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SUPREME COURT OF INDIA
T. S. Thakur, R. Banumathi, JJ.
Nar Singh – Appellant
Versus
State of Haryana – Respondent
CRIMINAL APPEAL NO.2388 OF 2014 (Arising out of S.L.P. (Crl.) No.8852 of 2013)
Decided On : 11-11-2014
(2009) 4 SCC 200; (1993) 3 SCC 208; (2010) 10 SCC 439; (1984) 4 SCC 116; (1992) 3 SCC 700; (2000) 8 SCC 740; AIR 1956 SC 400; AIR 1974 SC 1256; (2010) 9 SCC 747; (2003) 12 SCC 528; (2012) 2 SCC 648 – Relied upon
(2002) 7 SCC 419 – Distinguished
(b) Code of Criminal Procedure, 1973 – Section 313 – Not compliance – Issue raised before Appellate court – Cannot automatically result in acquittal of accused – Appellate court can also put those incriminating circumstances to counsel of the accused and his answers would be deemed to be answers of the accused – Trial court and appellate court bound to put such questions to accused or his counsel. (Para 23, 26)
(1973) 2 SCC 793; (2001) 10 SCC 372 – Relied upon
(c) Code of Criminal Procedure, 1973 – Section 313 r/w section 386 – All relevant questions not put to accused by the trial court – Accused showing prejudice – Appellate court, u/s 386, can remand the case for examination u/s 313 or order re-trial of the case from the stage at which the prosecution was closed – (Para 27, 28, 30)
(2008) 16 SCC 328; (1980) 1 SCC 363 – Relied upon
(d) Consatitution of India – Article 21 – Right to speedy trial – Failure to trial court to put FSL report to accused u/s 313 CrPC – Prejudicing accused – In custody for about eight years – Point raised for the first time before Supreme Court – Neither the accused nor the victim of the offence should suffer for laches or omission of the court – Accused not entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313. (Para 33, 34)
(1992) 1 SCC 225 – Referred
Facts of the case:
On 6.03.2005, Rajbir, the deceased, went to sleep in the street on a cot at about 7.30 p.m. and Daya Nand (PW-7), his brother, also went to sleep in his house at about 9.00 p.m.
At 11.00 P.M., Daya Nand heard the sound of vomiting of his brother and he came out and found his brother Rajbir crying in pain. PW-7 called his father Chander Bhan and both of them noticed injuries on the forehead of Rajbir with profuse bleeding. PW-7 went to call the doctor but the doctor refused to accompany him. When Daya Nand returned back, Rajbir had already succumbed to injuries.
Trial court convicted the appellant under Section 302 IPC and Section 25(1B) of the Arms Act and sentenced him to undergo imprisonment as aforesaid. On appeal, the High Court affirmed the conviction for both the offences
Finding of the Court:
Failure of trial court has to be rectified or corrected by the appellate court.
Result: Appeal disposed of. Matter remitted back to the trial court for proceeding afresh from the stage of recording statement of the accused under Section 313 Cr.P.C.
Key Points: - Section 313(1)(b) CrPC is mandatory and requires the court to question the accused on all incriminating circumstances after prosecution evidence (!) (!) (!) - Non-compliance with Section 313(1)(b) does not automatically entitle the accused to acquittal unless prejudice is shown (!) (!) (!) - Appellate court can examine the accused or counsel, and may direct remand for fresh trial from the stage of Section 313 examination (!) (!) (!)
JUDGMENT
R. BANUMATHI, J.
Leave granted.
2. This appeal is directed against the judgment dated 30.08.2012 passed in Crl. Appeal D-960-DB/2006 by the High Court of Punjab and Haryana dismissing the appeal of accused-appellant thereby confirming the conviction of the appellant under Section 302, IPC and sentence of rigorous imprisonment for life and a fine of Rs.20,000/-with default clause and conviction under Section 25 (1B) of the Arms Act, 1959 and sentence of rigorous imprisonment for three years and a fine of Rs.10,000/-with default clause as imposed by the trial court.
3. Briefly stated, case of the prosecution is that on 6.03.2005, Rajbir went to sleep in the street on a cot at about 7.30 p.m. and Daya Nand (PW-7) also went to sleep in his house at about 9.00 p.m. At 11.00 P.M., Daya Nand heard the sound of vomiting of his brother and he came out and found his brother Rajbir crying in pain. PW-7 called his father Chander Bhan and both of them noticed injuries on the forehead of Rajbir with profuse bleeding. PW-7 went to call the doctor but the doctor refused to accompany him. When Daya Nand returned back, Rajbir had already succumbed to injuries. Law was set in motion by PW-7 and FIR was registered under Section 302, IPC. PW-14 had taken up the investigation and inquest was conducted on the body of the deceased Rajbir. Dr. J.K. Bhalla (PW-10) conducted autopsy on the body of deceased Rajbir and a country-made bullet was seized from the occipital area of the brain of deceased Rajbir. Dr. Bhalla opined that the death was due to injury to the brain and he issued Ex P-13-post mortem certificate. Site plan of the scene of occurrence was prepared and material objects were seized. The appellant-accused was arrested on 14.03.2005 and based on his confession statement, a pistol was recovered behind a water tank in the house of the appellant-accused. The bullet (chambered for .315” & .303” caliber firearms) and country-made pistol (chambered for . 315” & .303” cartridges) were sent for the Ballistic Expert opinion. The Ballistic Expert opined that the country-made bullet (chambered for .315” & .303” caliber firearms) had been fired from the above-said country-made pistol and not from any other firearm. On receipt of the Ballistic Expert opinion and on completion of the investigation, charge sheet was filed against the appellant under Section 302 IPC, and Section 25(1B) of the Arms Act.
4. To bring home the guilt of the accused, the prosecution has examined PWs 1 to 14 and exhibited documents and material objects. Upon consideration of the evidence, trial court convicted the appellant under Section 302 IPC and Section 25(1B) of the Arms Act and sentenced him to undergo imprisonment as aforesaid. On appeal, the High Court affirmed the conviction for both the offences and imposed sentence of imprisonment on the appellant. Being aggrieved, the appellant has preferred this appeal by special leave.
5. Being based on circumstantial evidence, prosecution relied on the following circumstances to establish the guilt of the accused:-
(i) Motive – evidence of PW-8, mother of the deceased, who had spoken about an incident that had happened 18 years ago when Rajbir-the deceased and Hoshiar Singh– father of the accused were bringing 'boorada' from village Satnali in a mechanised cart and that the said cart overturned on the way and Hoshiar Singh died in the accident due to which the appellant and his family had a grudge against Rajbir, as they felt that Rajbir had killed his father. She further stated that about four years back, the accused threatened Rajbir that he would avenge the murder of his father;
(ii) Evidence of PW-11 Ranbir Singh, who deposed that on 06.03.2005 when he came out of his house at about 11.00 p.m., he saw the appellant Nar Singh running in the street.
PW-11 also claims to have heard the sound of fire-arm shot;
(iii) Disclosure statement of the appellant which led to the recovery of country-made pistol (chambered for .315” an
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