In a very sharp, significant and stimulating observation, the Apex Court as recently as on May 11, 2023 in a most learned, laudable, landmark and latest judgment titled Raj Kumar @ Suman v. State (NCT of Delhi) in Criminal Appeal No. 1471 of 2023 [Arising out of S.L.P.(Crl.) No. 11256 of 2018 and cited in 2023 LiveLaw 434 in the exercise of its criminal appellate jurisdiction has opined most sagaciously that while recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers should take benefit of Section 313(5) of CrPC which will ensure that the chances of committing errors and omissions are minimized. It would be instructive to note that Section 313(5) CrPC says that the Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this Section. Most commendably, the Division Bench of Hon’ble Mr Justice Abhay S Oka and Hon’ble Mr Justice Rajesh Bindal observed that:
In 1951, while delivering the verdict in the case of Tara Singh v State 1951 SCC OnLine SC 49, this Court lamented that in many cases, scant attention is paid to the salutary provision of Section 342 of CrPC of 1898. We are sorry to note that the situation continues to be the same after 72 years as we see such defaults in large number of cases. The National and the State Judicial Academies must take a note of this situation. The Registry shall forward a copy of this decision to the National and all the State Judicial Academies.

FACTUAL ASPECTS
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Abhay S Oka for a Division Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Rajesh Bindal put forth in para 2 that:
Appellant (accused no.2) was convicted by the Sessions Court by the Judgment dated 27th August 2003 for the offences punishable under Section 302 read with Section 120B of the Indian Penal Code (for short, ‘IPC’). For the offence under Section 302, the appellant was sentenced to undergo life imprisonment. He was also convicted for the offence punishable under Section 307 read with Section 120B of IPC, for which he was sentenced to undergo rigorous imprisonment for 7 years.

To put things in perspective, the Bench envisages in para 3 that:
The allegation against this accused, along with one Vimal (since deceased) and five others, was that on 01st October 1995, around 03:30 pm, they conspired to criminally intimidate and commit the murder of Jawahar Lal (PW3) and his relatives. The allegation is that PW-3 was running his own cable TV network, and the accused wanted him to stop the said cable TV network. The allegation of the prosecution is that on 01st October 1995 at about 03:30 pm, the accused entered the house of PW-3 Jawahar Lal where he, along with his family members, were residing. Accused nos. 4 and 5 fired bullets from their revolvers at Om Devi, mother of PW3 and Chander Shekhar (deceased – brother of PW3). Accused no.3 and deceased Vimal attacked Chander Shekhar (deceased) and Omi with daggers and knives. PW3 and PW7 suffered serious injuries. As noted earlier, Chander Shekhar died. We may note that admittedly the only allegation against the present appellant (accused no.2) is that while 6 other accused entered the house of PW3, the appellant was standing near the gate of the gallery with katta (countrymade handgun) in his hand. By the impugned judgment, the High Court has confirmed the conviction of the appellant.

OUR VIEW
As it turned out, the Bench then minces just no words to state in para 7 that:
We have considered the submissions. There is no dispute that the only allegation against the appellant was that while six accused entered the house of PW-3, the appellant was standing outside with a katta in his hand. In paragraph 84 of the impugned judgment, the High Court has observed that the evidence of PW-3, as regards the appellant, creates some doubt. However, it was held that the evidence of PW-5 and PW-13 is clear and consistent as regards his involvement. We have, therefore, perused the evidence of the said three prosecution witnesses. PW-3 Jawahar Lal deposed about the entry of 6 other accused into his house at about 03:30 pm on 01st October 1995. He did not depose that the appellant was standing outside with a katta in his hand. In further examination-in-chief, he stated that in his statement recorded by the police, he has wrongly mentioned that the accused Rajinder Kumar was guarding the spot. He stated that it was the appellant who was guarding the spot. The High Court has expressed doubt about the version of PW-3 concerning the involvement of the present appellant. The reason given by the High Court is that PW-3 also stated that on the day of the incident, he did not see the appellant, but his name was told to him by PW-5 Ved Prakash. Therefore, the testimony of PW-3 cannot be relied upon to implicate the appellant.

Quite significantly, the Bench minces absolutely no words to mandate in para 20 holding that:
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.

Be it noted, the Bench notes in para 21 that:
Before we part with this judgment, we must take a note of sub-section (5) added to Section 313 of CrPC w.e.f. 31st December 2009. Sub-section (5) reads thus:

313. Power to examine the accused.-

(1) … … …

(2) … … … …

(3) … … … …

(4) … … … …

(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.

In many criminal trials, a large number of witnesses are examined, and evidence is voluminous. It is true that the Judicial Officers have to understand the importance of Section 313. But now the Court is empowered to take the help of the prosecutor and the defence counsel in preparing relevant questions. Therefore, when the Trial Judge prepares questions to be put to the accused under Section 313, before putting the questions to the accused, the Judge can always provide copies of the said questions to the learned Public Prosecutor as well as the learned defence Counsel and seek their assistance for ensuring that every relevant material circumstance appearing against the accused is put to him. When the Judge seeks the assistance of the prosecutor and the defence lawyer, the lawyers must act as the officers of the Court and not as mouthpieces of their respective clients. While recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers will be well advised to take benefit of sub-section (5) of Section 313 of CrPC, which will ensure that the chances of committing errors and omissions are minimized.

Most significantly, the Bench then minces absolutely no words to precisely hold in para 22 what forms the cornerstone of this notable judgment wherein it is mandated that:
In 1951, while delivering the verdict in the case of Tara Singh v State 1951 SCC OnLine SC 49, this Court lamented that in many cases, scant attention is paid to the salutary provision of Section 342 of CrPC of 1898. We are sorry to note that the situation continues to be the same after 72 years as we see such defaults in large number of cases. The National and the State Judicial Academies must take a note of this situation. The Registry shall forward a copy of this decision to the National and all the State Judicial Academies.

Finally, the Bench concludes by holding in para 23 that:
In the circumstances, we are of the view that the conviction of the appellant stands vitiated. In the facts of the case, the option of remand will be unjust. Accordingly, we allow the appeal and set aside the conviction and sentence of the appellant under the Judgment and Order dated 27th August 2003 passed by the learned Additional Sessions Judge, Delhi, in Sessions Case No. 9 of 2000. Consequently, the impugned judgment of the High Court is also set aside. We make it clear that both judgments are set aside only insofar as the appellant is concerned. We, accordingly, direct that the respondent shall forthwith set the appellant at liberty unless he is required to be detained in connection with any other case.

In a nutshell, the Apex Court is at pains to note that the Trial Judges are not using Section 313(5) of the CrPC. So it is high time now and the Trial Judges must pay heed and act accordingly as directed to by the Apex Court in this leading case! The Judicial Academies both at the national and at the State level too must take notice and take the requisite action on this score as is so desperately needed also. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.