LexNARESH KUMAR versus STATE OF DELHI
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[2024] 7 S.C.R. 178 : 2024 INSC 464 Naresh Kumar v. State of Delhi (Criminal Appeal No.1751 of 2017) 08 July 2024 [C.T. Ravikumar* and Sandeep Mehta, JJ.] Issue for Consideration Non-questioning the appellant convicted u/s.302 r/w s.34, Penal Code, 1860 on the twin incriminating circumstances during his examination u/s.313, Code of Criminal Procedure, 1973, if caused material prejudice to him vitiating the trial qua him. Headnotes† 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-co- accused 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 * Author [2024] 7 S.C.R. 179 Naresh Kumar v. State of Delhi 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 – Sub- Section (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, 180 [2024] 7 S.C.R. Digital Supreme Court Reports irrespective of the fact it was not raised appropriately, it must be considere
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