Supreme Court Laments Trial Judges Not Using Section 313(5) CrPC; Asks Judicial Academies To Take Notice

The Supreme Court recently opined that while recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers should take benefit of Section 313 (5) of CrPC, which will ensure that the chances of committing errors and omissions are minimized.

Section 313(5) CrPC says that 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.

"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"

While hearing a Criminal Appeal, the division bench of Justice Abhay S. Oka and Justice Rajesh Bindal observed:

“In 1951, while delivering the verdict in the case of Tara Singh v. State 1951 SCC OnLine SC 49, 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.”

The bench was hearing a criminal appeal filed against the judgement of conviction and order of sentence passed by the Trial Court dated August 27, 2003 and confirmed by the impugned judgment of the Delhi High Court, for the offences punishable under Section 302 and Section 120B of IPC.

For the offence under Section 302, the appellant was sentenced to undergo life imprisonment. The appellant was also convicted for the offence punishable under Section 307 read with Section 120B of IPC, for which he was sentenced to undergo rigorous imprisonment for 7 years.

Factual Matrix

The allegation against the appellant along with other 6 co-accused persons was that on October 1, 1995, around, 3:30 p.m., they conspired to criminally intimidate and commit the murder of PW3 and his relatives.

It was further alleged that on the abovementioned date and time, the accused entered the house of PW3 where he, along with his family members were residing.

The allegation was made that the other accused persons fired bullets from their revolovers and murdered the brother of the PW3 and injured PW3 and PW7.

Admittedly, the only allegation against the present appellant (accused no.2) was that while 6 other accused entered the house of PW3, the appellant was standing near the gate of the gallery with katta (countrymade handgun) in his hand.

Arguments

The Counsel appearing for the present appellant submitted before the Supreme Court that only PW5 deposed that the appellant was standing near the gate of the gallery with katta in his hand.

He further submitted that PW3 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 PW5.

The appellant’s Counsel argued 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 CrPC.

On the other hand, the Counsel appearing for the State contended that the appellant did not cross-examine PW5.

It was further submitted that the 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 of CrPC.

Court’s View

The Apex Court noted that there is no dispute that the only allegation against the appellant was that while six accused entered the house of PW3, the appellant was standing outside with a katta in his hand.

The Court further observed that the testimony of PW3 cannot be relied upon to implicate the appellant as he did not depose that the appellant was standing outside with a katta in his hand.

The Court noted:

“We have carefully perused the evidence of PW13. Though the High Court has observed that PW13 has ascribed a role to the appellant of standing outside with a katta in his hand, we find that PW13 has made no such statement in his evidence.”

It was further pointed by the Court that 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.

While relying upon of its own precedents, the Apex Court summarised the law laid down by it as follows:

1. 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.
2. 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.
3. The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused.
4. 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.
5. 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.
6. In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him.
7. 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.
8. 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.

The Court noted:

“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 PW5. 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.”

The Court opined that the considering the passage of time, 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,” the Court said.

Thus, the Court set aside the conviction and sentence of the appellant.

However, the Court observed that 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 Public Prosecutor as well as the 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,” the Court added.

Related - Section 313 CrPC - Written Statement Of Accused Has To Be Considered In The Light Of Prosecution Evidence : Supreme Court

Case Title: Raj Kumar @ Suman v. State (NCT of Delhi)

Citation : 2023 LiveLaw (SC) 434

Coram: Justice Abhay S. Oka and Justice Rajesh Bindal

Click Here to Read/Download Judgment