Summary
A murder conviction based on common intention was set aside because the two circumstances establishing that intention were never put to the appellant under Section 313 CrPC. The omission materially prejudiced his defence and caused a miscarriage of justice. After twenty-nine years and more than twelve years’ incarceration, further questioning would itself cause prejudice; the appellant was acquitted without deciding the co-accused’s case.
Issues
- Whether a Section 313 objection inadequately raised earlier could be examined in the Supreme Court.
- Whether omission of the two circumstances establishing common intention caused material prejudice.
- Whether belated supplementary questioning or remand was appropriate.
Provisions considered
- Section 313(1)(b), Code of Criminal Procedure, 1973The court must put each material incriminating circumstance to the accused so that he can explain it. Failure is not automatically fatal, but here both circumstances constituting the sole basis of common intention were omitted and material prejudice was established. (¶¶ 11, 14, 15, 16, 20, 21, 22, 23, 24)
- Sections 302 and 34, Indian Penal Code, 1860The appellant’s liability for murder depended on common intention, inferred exclusively from alleged exhortation and restraint of the victim. Because neither circumstance was put under Section 313, that conviction could not stand. (¶¶ 19, 20, 23, 24, 26, 27)
Held
- Section 313 embodies a fair opportunity to explain the prosecution’s incriminating circumstances and advance the accused’s own version. Material circumstances ordinarily cannot be used against an accused if they were never put to him. Defective questioning vitiates a conviction only when material prejudice or miscarriage of justice is shown; that burden lies on the convict. (¶¶ 11, 14, 15, 16, 21)
- Although the earlier High Court ground was vague and not shown to have been argued, the Court examined the omission in this serious prosecution. A judicial failure in mandatory safeguards disclosed by the record should not be ignored merely because the contention was not appropriately advanced earlier. Delay in raising it remains one relevant factor among others. (¶¶ 6, 7, 10, 12, 13, 16, 18, 19)
- Neither the alleged exhortation to kill nor the alleged act of holding the victim to facilitate stabbing was put to the appellant, directly or indirectly. Both circumstances had been challenged in cross-examination. Together they were the only basis on which common intention and the appellant’s Section 302/34 liability were found; depriving him of an opportunity to explain them caused material prejudice and a blatant miscarriage of justice. (¶¶ 20, 22, 23, 24)
- A curable omission can sometimes be addressed through appellate questioning or remand, but passage of time is material. Here more than twenty-nine years had elapsed and the appellant had undergone over twelve years’ imprisonment. Requiring further Section 313 questioning would cause additional prejudice, and the conviction could not be sustained. (¶¶ 16, 17, 18, 26)
- The appellant alone was acquitted and ordered released forthwith unless required in another case. The Court neither disturbed nor affirmed the co-accused’s conviction and left any challenge by him to separate consideration. Other grounds became unnecessary to decide. (¶¶ 25, 27, 28)
Result
Appeal allowed; trial court and High Court judgments set aside only as against this appellant. Appellant acquitted and to be released forthwith unless required in another case; co-accused’s position left untouched and unadjudicated.