IMPORTANT POINTS
(1) Court must ordinarily eschew material circumstances not put to accused from consideration while dealing with case of particular accused.
(2) Examination of accused – Court is empowered to take help of Prosecutor and defence counsel in preparing relevant questions.

JUDGMENT :

Abhay S. Oka, J.

1. Leave granted.

FACTUAL ASPECTS

2. Appellant (accused no.2) was convicted by the Sessions Court by the Judgment dated 27th August 2003 for the offences punishable under Section 302 read with Section 120B of the Indian Penal Code (for short, ‘IPC’). For the offence under Section 302, the appellant was sentenced to undergo life imprisonment. He was also convicted for the offence punishable under Section 307 read with Section 120B of IPC, for which he was sentenced to undergo rigorous imprisonment for 7 years.

3. The allegation against this accused, along with one Vimal (since deceased) and five others, was that on 01st October 1995, around 03:30 pm, they conspired to criminally intimidate and commit the murder of Jawahar Lal (PW-3) and his relatives. The allegation is that PW-3 was running his own cable TV network, and the accused wanted him to stop the said cable TV network. The allegation of the prosecution is that on 01st October 1995 at about 03:30 pm, the accused entered the house of PW-3 Jawahar Lal where he, along with his family members, were residing. Accused nos.4 and 5 fired bullets from their revolvers at Omi Devi, mother of PW-3 and Chander Shekhar (deceased – brother of PW-3). Accused no.3 and deceased Vimal attacked Chander Shekhar (deceased) and Omi with daggers and knives. PW-3 and PW-7 suffered serious injuries. As noted earlier, Chander Shekhar died. We may note that admittedly the only allegation against the present appellant (accused no.2) is that while 6 other accused entered the house of PW-3, the appellant was standing near the gate of the gallery with katta (country-made handgun) in his hand. By the impugned judgment, the High Court has confirmed the conviction of the appellant.

SUBMISSIONS

4. The learned counsel appearing for the appellant pointed out that only PW-5 Ved Prakash deposed that the appellant was standing near the gate of the gallery with katta in his hand. However, PW-3, in the cross-examination, accepted that he had not seen the present appellant on the day of the incident and his name was told to him by PW-5. Learned counsel submitted that though the High Court, in paragraph 84 of the impugned judgment, has recorded a finding that even PW-13 had seen the appellant, in fact, PW-13 has not deposed anything about the appellant.

5. He submitted that the only circumstance appearing in the evidence against the appellant that he was standing outside near the gate of the gallery with a katta was not put to him in his statement under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’). He submitted that this argument was specifically canvassed before the High Court, which finds a place in the written submissions filed on behalf of the appellants, but the High Court did not consider it. He relied upon decisions of this Court in the case of Ranvir Yadav v. State of Bihar, (2009) 6 SCC 595; Sukhjit Singh v. State of Punjab, (2014) 10 SCC 270; Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108; and Samsul Haque v. State of Assam, (2019) 18 SCC 161 . He submitted that as a result of the failure of the Trial Court to put the only circumstance appearing against the appellant during his examination under Section 313 of CrPC, grave prejudice has been caused to the appellant resulting in failure of justice.

6. Learned counsel representing the respondent-State submitted that the appellant did not cross-examine PW-5. He relied upon a decision of this Court in the case of Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State through Central Bureau of Investigation, (2011) 6 SCC 1 . He submitted that in this decision, this Court held that the objection regarding the omission or defect in recording the statement under Section 313, CrPC must be raised at the earliest so that the defect can be cured. He submitted that the said contention was raised 16 years after the passing of the judgment by the Trial Court. He would, therefore, submit that