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Synopsis

The Supreme Court has said that failure of putting the "incriminating" circumstances to the accused would not ipso facto vitiate the trial unless it is shown that its non-compliance to the provisions of Section 313 of the Criminal Procedure Code has prejudiced the accused. 

A bench of Justices Hrishikesh Roy and Manoj Misra explained the legal position while dealing with three appeals against conviction in a case of indiscriminate firing in a locality in Delhi in November 1998 resulting in death of two persons and injuries to 26 others.

The genesis of the incident was in a dispute between two families on account of young male members of one family (of Sri Krishan) teasing female members of the other (family of Satpal).

The present three accused in the case had been roped in with the aid of Section 34 of the IPC as persons who exhorted the main assailant to fire gunshots.

However, they denied the allegations against them. They claimed that the gist of the testimony of various witnesses delineating the exact role played by them was not put to them for the purposes of recording their statements. 

Dealing with the legal issue of whether this by itself would vitiate their conviction, the bench said since there was a delay in raising the plea as the plea was raised for the first time before the bench, it could be assumed that no prejudice had been felt by the accused earlier.

In the case at hand, the bench said, "When the case of the appellants was of complete denial i.e., that they were not present at the time of occurrence, which was disbelieved by the trial court as well as the High Court. We are therefore of the considered view that the conviction of the appellants is not vitiated for alleged non-compliance of the provisions of Section 313 CrPC."

With regard to the question as to whether appellants shared a common intention with the main assailant so as to warrant their conviction under Section 302 IPC with the aid of Section 34 IPC, the bench said, "General exhortation is not sufficient to fasten them with vicarious liability for shots fired by Babu Ram at the two deceased, particularly, when the testimony of witnesses is not consistent whether the two deceased were shot before or after the exhortation made by the appellants."

The court thus held it would be extremely unsafe to convict the appellants with the aid of Section 34 of the IPC for the offence of murder.

However, it concluded that their conviction under Section 307 for attempt to murder could not be interfered with since the firing continued for 20-25 minutes and 26 people were injured, making the appellants liable for the offence.

"Looking at the nature of the incident, the number of persons injured and the role attributed to the appellants, we are of the considered view that the appellants are liable to be convicted for the offence punishable under Section 307 with the aid of Section 34 of the IPC. Thus, in our considered view, the finding of the courts below to that extent does not call for any interference," the bench said.

The court ordered the three appellants to serve a sentence of five years for the offence under Section 307 of the IPC.

Case Title: Sunil v. State of NCT of Delhi