RAJ KUMAR @ SUMAN versus STATE (NCT OF DELHI)

Citation: [2023] 5 S.C.R. 754 · Decided: 11-05-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 5 S.C.R.
   [2023] 5 S.C.R. 754
754
RAJ KUMAR @ SUMAN
v.
STATE (NCT OF DELHI)
(Criminal Appeal No. 1471 of 2023)
MAY 11, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Code of Criminal Procedure, 1973 – s.313 – Power to examine
the accused – Law summarized.
Code of Criminal Procedure, 1973 – s.313 – Non-compliance
of – Omission made while questioning the accused u/s.313, effect
of – Appellant was convicted u/ss.302, 307 r/w 120-B, IPC and
sentenced accordingly –Held: The only alleged incriminating
circumstance against the appellant is in the evidence of PW5, who
stated that the appellant was standing with a katta in his hand outside
the premises where the offence took place–However, this was not
put to him in his statement u/s.313– Therefore, he had no opportunity
to explain the said circumstance which was the only basis of his
conviction– Hence, serious prejudice was caused to him –
Conviction of the appellant was vitiated – Impugned judgment of
the High Court set aside – Conviction and sentence of the appellant
set aside.
Code of Criminal Procedure, 1973 – s.313(5)– Benefit of –
Assistance 
of 
Prosecutor 
and 
Defence 
Counsel 
in
preparing relevant questions–Held: While recording the statement
u/s.313, in cases involving large number of prosecution witnesses,
Judicial Officers advised to take benefit of s.313(5) which will ensure
that the chances of committing errors and omissions are minimized–
However, scant attention is paid to this provision – The National and
the State Judicial Academies to take a note of this situation.
Allowing the appeal, the Court
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
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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
RAJ KUMAR @ SUMAN v. STATE (NCT OF DELHI)
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[2023] 5 S.C.R.
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 

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