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SUPREME COURT OF INDIA
C.T. RAVIKUMAR, SANDEEP MEHTA, JJ.
Naresh Kumar – Appellant
Versus
State of Delhi – Respondent
Criminal Appeal No.1751 of 2017
Decided on : 08-07-2024
(A) Indian Penal Code, 1860 – Section 302/34 [Bharatiya Nyaya Sanhita, 2023 – Section 103 read with Section 3(5)] – Criminal Procedure Code, 1973 – Section 313 [Bhartiya Nagarik Suraksha Sanhita, 2023 – Section 351] – Murder – Common intention – Life sentence – Onus to establish prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during examination under Section 313, Cr.P.C., is on convict concerned – Where evidence of witnesses is recorded in presence of accused who had opportunity to cross examine them but did not cross examine them in respect of facts deposed, then, omission to put question to accused regarding evidence of such witnesses would not cause prejudice to such accused and could not be held as grounds vitiating trial qua convict concerned – When finding of common intention was based on twin incriminating circumstances and when they were not put to appellant while he was being questioned under Section 313, Cr.P.C., and when they ultimately culminated in his conviction under Section 302, IPC, with aid of Section 34, IPC, and when he was awarded with life imprisonment consequently, it can only be held that appellant was materially prejudiced and it had resulted in blatant miscarriage of justice – Incident in question occurred more than 29 years ago and appellant had already undergone incarceration more than 12 years – Impugned Judgment of trial Court and High Court set aside qua appellant – This judgment would not disturb conviction of other accused. (Paras 21, 22, 24, 26 and 27)
(B) Criminal Procedure Code, 1973 – Section 313 [Bhartiya Nagarik Suraksha Sanhita, 2023 – Section 351]- – Examination of accused – Court has to correct mistake it has done, rather than to ask affected party to seek his remedy elsewhere – In a charge for commission of a serious offence where extreme penalty alone is imposable in case accused is found guilty, procedural safeguards ensuring protection of right(s) of accused must be followed – Being the Court existing for dispensation of justice, this Court is bound to consider and correct mistake committed by Court by looking into question whether non-examination or inadequate examination of accused concerned caused material prejudice or miscarriage of justice. (Para 16)
Facts of the case:
Conviction of appellant under Section 302, IPC, was made with the aid of Section 34, IPC, and upon which he was awarded imprisonment for life. Conviction of appellant herein was confirmed under the impugned common judgment.
Findings of Court:
Appellant herein stands acquitted of the offences alleged against him. If his detention is not required in connection with any other case, he shall be released, forthwith.
Result : Appeal allowed.
JUDGMENT :
C.T. RAVIKUMAR, J.
1. Births of crimes and culprits concerned, occur together. Yet, under the criminal justice delivery system only on concluding findings on commission of the crime concerned in the affirmative, the question whether the accused is its culprit would arise. Culpability can be fixed, if at all it is to be fixed, on the accused upon conclusive proof of the same established by the prosecution only after following various procedural safeguards recognizing certain rights of an accused. Failure to comply with such mandatory procedures may even vitiate the very trial, subject to the satisfaction of conditions, therefor. Foremost among one such right is embedded in Section 313 of the Code of Criminal Procedure, 1973 (for short the ‘Cr.PC’). Though questioning under clause (a) of sub-Section (1) of Section 313, Cr.PC, is discretionary, the questioning under clause (b) thereof is mandatory. Needless to say, a fatal non-compliance in the matter of questioning under Clause (b) of sub-section (1) thereof, in case resulted in material prejudice to any convict in a criminal case the trial concerned, qua that convict should stand vitiated. This prelude becomes necessary as in the captioned appeal the main thrust of the argument advanced is founded on fatal, non-compliance in the matter of questioning under Section 313, Cr.PC, qua the appellant who is a life convict. We will dilate on this a little later.
2. The appellant, who was accused No.4 in Sessions Case No.3/97 is challenging the confirmation of his conviction under Section 302, IPC, with the aid of Section 34, IPC, under the impugned judgment in Criminal Appeal No.540/2000 dated 20.12.2016 passed by the High Court of Delhi. As per the prosecution, an argybargy over spilling of drops of water over the roof of the appellant’s house while Laxmi, the sister of the deceased-Arun Kumar was cleaning the chajja (parapet) of their house resulted in the accurst incident, where the said Arun Kumar lost his life on 14.06.1995 at 08.45 pm. The case of the prosecution is that enraged by the dropping of water over the roof, the wife of the appellant, namely, Meena, hurled filthy words at Laxmi. Then the appellant came out and he, too, started abusing. Thereupon, the deceased asked him to stop abusing his sister and then the appellant exhorted his brother Mahinder Kumar to come out and finish them. Soon, Mahinder came out with a knife and the appellant-Naresh Kumar caught hold of Arun Kumar and Mahinder stabbed on his chest repeatedly with the knife. The necroscopic evidence in this case consists of the oral testimony of PW-17, Dr. LK Baruah and the postmortem report Ext.PW7/A, which disclosed that the deceased had sustained the following antemortem injuries:
2. Incised wound size .3 cm x 0.5 cm.x? on the middle of chest situated 1.5 cm. Right to the mid line and below a line drawn between two nipples.
3. Two incised wounds size 1.3 cm. And other 1.5 cm. In the right epigeastric region.
4. Incised wounds left side lower part of chest 9 cm. Below left nipple size 1.4 cm x 2.3 cm.
5. Abrasion on the dorsom left forearm and hand
6. Abrasion seen below left eye.”
3. Taking note of the said necroscopic evidence corroborating the events unfolded through the oral testimonies of the eye-witnesses viz., Anil Kumar (PW-7), Smt. Prem Devi (PW-8), Sanjay (PW-20), who are respectively the brother, mother and one cousin of the deceased and Smt. Madhu (PW-19) and Anand Kumar (PW-22) besides the other evidences, the trial Court found that the homicidal death of Arun Kumar amounts to murder and culpability was fixed on Mahinder Kumar, the first accused. We make it clear that we are not going to make any observation in respect of Sri Mahinder Kumar in this appeal and reference about him was made solely for the purpose of disposing this appeal.
4. As noticed earlier, the conv
(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 hel....
Whenever a plea of non-compliance with Section 313 Cr.P.C. is raised, it is within powers of appellate court to examine and further examine the convict or counsel appearing for accused and the said a....
The main legal point established in the judgment is the importance of properly examining the accused under Section 313 of the CrPC to allow them to explain any circumstances appearing in the evidence....
The mandatory provision of Section 313 CrPC aims to afford the accused an opportunity to explain each and every circumstance and incriminating evidence against them, and failure to comply with this p....
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