NARESH KUMARversusSTATE OF DELHI

                 [2024] 7 S.C.R. 178 : 2024 INSC 464

                               Naresh Kumar
                                     v.
                               State of Delhi
                     (Criminal Appeal No.1751 of 2017)
                                  08 July 2024
             [C.T. Ravikumar* and Sandeep Mehta, JJ.]

                            Issue for Consideration
       Non-questioning the appellant convicted u/s.302 r/w s.34, Penal
       Code, 1860 on the twin incriminating circumstances during his
       examination u/s.313, Code of Criminal Procedure, 1973, if caused
       material prejudice to him vitiating the trial qua him.

                                   Headnotes†
       Code of Criminal Procedure, 1973 – s.313 – Penal Code, 1860 –
       s.302 r/w s.34 – Non-compliance of s.313 – Non-questioning on
       the twin incriminating circumstances to the appellant convicted
       u/s.302 r/w s. 34, IPC during his examination u/s.313, when
       the finding of common intention was based on the aforesaid
       twin incriminating circumstances, if caused material prejudice
       vitiating the trial qua him:
       Held: Yes – Non-questioning or inadequate questioning on
       incriminating circumstances to an accused by itself would not
       vitiate the trial qua the accused concerned and to hold that
       the trial qua him is vitiated it is to be established further that it
       resulted in material prejudice to the accused – Examination of the
       appellant u/s.313 reveals that both the incriminating circumstances
       appearing against the appellant in the prosecution evidence viz.,
       exhortation to do away with the lives of the deceased and others
       in his family and the evidence that the appellant had caught
       hold of the hands of the deceased to enable his brother-co-
       accused to stab him repeatedly with knife, were not directly or
       even indirectly put to him while being examined u/s.313 – The
       conclusion that the appellant had shared the common intention to
       commit murder of the deceased was based only on the aforesaid
       two incriminating circumstances which were not put to him while
       being questioned u/s.313 – There was no charge of commission
       of an offence u/s. 300, IPC, punishable u/s. 302, IPC, simplicitor

* Author
[2024] 7 S.C.R.                                                              179

                      Naresh Kumar v. State of Delhi


     against the appellant, he was charged thereunder with the aid
     of s.34, IPC – Thus, when the finding of common intention was
     based on the twin incriminating circumstances and when they
     were not put to the appellant while he was being questioned
     u/s.313, and when they ultimately culminated in his conviction
     u/s.302 with the aid of s.34, IPC, and when he was awarded with
     the life imprisonment, the appellant was materially prejudiced and
     it had resulted in blatant miscarriage of justice – The failure is
     not a curable defect and it is a patent illegality vitiating the trial
     qua the appellant – Appellant’s conviction cannot be sustained,
     acquitted – Impugned judgments set aside qua the appellant.
     [Paras 20, 21, 24, 26, 27]
     Code of Criminal Procedure, 1973 – s.313 – Non-questioning/
     inadequate questioning on incriminating circumstances –
     Prejudice or miscarriage of justice – Onus to establish:
     Held: Onus to establish the prejudice or miscarriage on account
     of non-questioning or inadequate questioning on any incriminating
     circumstance(s), during the examination u/s. 313 is on the convict
     concerned. [Para 21]
     Code of Criminal Procedure, 1973 – s.313 – Code of Criminal
     Procedure (Amendment) Act, 2008 (Act 5 of 2009) – s.313(5) –
     “actus curiae neminem gravabit” – Contention as regards
     the non-examination/inadequate examination u/s.313 causing
     material prejudice to the appellant was not appropriately
     raised and argued before the High Court and was raised for
     the first time before Supreme Court – Said contention if can
     be maintained at this stage:
     Held: s.313 would reveal the irrecusable obligation coupled with
     duty on Court concerned to put the incriminating circumstances
     appearing in the prosecution evidence against accused concerned
     facing the trial providing him an opportunity to explain – Sub-
     Section (5) of Section 313 inserted under 2008 Amendment Act
     lends support to this view – Also, the act of court shall prejudice
     no one – In a charge for commission of a serious offence where
     extreme penalty alone is imposable in case the accused is found
     guilty, procedural safeguards ensuring protection of right(s) of
     accused must be followed and at any rate, in such cases when
     non-compliance of the mandatory procedure capable of vitiating
     trial qua the convict concerned is raised and revealed from records,
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       irrespective of the fact it was not raised appropriately, it must
       be considered lest the byproduct of consideration of the case
       would result in miscarriage of justice – Being the Court existing
       for dispensation of justice, this Court is bound to consider and
       correct the mistake committed by the Court by looking into the
       question whether non-examination or inadequate examination of
       accused concerned caused material prejudice or miscarriage of
       justice. [Paras 15, 16]
       Code of Criminal Procedure, 1973 – s.313 – Object:
       Held: s.313 embodies salutary principle of natural justice viz., audi
       alteram partem and empowering the Court to examine the accused
       thereunder is to give the accused concerned an opportunity to
       explain the incriminating circumstances appearing against him
       in the prosecution evidence – The general position is that if any
       incriminating circumstance, appearing against an accused in the
       prosecution evidence, is not put to him it should not be used against
       him and must be excluded from consideration – At the same time,
       it is a well-settled position that non-examination or inadequate
       examination u/s.313 on any incriminating circumstance, by itself,
       would not vitiate a trial qua the convict concerned unless it has
       resulted in material prejudice to him or in miscarriage of justice.
       [Para 11]
       Practice and Procedure – Judgment not containing discussion
       on a particular point – Said point is to be prima facie assumed
       not to have been argued unless contrary is shown – Contention
       of the appellant as regards non-examination/inadequate
       examination u/s.313 causing material prejudice to him, if was
       argued before the High Court:
       Held: Normally, it has to be presumed that all the arguments
       actually pressed at the hearing in the High Court were noticed
       and appropriately dealt with and if the judgment of the High Court
       does not contain discussion on a point, then that point should be
       assumed prima facie not to have been argued at the bar unless
       the contrary is specifically shown – In the present case, though
       grounds A to Z and AA to GG were taken in this appeal, there
       was absolute absence of any contention in any one of them to the
       effect that despite being pressed into, the contention as regards
       non-examination u/s. 313 was not taken into consideration and
       appropriately dealt with by the High Court – Hence, the conclusion
       can only be that it was not argued. [Para 12]
[2024] 7 S.C.R.                                                                   181

                       Naresh Kumar v. State of Delhi


                                Case Law Cited

     V.K. Sasikala v. State [2012] 10 SCR 641 : (2012) 9 SCC 771;
     Suresh Chandra Bihari v. State of Bihar [1994] Supp. 1 SCR 483 :
     AIR 1994 SC 2420; Wariyam Singh & Ors. v. State of U.P. [1995]
     Supp. 3 SCR 807 : AIR 1996 SC 305; Amanullah v. State of U.P.,
     AIR 1973 SC 1370; Shobit Chamar & Anr. v. State of Bihar [1998]
     2 SCR 117 : AIR 1998 SC 1693; Oil and Natural Gas Company
     Limited v. Modern Construction and Company [2013] 10 SCR
     466 : (2014) 1 SCC 648; Raj Kumar @ Suman v. State (NCT of
     Delhi) [2023] 5 SCR 754 : 2023 SCC OnLine SC 609; State of
     Punjab v. Swaran Singh 2005 Supp. 1 SCR 786 : (2005) 6 SCC
     101 – referred to.

                                   List of Acts
     Code of Criminal Procedure, 1973; Penal Code, 1860; Code of
     Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009).

                               List of Keywords

     Section 313 of Code of Criminal Procedure, 1973; Questioning
     under clause (b) Section 313 of Code of Criminal Procedure, 1973
     is mandatory; Conviction under Section 302 read with Section
     34, Penal Code, 1860; Examination under Section 313 of Code
     of Criminal Procedure, 1973; Incriminating circumstances; Non-
     questioning/inadequate questioning on incriminating circumstances;
     Material prejudice or blatant miscarriage of justice; Procedural
     safeguards; Protection of rights of accused; non-compliance of
     the mandatory procedure; Finding of common intention based on
     the incriminating circumstances; Exhortation; Non-curable defect;
     Patent illegality; Trial vitiated; Principle of natural justice viz., “audi
     alteram partem”; “actus curiae neminem gravabit”; Act of court
     shall prejudice no one; Contention not argued before the High
     Court; Contention not raised appropriately.

                              Case Arising From

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1751
     of 2017
     From the Judgment and Order dated 20.12.2016 of the High Court
     of Delhi at New Delhi in CRLA No. 540 of 2000
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                          Appearances for Parties
       S. D. Singh, Ms. Bharti Tyagi, Ms. Shweta Sinha, Ram Kripal Singh,
       Dhiraj Kumar, Siddharth Singh, Advs. for the Appellant.
       Ms. Sonia Mathur, Sr. Adv., Shreekant Neelappa Terdal, Ms. Ruchi
       Kohli, Ms. Swarupama Chaturvedi, Ms. Noor Rampal, Shantnu
       Sharma, Mukesh Kumar Maroria, Advs. for the Respondent.
                  Judgment / Order of the Supreme Court

                                  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 argy-bargy over
       spilling of drops of water over the roof of the appellant’s house
[2024] 7 S.C.R.                                                            183

                      Naresh Kumar v. State of Delhi


     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:
           "1.   Incised wound size 1.3 cm x 0.5 cm. On the left side
                 front of chest. There is 1-1/2 medial to the left nipple
                 placed abliquely.
           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
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       appeal and reference about him was made solely for the purpose
       of disposing this appeal.
4.     As noticed earlier, the conviction of the appellant under Section 302,
       IPC, was then made with the aid of Section 34, IPC, and upon which
       he was awarded imprisonment for life. The conviction of the appellant
       herein was confirmed under the impugned common judgment dated
       20.12.2016 in Criminal Appeal No.540/2000 (filed by the appellant
       herein), and Criminal Appeal No.764/2000 (filed by Mahinder Kumar).
5.     Heard Sh. S.D. Singh, learned counsel appearing for the appellant
       and Ms. Sonia Mathur, learned senior counsel appearing for the
       respondent State.
6.     As noticed earlier, the thrust of the argument for the appellant was
       founded on prejudicial non-compliance of Section 313, Cr.PC, during
       the examination thereunder, qua the appellant. Before going into its
       details, we think it appropriate to consider whether the appellant is
       raising this contention for the first time before this Court. In this context,
       it is to be noted that there is nothing on record which would reveal
       that specific contention in this regard was raised before the High
       Court in the appeal. True, that in the appeal before the High Court a
       ground in this regard was raised as ‘ground No.13’ as hereunder: -
            “13. That has been no proper examination of the appellant
            u/s. 313 Cr.P.C. which has caused material prejudice to
            the appellant.”
7.     There is nothing in the impugned judgment to reveal that this point
       was argued with specific details establishing prejudice, before the
       High Court. The innumerable grounds (grounds A to Z and AA to
       GG) raised in this appeal would reveal that neither directly nor
       indirectly, this core contention was taken in any of them. At any rate,
       no ground was raised to the effect that despite raising this ground,
       the High Court had failed to consider it. Be that as it may, the order
       dated 21.07.2017 of this Court would reveal that the learned counsel
       for the appellant argued before this Court that while recording the
       statement of the appellant under Section 313, Cr.PC, no incriminating
       circumstances appearing in the prosecution evidence against him,
       were put to him and that vitiated the whole trial. Obviously, thereupon
       notice was issued in the Special Leave Petition from which this
       appeal arose. Later, only in the first application for bail, a contention
[2024] 7 S.C.R.                                                            185

                      Naresh Kumar v. State of Delhi


     on the following lines was taken and it was reiterated in the second
     application for bail as well:
           “7. That on completion of the evidence statement of
           accused under Section 313 Cr. PC have been recorded
           on 6.6.2000 and the mere perusal of the statement would
           show that no incriminating evidence which had been
           subsequently considered for the conviction of the appellant
           by the Ld. Trial Court as well as Hon’ble High Court had
           been put to the Appellant. Therefore, the entire trial against
           the Appellant is vitiated.”
8.   During the course of the arguments by the learned counsel for the
     appellant submitted that this contention is based on non-questioning
     on two incriminating circumstances appeared against the appellant
     in the prosecution evidence viz., exhortation to do away with their
     lives (aaj inko jaan se hi khatam karde) and the evidence that ‘the
     appellant had caught hold of the hands of the deceased Arun Kumar
     to enable Mahinder Kumar to stab him repeatedly with knife’ and
     they formed the foundation for holding that the appellant had shared
     common intention with the first accused and ultimately, for holding
     the appellant guilty with the aid of Section 34, IPC, for the offence
     under Section 300, IPC, punishable under Section 302, IPC.
9.   In view of the aforementioned core contentions, we are of the
     considered view that we need to consider the other grounds taken
     up in the appeal on the merits only if the appellant could not succeed
     based on non-examination under Section 313, Cr.PC, qua the
     appellant. We may consider any other relevant aspect, circumstance
     or evidence if we find that it is required for a proper consideration
     and appreciation of the above-mentioned core contention.
10. We have taken note of the absence of materials to show that the
    aforesaid core contention was appropriately raised and argued before
    the High Court. In the captioned appeal, it was not taken at all. In
    view of the circumstances the contention is resurrected, we are of
    the considered view that to entertain the same, it is essential to
    have a short survey on the authorities on the scope of maintaining
    such a contention at this stage in the aforementioned circumstances.
    Subject to its answer, we may also have to consider the question of
    prejudice or miscarriage of justice due to the non-compliance with
    mandate for questioning under Section 313, Cr.PC.
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11. In the context of the issues thus involved, it is only proper to look
    into the very object of Section 313, Cr.PC. This aspect has been
    considered many a times by this Court to hold that it embodies
    one salutary principle of natural justice viz., audi alteram partem
    and empowering the Court to examine the accused thereunder
    is to give the accused concerned an opportunity to explain
    the incriminating circumstances appearing against him in the
    prosecution evidence. In the decision in V.K. Sasikala v. State 1,
    this Court held that examination of an accused under Section 313,
    Cr.PC, would not only provide an opportunity to him to explain
    the incriminating circumstances appearing in evidence against
    him, but also would permit him to forward his own version with
    regard to his alleged involvement in the crime. Furthermore, it
    was held that such an examination would have a fair nexus with
    a defence he might choose to bring and, therefore, any failure in
    such examination might take the effect of curtailing his right in the
    event he took up a specific defence. The general position is that
    if any incriminating circumstance, appearing against an accused
    in the prosecution evidence, is not put to him it should not be
    used against him and must be excluded from consideration. At the
    same time, we may hasten to add that it is a well-neigh settled
    position that non-examination or inadequate examination under
    Section 313, Cr.PC, on any incriminating circumstance, by itself,
    would not vitiate a trial qua the convict concerned unless it has
    resulted in material prejudice to him or in miscarriage of justice.
    In the decision in Suresh Chandra Bihari v. State of Bihar 2 and
    in Wariyam Singh & Ors. v. State of U.P. 3, this Court held that
    mere defective/improper examination under Section 313, Cr.PC,
    would be no ground to set aside a conviction of the accused
    unless it has resulted in prejudice to the accused. In view of the
    said position which is being followed with alacrity we do not think
    it necessary to multiply the authorities on it.
12. We have already noted that ‘ground No.13’ raised in the appeal
    before the High Court was too vague, in the sense without clarity
    whatsoever, as to what were the incriminating circumstances that


1   [2012] 10 SCR 641 : (2012) 9 SCC 771
2   [1994] Supp. 1 SCR 483 : AIR 1994 SC 2420
3   [1995] Supp. 3 SCR 807 : AIR 1996 SC 305
[2024] 7 S.C.R.                                                          187

                          Naresh Kumar v. State of Delhi


     appeared in the prosecution evidence not being put to the appellant
     while being examined and what is the material prejudice or miscarriage
     of justice caused consequent to such failure. To make matters worse,
     a scanning of the impugned judgment of the High Court would not
     disclose whether before the High Court, the said contention was
     pressed into service much-less whether it was argued with precision
     on quintessential materials to establish that the trial qua the appellant
     was vitiated. In the contextual situation it is relevant to refer to the
     decision of this Court in Amanullah v. State of U.P.4. Normally, it
     has to be presumed that all the arguments actually pressed at the
     hearing in the High Court were noticed and appropriately dealt with
     and if the judgment of the High Court does not contain discussion on
     a point, then that point should be assumed prima facie not to have
     been argued at the bar unless the contrary is specifically shown,
     it was so, held in the said judgment. In the case on hand though
     grounds A to Z and AA to GG were taken in this appeal, there is
     absolute absence of any contention in any one of them to the effect
     that despite being pressed into the said contention was not taken
     into consideration and appropriately dealt with by the High Court.
     Hence, the conclusion can only be that it was not argued.
13. This position takes us to the next question as to whether in such
    circumstances the contention based on non-examination/inadequate
    examination under Section 313, Cr.PC, causing material prejudice
    qua the appellant can be maintained at this stage. In this context,
    it is only appropriate to refer to the decision of this Court in Shobit
    Chamar & Anr. v. State of Bihar 5. It was held therein that where the
    plea as to non-compliance of the provisions of Section 313, Cr.PC,
    was raised for the first time before the Supreme Court, in case no
    prejudice had resulted to the accused was proved, the trial could
    not be held as vitiated. In that case, though the non-compliance
    was taken for the first time before the Supreme Court, the records
    showed that the relevant portion of the statement of witnesses were
    put to the accused in examination under Section 313, Cr.PC, and,
    thereupon, the plea was rejected. It is to be noted that was also a
    case of murder.



4   AIR 1973 SC 1370
5   [1998] 2 SCR 117 : AIR 1998 SC 1693
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14. In the light of the aforesaid question posed for consideration, it is
    only appropriate to refer to the relevant provisions under Section
    313 (1), (4) and (5).
          “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 accused put such questions to him as the
               Court considers 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:
               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) …
          (3) …
          (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.
          (5) The Court may take help of Prosecutor 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 section.”
15. A bare perusal of the provisions under Section 313, Cr.PC, extracted
    above, would undoubtedly reveal the irrecusable obligation coupled
    with duty on Court concerned to put the incriminating circumstances
    appearing in the prosecution evidence against accused concerned
    facing the trial providing him an opportunity to explain. Sub-Section
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                           Naresh Kumar v. State of Delhi


     (5) of Section 313, Cr.PC, which was inserted under Code of Criminal
     Procedure (Amendment) Act, 2008 (Act 5 of 2009) with effect from
     31.12.2009, would lend support to this view. It reads thus: -
            “Section 313. Power to examine the accused.
              ***               ***          ***            ***
            (5) The Court may take help of Prosecutor 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 section.”
16. In this context, the maxim “actus curiae neminem gravabit” – “the
    act of court shall prejudice no one”, has also to be looked into. In
    the decision in Oil and Natural Gas Company Limited v. Modern
    Construction and Company 6, this Court held that the court has to
    correct the mistake it has done, rather than to ask the affected party
    to seek his remedy elsewhere. In the context of the decisions referred
    above, there can be no doubt that in a charge for commission of a
    serious offence where extreme penalty alone is imposable in case the
    accused is found guilty, procedural safeguards ensuring protection
    of right(s) of accused must be followed and at any rate, in such
    cases when non-compliance of the mandatory procedure capable
    of vitiating trial qua the convict concerned is raised and revealed
    from records, irrespective of the fact it was not raised appropriately,
    it must be considered lest the byproduct of consideration of the case
    would result in miscarriage of justice. Being the Court existing for
    dispensation of justice, this Court is bound to consider and correct
    the mistake committed by the Court by looking into the question
    whether non-examination or inadequate examination of accused
    concerned caused material prejudice or miscarriage of justice. We
    may hasten to add here, that we shall not be understood to have
    held that always such a mistake has to be corrected by this Court by
    examining the question whether material prejudice or miscarriage of
    justice had been caused. In this context, the summarization of law
    on the subject of consequence of omission to make questioning on
    incriminating circumstances appearing in the prosecution evidence


6   [2013] 10 SCR 466 : (2014) 1 SCC 648
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       and the ways of curing the same, if it is called for, by this Court in
       the decision in Raj Kumar @ Suman v. State (NCT of Delhi) 7,
       assumes relevance. Paragraph 16 of the said decision reads thus:-
            “17. The law consistently laid down by this Court can be
            summarized as under:
                   (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 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



7   [2023] 5 SCR 754 : 2023 SCC OnLine SC 609
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                      Naresh Kumar v. State of Delhi


                (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.”
17. In view of the circumstances obtained in this case, factually and
    legally, it is also relevant to refer to paragraph 20 of the decision in
    Raj Kumar’s case (supra) and it reads thus:-
           “21. Even assuming that the defect or irregularity was
           curable, the question is whether today, the appellant-accused
           can be called upon to explain the said circumstance. More
           than 27 years have passed since the date of the incident.
           Considering the passage of time, we are of the view that
           it will be unjust now at this stage to remit the case to the
           Trial Court for recording further statement of the appellant
           under Section 313 of CrPC. In the facts of the case, the
           appellant cannot be called upon to answer something
           which has transpired 27 years back. There is one more
           aspect of the matter which persuaded us not to pass an
           order of remand. The said factor is that the appellant has
           already undergone incarceration for a period of 10 years
           and 4 months.”
18. In this case, the incident in question occurred on 14.06.1995 and
    thus, obviously, more than 29 years have passed by. The appellant
    has already undergone incarceration for a period of more than
    12 years. In the circumstances, we are inclined to proceed with
    the consideration of the contentions bearing in mind the aforesaid
    authorities laying down the position of law on various aspects of
    Section 313, Cr.PC.
19. In the case on hand, the appellant was convicted for the offence under
    Section 300, IPC, punishable under Section 302, IPC, with the aid of
    Section 34, IPC. In other words, the conviction was not under Section
    302, Cr.PC, simpliciter. Upon finding guilty for commission of murder
    only one of two extreme penalties viz., death or imprisonment for life
192                                                        [2024] 7 S.C.R.

                      Digital Supreme Court Reports


       could be imposed on the convict. When this be the consequence
       of finding an accused to have committed murder or in any other
       serious offence where extreme punishment of like nature alone is
       imposable, the failure to comply with the mandatory questioning on
       incriminating circumstance(s) appearing in the prosecution case, if
       made out, the plea of non-examination or inadequate examination
       under Section 313, Cr.PC, whether resulted in material prejudice to
       the accused or total miscarriage of justice, shall not be ignored or
       declined to be taken into account by the Court.
20. We have already noted that crucial incriminating circumstances viz.,
    (1) pertaining to the exhortation of the appellant to kill Arun Kumar
    and others in his family (2) he had caught hold of the deceased to
    enable Mahinder Kumar to stab on his chest repeatedly, were not
    allegedly put to the appellant while being examined under Section
    313, Cr.PC. The first among the twin incriminating circumstances
    not to put to the appellant was virtually the charge framed against
    him to the effect that in furtherance of the common intention of
    Mohinder Kumar and the appellant caught hold of deceased Arun
    Kumar and the other accused Mohinder Kumar inflicted knife
    blows on deceased Arun Kumar and murdered him. The former
    incriminating circumstance relating to exhortation by the appellant
    did not form part of the charge against the appellant. There can be
    no doubt with respect to the position that the question whether the
    aforementioned twin incriminating circumstances appeared in the
    prosecution evidence and whether they were put to the appellant
    while being examined under Section 313, Cr.PC, to enable him an
    opportunity to offer explanation are not matters of argument as a
    bare perusal of the materials on record viz., the oral testimonies
    of the eyewitnesses and Section 313, Cr.PC, examination of the
    appellant would reveal the verity or otherwise of the said contentions.
    The oral testimonies of Anil Kumar (PW-7), Smt. Prem Devi (PW-8),
    Mrs. Madhu (PW-19) and Anand Kumar (PW-22) would reveal that
    they have deposed regarding the exhortation from the appellant
    though in slightly different manner, and also about the fact that he
    had caught hold of the deceased to enable Mohinder Kumar to stab
    on the chest of the deceased repeatedly. The examination of the
    appellant under Section 313, Cr.PC, which is available on record,
    would reveal that both the incriminating circumstances were not
    directly or even indirectly put to the appellant while being examined
[2024] 7 S.C.R.                                                         193

                           Naresh Kumar v. State of Delhi


     under Section 313, Cr.PC. The learned counsel appearing for the
     respondent would fairly admit that the said material on record would
     reveal the correctness of the contentions of the appellant.
21. We have already held that whether non-questioning or inadequate
    questioning on incriminating circumstances to an accused by itself
    would not vitiate the trial qua the accused concerned and to hold
    the trial qua him is vitiated it is to be established further that it
    resulted in material prejudice to the accused. True that the onus to
    establish the prejudice or miscarriage on account of non-questioning
    or inadequate questioning on any incriminating circumstance(s),
    during the examination under Section 313, Cr.PC, is on the convict
    concerned. We say so, because if an accused is ultimately acquitted,
    he could not have a case that he was prejudiced or miscarriage of
    justice had occurred owing to such non-questioning or inadequate
    questioning.
22. In the light of the above view of the matter, we are inclined to consider
    the further question whether the non-questioning on the aforesaid twin
    incriminating circumstances to the appellant during his examination
    under Section 313, Cr.PC, had caused material prejudice to him.
    The decision of this Court in State of Punjab v. Swaran Singh 8,
    constrain us to consider one another factor while considering the
    question of prejudice. In Swaran Singh’s case (supra), this Court
    held that where the evidence of the witnesses is recorded in the
    presence of the accused who had the opportunity to cross examine
    them but did not cross examine them in respect of facts deposed,
    then, omission to put question to the accused regarding the evidence
    of such witnesses would not cause prejudice to such an accused
    and, therefore, could not be held as grounds vitiating the trial qua the
    convict concerned. We have already found that Anil Kumar (PW-7),
    Smt. Prem Devi (PW-8), Mrs. Madhu (PW-19) and Anand Kumar
    (PW-22) have deposed about the said circumstances. A scanning
    of their oral testimonies, available on record, would undoubtedly
    reveal that on both the points, on behalf of the appellants they were
    cross examined.
23. The position, as above, would take us to the last question whether
    material prejudice was caused to the appellant on account of non-


8   [2005] Supp. 1 SCR 786 : (2005) 6 SCC 101
194                                                          [2024] 7 S.C.R.

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       questioning him on the aforesaid incriminating circumstances and
       thereby depriving him an opportunity to explain. This question can
       better be considered by referring to paragraph 31 of the judgment of
       the Trial Court, which virtually got confirmance from the High Court
       under the impugned judgment. It reads thus:-
            “31. As far the part played by accused Naresh is concerned,
            this has come in the evidence of PWs that he (Naresh) is
            the man, who called his brother Mahinder and exhorted
            “Mahender came out and kill them today” and thereafter
            his taking part in the incident, by catching hold of deceased
            Arun Kumar, clearly goes to show the common’ intention of
            the two, i.e. Naresh and Mahinder and even the Learned
            Defence Counsel, cannot be benefited from the above
            noted authorities.”
24. It is evident from the afore-extracted paragraph from the judgment of
    the Trial Court that the said conclusion that appellant had shared the
    common intention to commit murder of the deceased Arun Kumar was
    based only on the aforesaid two incriminating circumstances which
    were not put to the appellant while being questioned under Section
    313, Cr.PC. When the very charge framed against him, as referred
    as above, would reveal that there was no charge of commission of an
    offence under Section 300, IPC, punishable under Section 302, IPC,
    simplicitor against the appellant whereas the said charge thereunder
    with the aid of Section 34, IPC. In such circumstances, when the
    finding of common intention was based on the twin incriminating
    circumstances and when they were not put to the appellant while
    he was being questioned under Section 313, Cr.PC, and when they
    ultimately culminated in his conviction under Section 302, IPC, with
    the aid of Section 34, IPC, and when he was awarded with the life
    imprisonment consequently, it can only be held that the appellant
    was materially prejudiced and it had resulted in blatant miscarriage of
    justice. The failure as above is not a curable defect and it is nothing
    but a patent illegality vitiating the trial qua the appellant.
25. Once, the upshot of the discussion is above, we do not think it proper
    to deal with the innumerable grounds raised by the appellant, not
    only because it has become unnecessary but also such consideration
    may adversely affect the co-accused whose appeal was also decided
    under the very same common judgment impugned in this appeal.
[2024] 7 S.C.R.                                                        195

                        Naresh Kumar v. State of Delhi


26. As noticed hereinbefore, the incident in question occurred more
    than 29 years ago and the appellant had already undergone
    incarceration more than 12 years. In such circumstances, if he is
    again subjected to examination under Section 313, Cr.PC, it would
    cause further prejudice to him in view of the patent illegality occurred
    qua the appellant. Hence, the conviction of the appellant could not
    be sustained.
27. For the aforesaid reasons, the appeal must succeed. Accordingly,
    the impugned judgment of the trial Court and the High Court are set
    aside qua the appellant. We make it clear that this judgment would
    not disturb the conviction of the other accused. We also make it
    clear that this observation shall not be taken as confirmation of his
    conviction as it is a matter which may be dealt with in an appeal, if
    any, filed by him. The 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.
28. The appeal is allowed on the above terms.
29. Pending application(s), if any, are disposed of.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey