Raj Kumar @ Suman vs State (NCT of Delhi)

HELD: 1.1 The law consistently laid down by this Court can be summarized as: (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. [Para 16][767-D-G; 768-A-C]

Tara Singh v. State 1951 SCC OnLine SC 49; Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489; S. Harnam Singh v. State (Delhi Admn.) (1976) 2 SCC 819; Samsul Haque v. State of Assam (2019) 18 SCC 161 – relied on.

2.1 The only circumstance brought on record against the present appellant is in the evidence of PW5, 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 PW5 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. 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. The Trial Court has not reproduced the submissions made by the counsel appearing for the accused. [Para 10][760-F-H; 761-A-B]

2.2 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. [Para 11][761-C]

2.3 Only based on the version of PW5 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 PW5. The appellant was not confronted during his examination under section 313 of CrPC with the only allegation of the prosecution against him. A serious prejudice was caused to the appellant. 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. 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, 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. The appellant has already undergone incarceration for a period of 10 years and

4 months. The conviction of the appellant stands vitiated. In the facts of the case, the option of remand will be unjust. The conviction and sentence of the appellant is set aside.The impugned judgment of the High Court is also set aside. [Paras 18-20, 23][769-C-H; 770-A-B; 771-B]

Vahitha v. State of Tamil Nadu 2023 SCC OnLine SC

174 – distinguished.

Ranvir Yadav v. State of Bihar (2009) 6 SCC 595 : [2009] 7 SCR 653; Sukhjit Singh v. State of Punjab (2014) 10 SCC 270 : [2014] 10 SCR 608; Maheshwar Tigga v. State of Jharkhand (2020) 10 SCC 108; Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State through Central Bureau of Investigation (2011) 6 SCC 1 : [2011] 6 SCR 138 – referred to.