Code of Criminal Procedure, 1973 – s.313 – Penal Code, 1860 – s.302 r/w s.34 – Non-compliance of s.313 – Non-questioning on the twin incriminating circumstances to the appellant convicted u/s.302 r/w s. 34, IPC during his examination u/s.313, when the finding of common intention was based on the aforesaid twin incriminating circumstances, if caused material prejudice vitiating the trial qua him:
Held: Yes – Non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold that the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused – Examination of the appellant u/s.313 reveals that both the incriminating circumstances appearing against the appellant in the prosecution evidence viz., exhortation to do away with the lives of the deceased and others in his family and the evidence that the appellant had caught hold of the hands of the deceased to enable his brother-coaccused to stab him repeatedly with knife, were not directly or even indirectly put to him while being examined u/s.313 – The conclusion that the appellant had shared the common intention to commit murder of the deceased was based only on the aforesaid two incriminating circumstances which were not put to him while being questioned u/s.313 – There was no charge of commission of an offence u/s. 300, IPC, punishable u/s. 302, IPC, simplicitor against the appellant, he was charged thereunder with the aid of s.34, IPC – Thus, when the finding of common intention was based on the twin incriminating circumstances and when they were not put to the appellant while he was being questioned u/s.313, and when they ultimately culminated in his conviction u/s.302 with the aid of s.34, IPC, and when he was awarded with the life imprisonment, the appellant was materially prejudiced and it had resulted in blatant miscarriage of justice – The failure is not a curable defect and it is a patent illegality vitiating the trial qua the appellant – Appellant’s conviction cannot be sustained, acquitted – Impugned judgments set aside qua the appellant. [Paras 20, 21, 24, 26, 27]
Code of Criminal Procedure, 1973 – s.313 – Non-questioning/inadequate questioning on incriminating circumstances – Prejudice or miscarriage of justice – Onus to establish: Held: Onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination u/s. 313 is on the convict concerned. [Para 21]
Code of Criminal Procedure, 1973 – s.313 – Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) – s.313(5) – “actus curiae neminem gravabit” – Contention as regards the non-examination/inadequate examination u/s.313 causing material prejudice to the appellant was not appropriately raised and argued before the High Court and was raised for the first time before Supreme Court – Said contention if can be maintained at this stage:
Held: s.313 would reveal the irrecusable obligation coupled with duty on Court concerned to put the incriminating circumstances appearing in the prosecution evidence against accused concerned facing the trial providing him an opportunity to explain – SubSection (5) of Section 313 inserted under 2008 Amendment Act lends support to this view – Also, the act of court shall prejudice no one – In a charge for commission of a serious offence where extreme penalty alone is imposable in case the accused is found guilty, procedural safeguards ensuring protection of right(s) of accused must be followed and at any rate, in such cases when non-compliance of the mandatory procedure capable of vitiating trial qua the convict concerned is raised and revealed from records, irrespective of the fact it was not raised appropriately, it must be considered lest the byproduct of consideration of the case would result in miscarriage of justice – Being the Court existing for dispensation of justice, this Court is bound to consider and correct the mistake committed by the Court by looking into the question whether non-examination or inadequate examination of accused concerned caused material prejudice or miscarriage of justice. [Paras 15, 16]
Code of Criminal Procedure, 1973 – s.313 – Object: Held: s.313 embodies salutary principle of natural justice viz., audi alteram partem and empowering the Court to examine the accused thereunder is to give the accused concerned an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence – The general position is that if any incriminating circumstance, appearing against an accused in the prosecution evidence, is not put to him it should not be used against him and must be excluded from consideration – At the same time, it is a well-settled position that non-examination or inadequate examination u/s.313 on any incriminating circumstance, by itself, would not vitiate a trial qua the convict concerned unless it has resulted in material prejudice to him or in miscarriage of justice. [Para 11]
Practice and Procedure – Judgment not containing discussion on a particular point – Said point is to be prima facie assumed not to have been argued unless contrary is shown – Contention of the appellant as regards non-examination/inadequate examination u/s.313 causing material prejudice to him, if was argued before the High Court:
Held: Normally, it has to be presumed that all the arguments actually pressed at the hearing in the High Court were noticed and appropriately dealt with and if the judgment of the High Court does not contain discussion on a point, then that point should be assumed prima facie not to have been argued at the bar unless the contrary is specifically shown – In the present case, though grounds A to Z and AA to GG were taken in this appeal, there was absolute absence of any contention in any one of them to the effect that despite being pressed into, the contention as regards non-examination u/s. 313 was not taken into consideration and appropriately dealt with by the High Court – Hence, the conclusion can only be that it was not argued. [Para 12]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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