NAR SINGHversusSTATE OF HARYANA

                       [2014] 12 S.C.R. 218

A                           NAR SINGH
                                 v.
                       STATE OF HARYANA
                (Criminal Appeal No. 2388 of 2014)
                       NOVEMBER 11, 2014
B
            [T.S. THAKUR AND R. BANUMATHI, JJ.]

        Code of Criminal Procedure, 1973:

c       s.313 - Non-compliance of mandatory provisions of
  s.313 whether vitiative of trial and conviction of the appellant
  - Held: The provisions of s.313 are mandatory and cast a
  duty on the court to afford an opportunity to the accused to
  explain each and every circumstance and incriminating
0 evidence against him - The examination of accused u/
  s.313(1)(b) is not a mere formality- s.313 merely prescribes
  a procedural safeguard for an accused - Objection as to
  s.313 statement should be taken at the earliest stage - Any
  omission on the part of the Court to question the accused on
E any incriminating circumstance would however not ipso facto
  vitiate the trial, unless some material prejudice is shown to
  have been caused to the accused - Insofar as non-
  compliance of mandatory provisions of s.313, it is an error
  essentially committed by the Sessions Judge - Since justice
  suffers in the hands of the Court, the same can be corrected
F or rectified in the appeal.

        s. 386 - Power of appellate court - Scope of - Discussed.

        Disposing of the appeal, the Court
G       HELD: 1. The object of Section 313(1)(b) Cr.P.C. is to
    bring the substance of accusation to the ·accused to
    enable him to explain each and every circumstance
    appearing in the evidence against him. The provisions of

H                                218
        NAR SINGH v. STATE OF HARYANA                   219

this section are mandatory and cast a duty on the court        A
to afford an opportunity to the accused to explain each
and every circumstance and incriminating evidence
against him. The statutory provision of Section 313,
Cr.P.C. is based on the rules of natural justice for an
accused, who must be made aware of the circumstances           B
being put against him so that he can give a proper
explanation to meet that case. If an objection as to
Section 313 Cr.P.C. statement is taken at the earliest
stage, the Court can make good the defect and record
additional statement of the accused as that would be in        c
the interest of all. When objections as to defective
Section 313 Cr.P.C. statement is raised in the appellate
court, then difficulty arises for the prosecution as well as
the accused. [Paras 11, 16) [228-B; 230-H; 231-A-B]
     State of Punjab v. Hari Singh . & Ors. 2009 D
(2) SCR 470:(2009) 4 SCC200; Usha K. Pillai v. Raj K.
Srinivas & Ors. 1993 (3) SCR 467:(1993) 3 SCC 208;
Paramjeet Singh alias Pamma v. State of Uttarakhand 201 O
(11) SCR 1064:(2010) 10 SCC 439; Basava R. Patil & Ors.
v. State of Karnataka & Ors. 2000 (3) Suppl. SCR 658: E
(2000) 8 sec 740 - relied on.

     2. The question whether a trial is vitiated or not
depends upon the degree of the error and the accused
must show that non-compliance of Section 313 Cr.P.C.           F
has materially prejudiced him or is likely to cause
prejudice to him. Merely IJecause of defective
questioning under Section 313 Cr.P.C., it cannot be
inferred that any prejudice had been caused to the
accused, even assuming that some incriminating                 G
circumstances in the prosecution case had been left out.
When such objection as to omi~sion to put the question
under Section 313 Cr.P.C. is raised by the accused in the
appellate court and prejudice is also shown to have been
caused to the accused, then the appellate court may
                                                               H
    220      SUPREME COURT REPORTS          [2014) 12 S.C.R.


A examine the convict or call upon the counsel for the
  accused to show what explanation the accused has as
  regards the circumstances established against him but
  not put to him under Section 313 Cr.P.C. and the said
  answer can be taken into consideration. [Paras 20, 23]
B [232-G-H; 234-C-D]

      Avtar Singh & Ors. v. State of Punjab 2002 (2) Suppl.
   SCR 482: (2002) 7 SCC 419; Wasim Khan v. The State of
  Uttar Pradesh 1956 SCR 191:AIR 1956 SC 400; Bhoor
C Singh & Anr. v. State of Punjab AIR 1974 SC 1256; Santosh
  Kumar Singh v State through CBI 2010 (13) SCR 901:(2010)
  9 SCC 747; State of Punjab v Hari Singh & Ors. 2009 (2)
  SCR 470: (2009) 4 SCC 200; Ku/dip Singh & Ors. V. State
  of Delhi (2003) 12 SCC 528; Alister Anthony Pareira v. State
  of Maharashtra 2012 (1) SCR 145: (2012) 2 SCC 648;
D Shivaji Sahabrao Bobade & Anr. vs. State of Maharashtra
  1974 (1) SCR 489:(1973) 2 SCC 793; State (Delhi.
  Administration) vs. Dharampal 2001 (4) Suppl. SCR 448:
  (2001) 10 sec 372 - relied on.

E     3. Section 386 Cr.P.C. deals with power of the
  appellate court. As per sub-clause (b)(i) of Section 386
  Cr.P.C., the appellate court has power to order retrial of
  the case by a court of competent jurisdiction subordinate
  to such appellate court. If all the relevant questions were
F not put to accused by the trial court and when the
  accused has shown that prejudice was caused to him,
  the appellate court has power to remand the case to
  examine the accused again under Section 313 Cr.P.C.
  and may direct remanding the case again for re-trial of the
  case from that stage of recording of statement under
G Section 313 Cr.P.C. and the same cannot be said to be
  amounting to filling up lacuna in the prosecution case.
  [Para 27] [236-F-H]

          4. In the instant case, FSL R.eport was relied upon
H
         NAR SINGH v. STATE OF HARYANA                 221


both by the trial court as well as by the High Court. The A
objection as to the defective 313 Cr.P.C. statement was
not raised in the trial court or in the High Court and the
omission to put the question under Section 313 Cr.P.C.,
and prejudice caused to the accused was raised before
this Court for the first time. The appellant is in custody . B
for about eight years. While the right of the accused to
speedy trial is a valuable one, Court has to subserve the
interest of justice keeping in view the right of the victim's  J.
                                                                1

family and the society at large. The· accused is nol. /
entitled for acquittal on the ground of non-compliance of c
mandatory provisions of Section 313 Cr.P.C. No doubt,
the appellant was prejudiced on account of omission to
put the question as to the opinion of Ballistic Expert
which was relied upon by the courts below. Trial court
should have been more careful in framing the questions 0
and in ensuring that all material evidence and
incriminating circumstances were put to the accused.
However, omission on the part of the Court to put
questions under Section 313 Cr.P.C. cannot enure to the
benefit of the accused. The conviction of the appellant E
under Section 302 IPC and Section 25 (IB) of the Arms
Act is set aside. The matter is remitted back to the trial
court for proceeding with the matter afresh from the stage
of recording statement of the accused under Section 313
Cr.P.C. [Paras 32, 34 and 35] [240-B·G]
                                                              F
  · Asraf Ali vs. State of Assam                 2008 (10)
 SCR 1115:(2008) 16 SCC 328; Ganeshmal Jashraj vs.
Government of Gujarat & Anr. 1980 (1) SCR 1114: (1980) 1
SCC 363; Abdul Rehman Antulay and Ors. vs. R.S. Nayak
And Anr. 1991 (3) Suppl. SCR 325:(1992) 1 SCC 225 - G
relied on.
                    Case Law Reference:
 2009 (2) SCR 470              Relied on         Para 6
                                                              H
 1993 (3) SCR 467              Relied on         Para 10
          222      SUPREME COURT REPORTS              [2014] 12 S.C.R.


 A         2010 (11) SCR 1064             Relied on          Para 12
           2000 (3) Suppl. SCR 658       Relied on           Para 13
            2002 (2) Suppl. SCR 482 Relied on                Para 14
           1956 SCR 191                   Relied on          Para 17
 B
           AIR 1974 SC 1256               Relied on          Para 17


l -
 -..,..
           2010 (13) SCR 901
           2009 (2) SCR 470
                                         Relied on
                                          Relied on
                                                             Para 18
                                                             Para 21
 c
           (2003) 12 sec 528             Relied on           Para 21
           2012 (1) SCR 145               Relied on          Para 22
           1974 (1) SCR 489              Relied on           Para 24
 D         2001 (4) Suppl. SCR 448        Relied on          Para 25
           2008 (10). SCR 1115            Relied on          Para 28
           1980 (1) SCR 1114              Relied on          Para 29

 E         1991 (3) Suppl. SCR 325 Relied on                 Para 31
              CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
          No. 2388 of 2014.

        From the Judgment & Order dated 30.08.2012 of the High
 F Court of Punjab and Haryana at Chandigarh in CRA-D-960-DB
   of 2006.

              Sushil Kumar Jain, Khushboo Jain, A. Vikram, Abhinav
          Gupta, Pratibha Jain for the Appellant.
 G             Narender Hooda; AAG, Bano Deswal, Monika Gusain for
          the Respondent.

                The Judgment of the Court was delivered by

 H              R. BANUMATHI, J.1. Leave granted.
          NAR SINGH v. STATE OF HARYANA                      223
                 [R. BANUMATHI, J.]
      2. This appeal is directed against the judgment dated          A
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         B
clause and conviction under Section 25 (1 B) 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          C
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    D
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,          E
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          F
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          G
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         H
    224      SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A   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(1 B) of the Arms Act.
B
       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(11;!) of the Arms Act and sentenced him to undergo
C 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.

D        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
E
         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
F        grudge against Rajbir, as they felt that Rajbir had killed his
         father. She further stated ttiat about four years back, the
         accused threatened Rajbir that he would avenge the
       · murder of his father;

G         (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;
H
         NAR SINGH v. STATE OF HARYANA                         225
                [R. BANUMATHI, J.]
    (iii) Disclosure statement of the appellant which led to the       A
    recovery of country-made pistol (chambered for .315" and
    .303" caliber firearms) from behind the water tank of
    appellant's house;

    (iv) Exhibit P-13 and evidence of PW-10, Dr. J.K. Bhalla,          B
    who conducted post mortem on the body of the deceased
    Rajbir and recovery of a bullet from occipital area of the
    brain of deceased Rajbir; and

    (v) Opinion of the Ballistic Expert (Ext. P-12) that the
    country-made bullet (chambered for .315" & .303" caliber           C
    firearms) had been fired from the country-made pistol
    (chambered for .315 & .303 cartridges) recovered in
    pursuance of the disclosure statement of the accused and
    not from any other firearm.
                                                                       D
      Trial court as well as the High Court held that the above
circumstances are proved by the prosecution and that they form
a complete chain establishing guilt of the accused resulting in
conviction of the appellant. While doing so, trial court relied upon
the Forensic Science Laboratory Report (FSL) (Ex P-12) as a            E
vital piece of evidence against the appellant. The High Court
also relied upon FSL report as a material evidence to sustain
the conviction of the appellant.

     6. Mr. Sushil Kumar Jain, learned Senior Counsel for the
appellant, contended that none of the circumstances relied upon        F
by the courts below had been established beyond reasonable
doubt and those circumstances, either cumulatively or
individually, were insufficient to establish the guilt of the
accused. Learned Senior Counsel mainly contended that the
only incriminating circumstantial evidence against the appellant       G
was Ex P-12 FSL report and the same was not put to the
appellant while he was being questioned under Section 313 of
the Criminal Procedure Code. It was submitted that Section 313
Cr.P .C. makes it mandatory to put all the incriminating evidence
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    226       SUPREME COURT REPORTS               [2014) 12 S.C.R.


A and circumstances to the accused and Ex P-12 FSL report,
  which is the basis for conviction of the appellant, has not been
  put to the accused and non-questioning of the accused as to
  the vital piece of evidence is fatal to the prosecution case and
  vitiates the conviction. Reliance was placed upon State of
B Punjab v. Hari Singh & Ors., (2009) 4 SCC 200.

       7. Mr. Narender Hooda, learned Addi. Advocate General
  appearing for the State of Haryana, submitted that all the
  circumstances against the appellant were established by the
C prosecution and learned courts below recorded concurrent
  findings as to the guilt of the accused. Learned counsel
  contended that non-questioning of accused as to Ex P 12 FSL
  report and expert opinion dwing questioning under Section 313
  Cr.P.C. by itself will not vitiate the trial and the accused has to
  establish the prejudice caused to him. It was submitted that
D omission to put the FSL report and expert opinion to the
  appellant under Section 313 Cr.P.C. and that prejudice being
  caused to the appellant was neither raised in the trial court nor
  before the High Court and it is not open to the appellant to raise
  such a plea in this Court for the first time.
E
       8. As main thrust of argument of the appellant is on the
  question of non-compliance of Section 313 Cr.P.C., we do not
  propose to consider the appeal on merits, except on the
  important question viz. whether non-compliance of the
F mandatory provisions of Section 313 Cr.P.C. vitiates the trial
  and conviction of the appellant.

         9. The power to examine the accused is provided in
    Section 313 Cr.P.C. which reads as under:-

G         "313. Power to examine the accused.- (1) In every
          inquiry or trial, for the purpose of enabling the accused
          personally to explain any circumstances appearing in the
          evidence against him, the Court-

          (a) may at any stage, without previously warning the
H
         NAR SINGH v. STATE OF HARYANA                        227
                [R. BANUMATHI, J.]
    accused put such questions to him as the Court considers          A
    necessary;

    (b) shall, after the witnesses for the prosecution have been
    examined and before he is called on for his defence,
    question him generally on the case:
                                                                      B
    Provided that in a summons-case, where the Court has
    dispensed with the personal attendance of the accused,
    it may also dispense with his examination under clause (b).

    (2). No oath shall be administered to the accused when            c
    he is examined under sub- section (1 ).

    (3). The accused shall not render himself liable to
    punishment by refusing to answer such questions, or by
    giving false answers to them.
                                                                      D
    (4). The answers given by the accused may be taken into
    consideration in such inquiry or trial, and put in evidence
    for or against him in any other inquiry into, or trial for, any
    other offence which such answers may tend to show he
    has committed.                                                    E

    (5). The Court may take help of Pro.secular and Defence
    Counsel in preparing relevant questions which are to be
    put to the accused and the Court may permit filing of written
    statement by the accused as sufficient compliance of this
                                                                      F
    section."

     10. There are two kinds of examination under Section 313
Cr.P.C. The first under Section 313 (1) (a) Cr.P.C. relates to
any stage of the inquiry or trial; while the second under Section
313 (1) (b) Cr.P.C. takes place after the prosecution witnesses       G
are examined and before the accused is called upon to enter
upon his defence. The former is particular and optional; but the
latter is general and mandatory. In Usha K. Pillai v. Raj K.
Srinivas & Ors., (1993) 3 SCC 208, this Court held that the
Court is empowered by Section 313 (1) clause (a) to question          H
     228       SUPREME COURT REPORTS                [2014] 12 S.C.R.


A    the accused at any stage of the inquiry or trial; while Section
     313(1) clause (b) obligates the Court to question the accused
     before he enters his defence on any circumstance appearing
     in prosecution evidence against him.

         11. The object of Section 313 (1)(b) Cr.P.C. is to bring the
 8
    substance of accusation to the accused to enable the accused
    to explain each and every circumstance appearing in the
    evidence against him. The provisions of this section are
    mandatory and cast a duty on the court to afford an opportunity
    to the accused to explain each and every circumstance and
  C incriminating evidence against him. The examination of
    accused under Section 313 (1)(b) Cr.P.C. is not a mere
    formality. Section 313 Cr.P.C. prescribes a procedural
    safeguard for an accused, giving him an opportunity to explain
    the facts and circumstances appearing against him in. the
· D evidence and this opportunity is valuable from the standpoint
    of the accused. The real importance of Section 313 Cr.P.C. lies
    in that, it imposes a duty on the Court to question the accused
    properly and fairly so as to bring home to him the exact case
    he will have to meet and thereby, an opportunity is given to him
  E to explain any such point.

        12. Elaborating upon the importance of a statement under
   Section 313 Cr.P.C., in Paramjeet Singh alias Pamma v.
   State of Uttarakhand, (2010) 10 SCC 439 (para 22), this Court
 F has held as under:

           "Section 313 CrPC is based on the fundamental principle
           of fairness. The attention .of the accused must specifically
           be brought to inculpatory pieces of evidence to give him
           an opportunity to offer an explanation if he chooses to do
 G         so. Therefore, the court is under a legal obligation to put
           the incriminating circumstances before the accused and
           solicit his response. This provision is mandatory in nature
           and casts an imperative duty on the court and confers a
           corresponding right on the accused to have an opportunity
 H         to offer an explanation for such incriminatory material
         NAR SINGH v. STATE OF HARYANA                       229
                [R. BANUMATHI, J.]

    appearing against him. Circumstances which were not put          A
    to the accused in his examination under Section 313
    CrPC cannot be used against him and have to be
    excluded from consideration." (vide Sharad Birdichand
     Sarda v. State of Maharashtra(1984) 4 SCC 116 and
     State of Maharashtra v. Sukhdev Singh (1992) 3 SCC              B
   .·700.

    13. In Basava R. Patil & Ors. v. State of Kamataka & Ors.,
(2000) 8 SCC 740, this Court considered the scope of Section
313 Cr.P.C. and in paras (18) to (20) held as under:-
                                                                     c
    "18. What is the object of examination of an accused under
    Section 313 of the Code? The section itself declares the
    object in explicit language that it is "for the purpose of
    enabling the accused personally to explain any
    circumstances appearing in the evidence against him". In         D
    Jai Dev v. State of Punjab (AIR 1963 SC 612)
    Gajendragadkar, J. (as he then was) speaking for a three-
    Judge Bench has focussed on the ultimate test in
    determining whether the provision has been fairly complied
    with. He observed thus:                                          E

    "The ultimate test in determining whether or not the accused
    has been fairly examined under Section 342 would be to
    enquire whether, having regard to all the questions put to
    him, he did get an opportunity to say what he wanted to
                                                                     F
    say in respect of prosecution case against him. If it
    appears that the examination of the accused person was
    defective and thereby a prejudice has been caused to him,
    that would no doubt be a serious infirmity."

          19. Thus it is well settled that the provision is mainly   G
    intended to benefit the accused and as its corollary to
    benefit the court in reaching the final conclusion.

          20. At the same time it should be borne in mind that
    the provision is not intended to nail him to any position,
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    230       SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A         but to comply with the most salutary principle of natural
          justice enshrined in the maxim audi alteram partem. The
          word "may" in clause (a) of sub-section (1) in Section 313
          of the Code indicates, without any doubt, that even if the
          court does not put any question under that clause the
B         accused cannot raise any grievance for it. But if the court
          fails to put the needed question under clause (b) of the sub-
          section it would result in a handicap to the accused and
          he can legitimately claim that no evidence, without affording
          him the opportunity to explain, can be used against him. It
c         is navy well settled that a circumstance about which the
          accused was not asked to explain cannot be used against
          him."

       14. Main contention of the appellant is that since the
  material evidence Ex-P12 and Ballistic Expert opinion was not
D put to him in his statement under Section 313 Cr.P.C., it must
  be completely excluded from consideration and barring the
  same, there is no other evidence to sustain the conviction and
  reliance was placed upon Avtar Singh & Ors. v. State of
  Punjab, (2002) 7 SCC 419.
E
       15. In Avtar Singh's case, when the accused were
  examined under Section 313 Cr.P.C., the essence of
  accusation, particularly the possession of goods was not
  brought to their notice. It was also noticed that the possibility
F of the accused persons being labourers of the truck was not
  ruled out by evidence. Avtar Singh's case was rendered on
  consideration of several peculiar factual aspects of that case
  and it does not lay down the law of universal application as it
  had been decided on its own facts.

G      16. Undoubtedly, the importance of a statement under
  Section 313 Cr.P.C., insofar as the accused is concerned, can
  hardly be minimised. The statutory provision is based on the
  rules of natural justice for an accused, who must be made
  aware of the circumstances being put against him so that he
H can give a proper explanation to meet that case. If an objection
         NAR SINGH v. STATE OF HARYANA                        231
                [R. BANUMATHI, J.]

as to Section 313 Cr.P.C. statement is taken at the earliest          A
stage, the Court can make good the defect and record
additional statement of the accused as that would be in the
interest of all. When objections as to defective Section 313
Cr.P.C. statement is raised in the appellate court, then difficulty
arises for the prosecution as well as the accused. Wheri the          B
trial court is required to act in accordance with the mandatory
provisions of Section 313 Cr.P.C., failure on the part of the trial
court to comply with the mandate of the law, in our view, cannot
automatically enure to the benefit of the accused. Any omission
on the part of the Court to question the accused on any               c
incriminating circumstance would not ipso facto vitiate the trial,
unless some material prejudice is shown to have been caused
to the accused. Insofar as non-compliance of mandatory
provisions of Section 313 Cr.P.C., it is an error essentially
committed by the learned Sessions Judge. Since justice suffers        0
in the hands of the Court, the same has to be corrected or
rectified in the appeal.

     17. So far as Section 313 Cr.P.C. is concerned,
undoubtedly, the attention of the accused must specifically be
brought to inculpable pieces of evidence to give him an               E
opportunity to offer an explanation, if he chooses to do so. A
three-Judge Bench of this Court in Wasim Khan v. The State
of Uttar Pradesh, AIR 1956 SC 400; and Bhoor Singh & Anr.
v. State of Punjab, AIR 1974 SC 1256 held that every error or
omission in compliance of the provisions of Section 342 of the        F
old Cr.P.C. does not necessarily vitiate trial. Th·e accused must
show that some prejudice has been caused or was likely to
have been caused to him.

     18. Observing that omission to put any material                  G
circumstance to the accused does not ipso facto vitiate the trial
and that the accused must show prejudice and that miscarriage
of justice had been sustained by him, this Court in Santosh
Kumar Singh v State through CBI, (2010) 9 SCC 747 (Para
92), has held as under:
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    232       SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A          "... the facts of each case have to be examined but the
          broad principle is that all incriminating material
          circumstances must be put to an accused while recording
          his statement under Section 313 of the Code, but if any
          material circumstance has been left out that would not ipso
B         facto result in the exclusion of that evidence from
          consideration unless it could further be shown by the
          accused that prejudice and miscarriage of justice had
          been sustained by him .. ."

          19. In Paramjeet Singh alias Pamma v State of
C Uttarakhand (supra), this Court has held as under:-

          "Thus, it is evident from the above that the provisions of
          Section 313 Cr.P.C. make it obligatory for the court to
          question the accused on the evidence and circumstances
D         against him so as to offer the accused an opportunity to
          explain the same. But, it would not be enough for the
          accused to show that he has not been questioned or
          examined on a particular circumstance, instead, he must
          show that such non-examination has actually and materially
E         prejudiced him and has resulted in the failure of justice. In
          other words, in the event of any inadvertent omission on
          the part of the court to question the accused on an
          incriminating circumstance cannot ipso facto vitiate the trial
          unless it is shown that some material prejudice was
F
          caused to the accused by the omission of the court."

       20. The question whether a trial is vitiated or not depends
  upon the degree of the error and the accused must show that
  non-compliance of Section 313 Cr.P.C. has materially
  prejudiced him or is likely to cause prejudice to him. Merely
G because of defective questioning under Section 313 Cr.P.C.,
  it cannot be inferred that any prejudice had been caused to the
  accused, even assuming that some incriminating ··
  circumstances in the prosecution case had been left out. When
  prejudice to the accused is alleged, it has to be shown that
H
         NAR SINGH v. STATE OF HARYANA                      233
                [R. BANUMATHI, J.]
accused has suffered some disability or detriment in relation       A
to the safeguard given to him under Section 313 Cr.P.C. Such
prejudice should also demonstrate that it has occasioned failure
of justice to the accused. The burden is upon the accused to
prove that prejudice has been caused to him or in the facts and
circumstances of the case, such prejudice may be implicit and       B
the Court may draw an inference of such prejudice. Facts of
each case have to be examined to determine whether actually
any prejudice has been caused to the appellant due to omission
of some incriminating circumstances being put to the accused.

     21. We may refer to few judgments of this Court where this
                                                                    c
Court has held that omission to put the question under Section
313 Cr.P.C. has caused prejudice to the accused vitiating the
conviction. In State of Punjab v Hari Singh & Ors. (2009) 4
sec 200, question regarding conscious possession of
narcotics was not put to the accused when he was examined           D
under Section 313 Cr.P.C. Finding that question relating to
conscious possession of contraband was not put to the
accused, this Court held that the effect of such omission vitally
affected the prosecution case and this Court affirmed the
acquittal. .In Ku/dip Singh & Ors. v State of Delhi (2003) 12       E
SCC 528, this Court held. that when important incriminating
circumstance was not put to the accused during his
examination under Section 313 Cr.P.C., prosecution cannot
place reliance on the said piece of evidence.
                                                                    F
     22. We may also refer to other set of decisions where in
the facts and circumstances of the case, this Court held that
no prejudice or miscarriage of justice has been occasioned to
the accused. In Santosh Kumar Singh v State thr. CBI (supra),
it was held that on the core issues pertaining to the helmet and    G
the ligature marks on the neck which were put to the doctor,
the defence counsel had raised comprehensive arguments
before the trial court and also before the High Court and the
defence was, therefore, alive to the circumstances against the
appellant and that no prejudice or miscarriage of justice had
                                                                    H
    234       SUPREME COURT REPORTS                    (2014] 12 S.C.R.


A been occasioned. In Alister Anthony Pareira v. State of
  Maharashtra (2012) 2 SCC 648, in the facts and
  circumstances, it was held that by not putting to the appellant
  expressly the chemical analysers report and the evidence of
  the doctor, no prejudice can be said to have been caused to
B the appellant and he had full opportunity to say what he wanted
  to say with regard to the prosecution evidence and that the High
  Court rightly rejected the contention of the appellant-accused
  in that regard.

C     23. When such objection as lo omission to put the question
  under Section 313 Cr.P.C. is raised by the accused in the
  appellate court and prejudice is also shown to have been
  caused to the accused, then what are the courses available to
  tbe appellate court? The appellate court may examine the
  convict or call upon the counsel for the accused to show what
D explanation the accused has as regards the circumstances
  established against him but not put to him under Section 313
  Cr.P.C. and the said answer can be taken into consideration.

        24. In Shivaji Sahabrao Bobade & Anr. vs. State of
E Maharashtra (1973) 2 SCC 793, this Court considered the
  fa,llout of the omission to put a question to the accused on vital
  circumstance appearing against him and this Court has held
  that the appellate court can question the counsel for the accused
  as regards the circumstance omitted to be put to the accused
F and in para 16 it was held as under:-

           " ... It is trite law, nevertheless fundamental, that the
          prisoner's attention should be drawn to every inculpatory
          material so as to enable him to explain it. This is the basic
          fairness of a criminal trial and failures in this area may
G         gravely imperil the validity of the trial itself, if consequential
          miscarriage of justice has flowed. However, where such
          an omission has occurred it does not ipso facto vitiate the
          proceedings and prejudice occasioned by such defect
          must be established by the accused. In the event of
H         evidentiary material not being put to the accused, the Court
        NAR SINGH v. STATE OF HARYANA                         235
               [R. BANUMATHI, J.]
    must ordinarily eschew such material from consideration.         A
    It is also open to the appellate Court to call upon the
    counsel for the accused to show what explanation the
    accused has as regards the circumstances established
    against him but not put to him and if the accused is unable
    to offer the appellate Court any plausible or reasonable         s
    explanation of such circumstances. the Court may assume
    that no acceptable answer exists and that even if the
    accused had been questioned at the proper time in the trial
    Court he would not have been able to furnish any good
    ground to get out of the circumstances on which the trial        c
    Court had relied for its conviction. In such a case. the Court
    proceeds on the footing that though a grave irregularity has
    occurred as regards compliance with Section 342, Cr.P.C.,
    the omission has not been ·.shown to have caused
    prejudice to the accused .... "(underlining added)
                                                                     D
    25. The same view was reiterated by this Court in State
(Delhi Administration) vs. Dharampal, (2001) 10 SCC 372,
wherein this Court has held as under:-

    "Thus it is to be seen that where an omission, to bring the      E
    attention of the accused to an inculpatory material has
    occurred that does not ipso facto vitiate the proceedings.
    The accused must show that failure of justice was
    occasioned by such omission. Further, in the event of an
    inculpatory material not having been put to the accused,         F
    the appellate Court can always make good that lapse by
    calling upon the counsel for the accused to show what
    explanation the accused has as regards the circumstances
    established against the accused but not put to him.

          This being the law, in our view, both the Sessions         G
    Judge and the High Court were wrong in concluding that
    the omission to put the contents of the certificate of the
    Director, Central Food Laboratory, could only result in the
    accused being acquitted. The accused had lo show that
    some prejudice was caused to him by the report not being         H
    236       SUPREME COURT REPORTS               (2014] 12 S.C.R.


A         put to him. Even otherwise, it was the duty of the Sessions
          Judge and/or the High Court, if they found that some vital
          circumstance had not been put to the accused, to put those
          questions to the counsel for the accused and get the
          answers of the accused. If the accused could not give any
B         plausible or reasonable explanation, it would have to be
          assumed that there was no explanation. Both the Sessions
          Judge and the High Court have overlooked this position
          of law and failed to perform their duties and thereby
          wrongly acquitted the accused."
c      26. This Court has thus widened the scope of the provisions
  concerning the examination of the accused after closing
  prosecution evidence and the explanation offered by the
  counsel of the accused at the appeal stage was held to be a
  sufficient substitute for the answers given by the accused
D himself.

        27. The point then arising for our consideration is, if all
  relevant questions were not put to accused by the trial court as
  mandated under Section 313 Cr.P.C. and where the accused
E has also shown that prejudice has been caused to him or where
  prejudice is implicit, whether the appellate court is having the
  power to remand the case for re-decision from the stage of
  recording of statement under Section 313 Cr.P.C. Section 386
  Cr.P.C. deals with power of the appellate court. As per sub-
F clause (b) (i) of Section 386 Cr.P.C., the appellate court is
  having power to order retrial of the case by a court of
  competent jurisdiction subordinate to such appellate court.
  Hence, if all the relevant questions were not put to accused by
  the trial court and when the accused has shown that prejudice
G was caused to him, the appellate court is having power to
  remand the case to examine the accused again under Section
  313 Cr.P.C. and may direct remanding the case again for re-
  trial of the case from that stage of recording of statement under
  Section 313 Cr.P.C. and the same cannot be said to be
  amounting to filling up lacuna in the prosecution case.
H
         NAR SINGH v. STATE OF HARYANA                       237
                [R. BANUMATHI, J.]

     28. In Asraf Ali vs. State of Assam (2008) 16 SCC 328,         A.
this Court has examined the scope and object of examination
of accused under Section 313 Cr.P.C. and in para (24) it was
observed that in certain cases when there is perfunctory
examination under Section 313 of the Code, the matter could
be remitted to the trial court with a direction to retry from the   B
stage at which the prosecution was closed.

     29. In Ganeshmal Jashraj vs. Government of Gujarat &
Anr., (1980) 1 SCC 363, after closure of evidence of the
prosecution and examination of accused under Section 313 C
Cr.P.C. was completed, the accused admitted his guilt
presumably as a result of plea bargaining and the accused was
convicted. Pointing out that the approach of the trial court was
influenced by the admission of guilt made by the accused and
that conviction of the accused cannot be sustained, this Court
has remanded case to trial court to proceed afresh from the D
stage of examination under Section 313 Cr.P.C.

     30. Whenever a plea of omission to put a question to the
accused on vital piece of evidence is raised in the appellate
court, courses available to the appellate court can be briefly      E
summarised as under:-

     (i) Whenever a plea of non-compliance of Section 313
     Cr.P.C. is raised, it is within the powers of the appellate
     court to examine and further examine the convict or the
                                                                    F
     counsel appearing for the accused and the said answers
     shall be taken into consideration for deciding the matter.
     If the accused is unable to offer the appellate court any
     reasonable explanation of such circumstance, the court
     may assume that the accused has no acceptable
     explanation to offer;                                          G

     (ii) In the facts and circumstances of the case, if the
     appellate court comes to the conclusion that no prejudice
     was caused or no failure of justice was occasioned, the
                                                                    H
    238       SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A         appellate court will hear and decide the matter upon
          merits.

          (iii) If the appellate court is of the opinion that non-
          compliance with the provisions of Section 313 Cr.P.C. has
          occasioned or is likely to have occasioned prejudice to the
B
          accused, the appellate court may direct retrial from the
          stage of recording the statements of the accused from the
          point where the irregularity occurred, that is, from the stage
          of questioning the accused under Section 313 Cr.P.C. and
          the trial Judge may be directed to examine the accused
c         afresh and defence witness if any and dispose of the
          matter afresh;

          (iv) The appellate court may decline to remit the matter to
          the trial court for retrial on account of long time already
D         spent in the trial of the case and the period of sentence
          already undergone by the convict and in the facts and
          circumstances of the case, may decide the appeal on its
          own merits, keeping in view the prejudice caused to the
          accused.
E
       31. On the question of remitting the matter back to the trial
  court on the ground of non-compliance of mandatory provisions
  of Section 313 Cr.P.C., learned counsel for the appellant
  contended that in the present case, the accused is in custody
  for more than eight years and the accused person cannot be
F kept under trial indefinitely and that the accused has a right to
  speedy trial. The learned counsel placed reliance upon the
  judgment of this Court in Abdul Rehman Antu/ay And Ors. vs.
  R.S. Nayak And Anr., (1992) 1 SCC 225. In paras (63) and
  (64) of the said judgment it was held as under:-
G
       "63. In Machander v. State of Hyderabad (1955) 2 SCR
       524 this Court observed that while it is incumbent on the
       Court to see that no guilty persons escapes, it is still more
       its duty to see that justice is not delayed and accused
H
         NAR SINGH v. STATE OF HARYANA                        239
                [R. BANUMATHI, J.]
    persons are not indefinitely harassed. The scales, tl'le          A
    Court observed, must be held even between the
    prosecution and the accused. In the facts ofthat case, the
    Court refused to order trial on account of the time already
    spent and other relevant circumstances of that case.
                                                                      B
    64. In Veerabadran Chettiar v. Ramaswami Naicker
    (1959) SCR 1211 this Court refused to send back
    proceedings on the ground that already a period of five
    years has elapsed and it would not be just and proper in
    the circumstances of the case to continue the proceedings         C
    after such a lapse of time. Similarly, in Chajoo Ram v.
    Radhey Shyam ((1971) 1 SCC 774 the Court refused to
    direct a re-trial after a period of 10 years having regard to
    the facts and circumstances of the case. In State of U. P.
    v. Kapil Deo Shukla ((1972) 3 SCC 504, though the Court
    found the acquittal of the accused unsustainable, it refused      D
    to order a remand or direct a trial after a lapse of 20
    years".

      32. While we are of the view that the matter has to be
remitted to the trial court for proceeding afresh from the stage      E
of Section 313 Cr.P.C. questioning, we are not oblivious of the
right of the accused to speedy trial and· that the courts are to
ensure speedy justice to the accused. While it is incumbent
upon the Court to see that persons accused of crime must be
given a fair trial and get speedy justice, in our view, every         F
reasonable latitude must be given to those who are entrusted
with administration of justice. In the facts and circumstances of
each case, court should examine whether remand of the matter
to the trial court would amount to indefinite harassment of the
accused. When there i.s omission to put material evidence to          G
the accused in the co~rse of examination under Section 313
Cr.P.C., prosecution is not guilty of not adducing or suppressing
such evidence; it is only the failure on the part of the learned
trial court. The victim of the offence or the accused should not
suffer for laches or omission of the court. Criminal justice is not   H
    240     SUPREME COURT REPORTS                 (2014] 12 S.C.R.


A   one-sided. It has many facets and we have to draw a balance
    between conflicting rights and duties.

        33. Coming to the facts of this case, FSL Report (Ex-P12)
  was relied upon both by the trial court as well as by the High
  Court.The objection as to the defective 313 Cr.P.C. statement
8
  has not been raised in the trial court or in the High Court and
  the omission to put the question under Section 313 Cr.P.C.,
  and prejudice caused to the accused is raised before this Court
  for the first time. It was brought to our notice that the appellant
C is in custody for about eight years. While the right of the
  accused to speedy trial is a valuable one, Court has to
  subserve the interest of justice keeping in view the right of the
  victim's family and the society at large.

       34. In our view, accused is not entitled for acquittal on the
D ground of non-compliance of mandatory provisions of Section
  313 Cr.P.C. We agree to some extent that the appellant is
  prejudiced on account of omission to put the question as to the
  opinion of Ballistic Expert (Ex- P12) which was relied upon by
  the trial court as well as by the High Court. Trial court should
E have been more careful in framing the questions and in
  ensuring that all material evidence and incriminating
  circumstances were put to the accused. However, omission on
  the part of the Court to put questions under Section 313 Cr.P.C.
  cannot enure to the benefit of the accused.
F      35. The conviction of the appellant under Section 302 IPC
  and Section 25 (18) of the Arms Act by the trial court in Sessions
  Case No. 40/2005 and the sentence imposed on him as
  affirmed by the High Court is set aside. The matter is remitted
  back to the trial court for proceeding with the matter afresh from
G the stage of recording statement of the accused under Section
  313 Cr.P.C. The trial court shall examine the accused afresh
  under Section 313 Cr.P.C. in the light of the above observations
  and in accordance with law. The trial Judge is directed to
  marshal the evidence on record and put specific and separate
H questions to the accused with regard to incriminating evidence
           NAR SINGH v. STATE OF HARYANA                   241
                  [R. BANUMATHI, J.]
and circumstance and shall also afford an opportunity to the A
accused to examine the defence witnesses, if any, and proceed
with the matter. Since the occurrence is of the year 2005, we
direct the trial court to expedite the matter and dispose of the
same in accordance with law preferably within a period of six
months from the date of receipt of this judgment. Since we are B
setting aside the conviction imposed upon the appellant-
accused, the appellant-accused is at liberty to move for bail, if
he is so advised. On such bail application being moved by the
appellant-accused, the trial court shall consider the same in
accordance with law. We make it clear that we have not ·          c
expressed any opinion on the merits of the matter.

     36. The appeal is disposed of as above.

Devika Gujral                               Appeal disposed of.