Section 313 of CrPC, grave prejudice has been caused to the
appellant resulting in failure of justice.
6. Learned counsel representing the respondent-State submitted
that the appellant did not cross-examine PW-5. He relied upon a
decision of this Court in the case of Satyavir Singh Rathi,
Assistant Commissioner of Police & Ors. v. State through
Central Bureau of Investigation, (2011) 6 SCC 1. He
submitted that in this decision, this Court held that the objection
regarding the omission or defect in recording the statement under
Section 313, CrPC must be raised at the earliest so that the defect can
be cured. He submitted that the said contention was raised 16 years
after the passing of the judgment by the Trial Court. He would,
therefore, submit that, at this stage, this objection cannot be
sustained. He submitted that the very fact that the said objection
was not raised at any time earlier shows that there is no prejudice
caused to the appellant due to the failure of the Court to put the only
circumstance against the appellant to him while recording his
statement under Section 313, CrPC.
OUR VIEW
 7. We have considered the submissions. There is no dispute that
the only allegation against the appellant was that while six accused
entered the house of PW-3, the appellant was standing outside with
a katta in his hand. In paragraph 84 of the impugned judgment, the
High Court has observed that the evidence of PW-3, as regards the
appellant, creates some doubt. However, it was held that the
evidence of PW-5 and PW-13 is clear and consistent as regards his
involvement. We have, therefore, perused the evidence of the said
three prosecution witnesses. PW-3 Jawahar Lal deposed about the
entry of 6 other accused into his house at about 03:30 pm on 01st
October 1995. He did not depose that the appellant was standing
outside with a katta in his hand. In further examination-in-chief, he
stated that in his statement recorded by the police, he has wrongly
mentioned that the accused-Rajinder Kumar was guarding the spot.
He stated that it was the appellant who was guarding the spot. The
High Court has expressed doubt about the version of PW-3
concerning the involvement of the present appellant. The reason
given by the High Court is that PW-3 also stated that on the day of
the incident, he did not see the appellant, but his name was told to
him by PW-5 Ved Prakash. Therefore, the testimony of PW-3 cannot
be relied upon to implicate the appellant.
8. We have carefully perused the evidence of PW-13. Though the
High Court has observed that PW-13 has ascribed a role to the
appellant of standing outside with a katta in his hand, we find that
PW-13 has made no such statement in his evidence.
9. Thus, what remains is the evidence of PW-5. All that he stated
in his examination-in-chief was that he saw Raj Kumar standing at
the gate of the gallery with a katta in his hand. He identified the
appellant in the Court.
10. Hence, the only circumstance brought on record against the
present appellant is in the evidence of PW-5, who stated that the
appellant was standing outside near the gate of the gallery with a
katta in his hand. No overt act was attributed to him. There is a long
statement of the appellant under Section 313 of CrPC in which as
many as 42 questions were put to the appellant. Question no.13 is
about what PW-5 deposed. Admittedly, it was not put to the
appellant that it is brought on record that he was standing outside
near the gate of the gallery with a katta in his hand. It is true that the
answer given by him to every question is 'I don't know'. If all the
circumstances put to the appellant in his statement under Section
313 CrPC are carefully perused, any person of ordinary intelligence
will get the impression that none of the prosecution witnesses has
stated anything against him. That is why one cannot find fault with
the appellant when he gave standard answers to every question as
nothing adverse against him was put to him. We may note here that
in paragraph 13 of the written submissions by the appellant before
the High Court, a specific contention was raised that the only
circumstance appearing against the appellant was not put to him in
the statement under Section 313 of CrPC. It is not in dispute that this
part of the argument is not considered by the High Court. We may
also note that the Trial Court has not reproduced the submissions
made by the learned counsel appearing for the accused.
11. Thus, we will have to proceed on the footing that the only
alleged incriminating circumstance appearing against the appellant
in the evidence produced by the prosecution has not been put to him
in his statement under Section 313 of CrPC and, therefore, he had no
opportunity to explain the said circumstance. Moreover, his
conviction is based only on this circumstance.
12. Therefore, we will have to consider the effect of the aforesaid
omission on the part of the Trial Court. The law on this aspect is no
longer res integra. Apart from the decisions relied upon by the
learned counsel representing the parties, there are other important
decisions on this aspect. The first relevant judgment is of a Bench of
four Hon'ble Judges of this Court in the case of Tara Singh v.
State, 1951 SCC OnLine SC 49. The Court considered the
provision of Section 342 of the Code of Criminal Procedure, 1898
(for short, 'CrPC of 1898'). Section 313 of CrPC and Section 342 of
CrPC of 1898 are in pari materia. In paragraph 18, this Court held
thus :
'18. It is important therefore that an accused should be properly
examined under Section 342 and, as their Lordships of the Privy
Council indicated in Dwarkanath Varma v. Emperor [Dwarkanath
Varma v. Emperor, AIR 1933 PC 124 at p. 130 : 1933 SCC
OnLine PC 11] , if a point in the evidence is considered important
against the accused and the conviction is intended to be based upon
it, then it is right and proper that the accused should be questioned
about the matter and be given an opportunity of explaining it if he so
desires. This is an important and salutary provision and I cannot
permit it to be slurred over. I regret to find that in many cases scant
attention is paid to it, particularly in the Sessions Courts. But
whether the matter arises in the Sessions Court or in that of the
Committing Magistrate, it is important that the provisions of Section
342 should be fairly and faithfully observed.' (emphasis added)
Again in paragraph 23, this Court held thus:
'23. Section 342 requires the accused to be examined for the
purpose of enabling him 'to explain any circumstances appearing in
the evidence against him'. Now it is evident that when the Sessions
Court is required to make the examination under this section, the
evidence referred to is the evidence in the Sessions Court and the
circumstances which appear against the accused in that court. It is
not therefore enough to read over the questions and answers put in
the Committing Magistrate's Court and ask the accused whether he
has anything to say about them. In the present case, there was not
even that. The appellant was not asked to explain the circumstances
appearing in the evidence against him but was asked whether the
statements made before the Committing Magistrate and his answers
given there were correctly recorded. That does not comply with the
requirements of the section.'
The second important decision on this aspect is the decision of a
Bench of three Hon'ble Judges of this Court. This is a decision in the
case of Shivaji Sahabrao Bobade & Anr. v. State of
Maharashtra, (1973) 2 SCC 793. In paragraph 16 of the decision,
this Court examined the issue of non-compliance with the
requirements of Section 342 of CrPC of 1898. Paragraph 16 reads
thus:
'16. The discovery of incriminating materials pursuant to
confessions made by the accused constitutes the third category of
evidence. Obviously, the confessions are inadmissible but the
discoveries are, provided they are pertinent to the guilt of the
accused. So far as Accused 2 is concerned, his statement resulted in
the discovery of a knife (Vide Panchnama, Ext. 13). Of course, knives
were discovered long ago and not now but this knife lay buried and
was recovered by the accused from a pit in the corner of a wall of his
house. There was human blood on the blade of the knife, MO 5/1
according to the chemical analyst's report. The second accused's
clothes also were picked up by him pursuant to his statement. He
had worn a shirt and pants on the day of occurrence and PW 13, a
neighbour deposes that the second accused had come to him at
about 6 p.m. on the Monday when Hariba died and had mentioned
to him that since his own house was locked he might be permitted to
keep his clothes in the witnesses house. Thereafter he left his clothes
under an empty khokha from where he himself took them out when
he later came in the company of the police. There are blood-stains
on the clothes and it is found by the chemical examiner that the
blood on the pants are of the same blood group as that of the
deceased. When the second accused was asked under Section 342,
CrPC about the report of the chemical examiner noticing blood
stains on the shirt, MO 5/2 and of human blood on the blade of the
knife, MO 5/1, he merely answered, 'I do not know'. He also
described as false the fact of his recovering the clothes and the knife.
Bald denial notwithstanding, we are inclined to believe, with the
learned Judges of the High Court, that the knife and the shirt have
been identified as his and since he had recovered them, thereby
making the police discover the fact, there was incriminating
inference available against the said accused. We may notice here a
serious omission committed by the trial Judge and not noticed by
either court. The pants allegedly worn at the time of the attack by the
second accused has stains of blood relatable to the group of the
deceased. This circumstance binds him to the crime a little clear but
it is unfortunate that no specific question about this circumstance
has been put to him by the Court. 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, CrPC, the
omission has not been shown to have caused prejudice to the
accused. In the present case, however, the High Court, though not
the trial court has relied upon the presence of blood on the pants of
the blood group of the deceased. We have not been shown what
explanation the accused could have offered to this chemical finding
particularly when we remember that his answer to the question
regarding the human blood on the blade of the knife was 'I do not
know'. Counsel for the appellants could not make out any intelligent
explanation and the 'blood' testimony takes the crime closer to the
accused. However, we are not inclined to rely over much on this
evidentiary circumstance, although we should emphasise how this
inadvertance of the trial court had led to a relevant fact being argued
as unavailable to the prosecution. Great care is expected of Sessions
Judges who try grave cases to collect every incriminating
circumstance and put it to the accused even though at the end of a
long trial the Judge may be a little fagged out.' (emphasis added)
13. Then we come to the decision of this Court in the case of S.
Harnam Singh v. State (Delhi Admn.), (1976) 2 SCC 819. In
paragraph 22, this Court held thus : '22. Section 342 of the Code of
Criminal Procedure, 1898, casts a duty on the court to put, at any
enquiry or trial, questions to the accused for the purpose of enabling
him to explain any circumstances appearing in the evidence against
him. It follows as a necessary corollary therefrom that each material
circumstance appearing in evidence against the accused is required
to be put to him specifically, distinctly and separately. Failure to do
so amounts to a serious irregularity vitiating the trial if it is shown to
have prejudiced the accused. If the irregularity does not, in fact,
occasion a failure of justice, it is curable under Section 537, of the
Code.' (emphasis added)
 14. Then we come to a decision in the case of Samsul
Haque(Supra) relied upon by the learned counsel for the appellant.
In paragraphs 21 to 23, this Court held thus :
'21. The most vital aspect, in our view, and what drives the nail in
the coffin in the case of the prosecution is the manner in which the
court put the case to Accused 9, and the statement recorded under
Section 313 CrPC. To say the least it is perfunctory.
22. It is trite to say that, in view of the judgments referred to by
the learned Senior Counsel, aforesaid, the incriminating material is
to be put to the accused so that the accused gets a fair chance to
defend himself. This is in recognition of the principles of audi
alteram partem. Apart from the judgments referred to aforesaid by
the learned Senior Counsel, we may usefully refer to the judgment of
this Court in Asraf Ali v. State of Assam [Asraf Ali v. State of
Assam, (2008) 16 SCC 328 : (2010) 4 SCC (Cri) 278] . The
relevant observations are in the following paragraphs : (SCC p. 334,
paras 21-22)
' 21. Section 313 of the Code casts a duty on the court to put in an
enquiry or trial questions to the accused for the purpose of enabling
him to explain any of the circumstances appearing in the evidence
against him. It follows as necessary corollary therefrom that each
material circumstance appearing in the evidence against the accused
is required to be put to him specifically, distinctly and separately and
failure to do so amounts to a serious irregularity vitiating trial, if it is
shown that the accused was prejudiced.
22. The object of Section 313 of the Code is to establish a direct
dialogue between the Court and the accused. If a point in the
evidence is important against the accused, and the conviction is
intended to be based upon it, it is right and proper that the accused
should be questioned about the matter and be given an opportunity
of explaining it.
Where no specific question has been put by the trial court on an
inculpatory material in the prosecution evidence, it would vitiate the
trial. Of course, all these are subject to rider whether they have
caused miscarriage of justice or prejudice. This Court also expressed
a similar view in S. Harnam Singh v. State (Delhi Admn.) [ S.
Harnam Singh v. State (Delhi Admn.), (1976) 2 SCC 819 :
1976 SCC (Cri) 324] while dealing with Section 342 of the
Criminal Procedure Code, 1898 (corresponding to Section 313 of the
Code). Non-indication of inculpatory material in its relevant facets
by the trial court to the accused adds to the vulnerability of the
prosecution case. Recording of a statement of the accused under
Section 313 is not a purposeless exercise.'
23. While making the aforesaid observations, this Court also
referred to its earlier judgment of the three-Judge Bench in Shivaji
Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao
Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973
SCC (Cri) 1033] , which considered the fallout of the omission to
put to the accused a question on a vital circumstance appearing
against him in the prosecution evidence, and the requirement that
the accused's attention should be drawn to every inculpatory
material so as to enable him to explain it. Ordinarily, in such a
situation, such material as not put to the accused must be eschewed.
No doubt, it is recognised, that where there is a perfunctory
examination under Section 313 CrPC, the matter is capable of being
remitted to the trial court, with the direction to retry from the stage
at which the prosecution was closed [Shivaji Sahabrao Bobade
v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri)
1033].' (emphasis added)
15. Learned counsel for the respondent also relied upon a decision
of this Court in the case of Vahitha v. State of Tamil Nadu,
2023 SCC OnLine SC 174. This case does not deal with the
consequences of the omission made while questioning the accused
under Section 313 of CrPC. This deals only with a contingency where
evidence of the prosecution witnesses goes unchallenged. Now we
come to the decision of this Court in the case of Satyavir
Singh(Supra) relied upon by the learned counsel for the respondent.
The decision holds that the challenge to the conviction based on
non-compliance with Section 313 of CrPC for the first time in the
appeal cannot be entertained unless the accused demonstrates that
prejudice has been caused to him. If an objection is raised at the
earliest, the defect can be cured by recording an additional
statement of the concerned accused. The sum and substance of the
said decision is that such a long delay can be a factor in deciding
whether the trial is vitiated. Moreover, what is binding is the
decision of the larger Bench in the case of Shivaji Sahabrao
Bobade(Supra), which lays down that if there is prejudice caused to
the accused resulting in failure of justice, the trial will vitiate.
16. The law consistently laid down by this Court can be
summarized as under:
(i) It is the duty of the Trial Court to put each material
circumstance appearing in the evidence against the accused
specifically, distinctively and separately. The material circumstance
means the circumstance or the material on the basis of which the
prosecution is seeking his conviction;
(ii) The object of examination of the accused under Section 313 is
to enable the accused to explain any circumstance appearing against
him in the evidence;
(iii) The Court must ordinarily eschew material circumstances not
put to the accused from consideration while dealing with the case of
the particular accused;
 (iv) The failure to put material circumstances to the accused
amounts to a serious irregularity. It will vitiate the trial if it is shown
to have prejudiced the accused;
(v) If any irregularity in putting the material circumstance to the
accused does not result in failure of justice, it becomes a curable
defect. However, while deciding whether the defect can be cured,
one of the considerations will be the passage of time from the date of
the incident;
(vi) In case such irregularity is curable, even the appellate court
can question the accused on the material circumstance which is not
put to him; and
(vii) In a given case, the case can be remanded to the Trial Court
from the stage of recording the supplementary statement of the
concerned accused under Section 313 of CrPC.
(viii) While deciding the question whether prejudice has been
caused to the accused because of the omission, the delay in raising
the contention is only one of the several factors to be considered.
17. Now, we will have to apply the principles enunciated by this
Court to the facts of this case. The High Court has reproduced the
charge framed on 04th July 1998 against the accused, which reads
thus :
'Charge
6. The charge framed against all the accused by the order dated
4th July 1998 by the trial Court was as under :
(i) That on or before 1st October 1995 at around 3.30 pm at Delhi
A-1 to A-6 along with Vimal (since dead) agreed to criminally
intimidate and commit the murder of Jawahar Lal (PW-3) and his
relatives on account of the failure of PW-3 to stop his TV cable
network in the area of Paschimpuri thereby committing the offence
of criminal conspiracy punishable under Section 120B IPC.
(ii) That at House No.618/3, Paschimpuri on 1st October 1995, in
pursuance of the aforementioned conspiracy, A-4 and A-5 fired
bullets from their respective revolvers on Smt. Omi Devi and
Chander Shekhar whereas Vimal and A-3 attacked Chander Shekhar
and Omi with their respective dagger and knife and committed their
murders and thus all of them had committed an offence punishable
under Section 302 read with 120B IPC.
(iii) All of them pursuant to the criminal conspiracy attempted to
commit the murder of PW-3 by firing bullets from their revolvers on
both PW-3 and PW-7 due to which both of them received dangerous
injuries and thereby all of them committed an offence punishable
under Section 307 read with 120B IPC.' (emphasis added)
 18. In paragraph 7 of the High Court Judgment, it is noted that a
separate charge under Section 452 read with 120-B of IPC was
framed against all accused except the present appellant. Thus, the
charge as framed against the appellant was of being a party to
criminal conspiracy. There is also a charge that all the accused fired
bullets from their revolver. Only based on the version of PW-5
regarding the appellant's presence with a weapon outside the
premises where the offence took place, the involvement of the
appellant has been held as proved. There is absolutely no other
evidence against him. This is not a case where there are several
incriminating circumstances appearing against the appellant in the
evidence adduced by the prosecution. This is a case where there is
only a solitary circumstance appearing in the evidence against the
appellant. The prosecution examined 37 witnesses. The material
against the appellant is in the form of one sentence in the evidence
of PW-5. As mentioned earlier, if we read 42 questions put to the
appellant in his statement under Section 313 of CrPC, any accused
having ordinary intelligence will carry an impression that there is
absolutely no material against him. The appellant was not
confronted during his examination under section 313 of CrPC with
the only allegation of the prosecution against him. This is how, on
facts, we find that a serious prejudice was caused to the appellant.
19. The incident is of 1995. It is not clear whether this aspect was
argued before the Trial Court as the Trial Court has not reproduced
the submissions of the counsel for the appellant. However, before
the High Court, it was certainly canvassed as it forms a part of the
written submissions.
20. Even assuming that the defect or irregularity was curable, the
question is whether today, the appellant-accused can be called upon
to explain the said circumstance. More than 27 years have passed
since the date of the incident. Considering the passage of time, we
are of the view that it will be unjust now at this stage to remit the
case to the Trial Court for recording further statement of the
appellant under Section 313 of CrPC. In the facts of the case, the
appellant cannot be called upon to answer something which has
transpired 27 years back. There is one more aspect of the matter
which persuaded us not to pass an order of remand. The said factor
is that the appellant has already undergone incarceration for a
period of 10 years and 4 months.
21. Before we part with this judgment, we must take a note of sub-
section (5) added to Section 313 of CrPC w.e.f. 31st December 2009.
Sub-section (5) reads thus :
'313. Power to examine the accused.-
(1) ... ... ...
(2) ... ... ... ...
 (3) ... ... ... ...
(4) ... ... ... ...
(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.'
In many criminal trials, a large number of witnesses are examined,
and evidence is voluminous. It is true that the Judicial Officers have
to understand the importance of Section 313. But now the Court is
empowered to take the help of the prosecutor and the defence
counsel in preparing relevant questions. Therefore, when the Trial
Judge prepares questions to be put to the accused under Section 313,
before putting the questions to the accused, the Judge can always
provide copies of the said questions to the learned Public Prosecutor
as well as the learned defence Counsel and seek their assistance for
ensuring that every relevant material circumstance appearing
against the accused is put to him. When the Judge seeks the
assistance of the prosecutor and the defence lawyer, the lawyers
must act as the officers of the Court and not as mouthpieces of their
respective clients. While recording the statement under Section 313
of CrPC in cases involving a large number of prosecution witnesses,
the Judicial Officers will be well advised to take benefit of subsection
(5) of Section 313 of CrPC, which will ensure that the chances of
committing errors and omissions are minimized.
22. In 1951, while delivering the verdict in the case of Tara
Singh(Supra), this Court lamented that in many cases, scant
attention is paid to the salutary provision of Section 342 of CrPC of
1898. We are sorry to note that the situation continues to be the
same after 72 years as we see such defaults in large number of cases.
The National and the State Judicial Academies must take a note of
this situation. The Registry shall forward a copy of this decision to
the National and all the State Judicial Academies.
23. In the circumstances, we are of the view that the conviction of
the appellant stands vitiated. In the facts of the case, the option of
remand will be unjust. Accordingly, we allow the appeal and set
aside the conviction and sentence of the appellant under the
Judgment and Order dated 27th August 2003 passed by the learned
Additional Sessions Judge, Delhi, in Sessions Case No.9 of 2000.
Consequently, the impugned judgment of the High Court is also set
aside. We make it clear that both judgments are set aside only
insofar as the appellant is concerned. We, accordingly, direct that
the respondent shall forthwith set the appellant at liberty unless he
is required to be detained in connection with any other case.