Section 313 CrPC - Failure To Put Incrimination Circumstances To Accused Will Not Vitiate Trial If No Prejudice Is Caused : Supreme Court

Recently, the Supreme Court adjudicated upon the issue of whether, on account of not putting the incriminating circumstance to the accused persons, while recording their statements under Section 313 (Power to examine the accused) of the Code of Criminal Procedure, 1973 (Crpc), their conviction with the aid of Section 34 (Acts done by several persons in furtherance of common intention) of the Indian Penal Code, 1860, (IPC) stood vitiated.

The Bench, comprising Justices Hrishikesh Roy and Manoj Misra, observed:

“… the legal position that emerges, inter-alia, is that to enable an accused to explain the circumstances appearing in the evidence against him, all the incriminating circumstances appearing against him in the evidence must be put to him. But where there has been a failure in putting those circumstances to the accused, the same would not ipso facto vitiate the trial unless it is shown that its non-compliance has prejudiced the accused. Where there is a delay in raising the plea, or the plea is raised for the first time in this Court, it could be assumed that no prejudice had been felt by the accused.”

These findings were made by the Court while hearing a set of three appeals which were filed against the judgment and order of the High Court of Delhi. In its impugned order, the High Court affirmed the order of the Trial Court convicting and sentencing Sunil, Shri Krishan and Ravinder (appellants) under Sections 302/307/34 of the IPC.

Brief Background

The incident had its genesis in an altercation between two families i.e, Sri Krishan’s family on one side and Satpal’s family on the other. According to the prosecution case, after the altercation, Shri Krishan, his son Sunil, Babu Ram and Babu Ram’s son Ravinder (appellants) left the place while extending threats that they would teach Satpal and his supporters a lesson. Soon thereafter, Babu Ram, Shri Krishan, Ravinder and Sunil appeared on the roof of PW-2’s house and from there, on the instigation of Shri Krishan, Sunil and Ravinder, Babu Ram fired shots at the supporters of Satpal resulting in death of two persons and injuries to as many as 26 persons.

One of the pleas taken by appellant’s counsel that the trial of the appellants suffers from a fundamental defect in as much as the incriminating circumstance about the appellants exhorting/instigating Babu Ram to fire shots at the two deceased/public/injured, was never put to the appellants while recording their statements under Section 313 of the Crpc.

Court’s Findings

At the outset, the Court examined some of the questions that were put to the accused appellants to elicit their response, under Section 313 CrPC, to the incriminating circumstances appearing against them in the prosecution evidence.

The Court then went on to cite several judgments that had discussed the law relating to examination of an accused under Section 313 CrPC. These included Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648, wherein it was held:

“Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.”

Pertinently, the Court also placed its reliance upon Nar Singh v. State of Haryana, (2015) 1 SCC 496, where it was observed, “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.”

At the end, the Court also produced the relevant paragraphs of Satyavir Singh Rathi, ACP & Others, (2011) 6 SCC 1. In the said case, inter-alia, the Court observed:

“These observations proceed on the principle that if an objection as to the Section 313 statement is taken at the earliest stage, the court can make good the defect and record an additional statement as that would be in the interest of all but if the matter is allowed to linger on and the objections are taken belatedly it would be a difficult situation for the prosecution as well as the accused.”

In this backdrop, the Court noted that though it could not find that the incriminating circumstance pertaining to appellants exhorting the main accused Babu Ram was specifically put to the appellants, they were aware of the prosecution case against them, which delineated their role as the ones who exhorted the main accused Babu Ram to fire gunshots.

Furthermore, appellants were throughout represented by their counsel and had cross-examined the prosecution witnesses, yet they raised no such plea, either before the trial court or the High Court, it can safely be assumed that the appellants had suffered no prejudice on that count.

In view of the same, Court was of the view that the conviction of the appellants is not vitiated for alleged non-compliance of the provisions of Section 313 CrPC.

Case Title: Sunil And ors Versus State Of NCT of Delhi, Criminal Appeal No.688 Of 2011

Citation : 2023 LiveLaw (SC) 815; 2023INSC840

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