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Supreme Court – Daily Orders
Shambhu Choudhary vs The State Of Bihar on 23 April, 2025
Author: Abhay S. Oka
Bench: Abhay S. Oka
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2154 OF 2025
(Arising out of S.L.P.(Criminal) No.8688 of 2023)
SHAMBHU CHOUDHARY ... APPELLANT(S)
VS.
THE STATE OF BIHAR ... RESPONDENT(S)
O R D E R
Leave granted.
2. Heard the learned counsel appearing for the
parties.
3. The appellant is the original accused No.3. The
appellant was tried with other seven accused for the
charges under Section 302 read with Section 149 and
Section 120-B of the Indian Penal Code, 1860 (for short,
“the IPC”). They were also charged with Section 27 of
the Arms Act, 1959.
4. The case of the prosecution, in short, was that on
8th May, 2011 at about 7.15 p.m. the accused formed an
unlawful assembly and murdered the deceased Ramashrey
Choudhary by firing gun shots. The Trial Court convicted
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
the accused for the offences punishable under Sections
Date: 2025.04.28
17:25:14 IST
Reason:
302 read with 149 of the IPC and Section 120-B thereof.
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The conviction was also under Section 27 of the Arms Act,
1959. The appeals were preferred by the accused before
the High Court. The appeals by all co-accused were
allowed. However, while deciding the appeal preferred by
the present appellant, his conviction for the offences
punishable under section 302 read with 149 and Section
120-B of the IPC was set aside and was substituted by the
conviction for the offence punishable simplicitor under
Section 302 of the IPC. Being aggrieved by the impugned
judgment of the High Court, the present appeal has been
preferred.
5. It is contended by the learned counsel appearing
for the appellant that there was an unexplained delay in
forwarding a copy of the First Information Report to the
Court of the learned Magistrate and there was no
explanation for the delay of 8 days. The second
submission was that PW1 to PW4 who were allegedly the eye
witnesses were all interested witnesses. The third
submission was based on depositions of the Investigating
Officer. Fourthly, it was submitted that the evidence of
the eye witnesses cannot be believed. Lastly, it was
submitted that material appearing in evidence against the
appellant was not put to the appellant in his examination
under Section 313(1) of the Code of Criminal Procedure,
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1973 (for short, “the CrPC”) and therefore there is
inherent prejudice to the appellant.
6. The submission of the learned counsel appearing for
the respondent-State is that the High Court has dealt
with the issue of examination of the appellant under
Section 313(1) of the CrPC and has held that the
appellant has not shown the prejudice. Her submission is
that the evidence of PW1 to PW4 is consistent and
reliable and therefore, the same cannot be discarded only
on the ground that they are interested witnesses. Her
submission is that the alleged delay of 8 days in sending
a copy of the First Information Report to the Court of
the Judicial Magistrate has been explained and, in any
case, after trial, it ceases to be of any significance
7. Firstly, we deal with the submission regarding the
manner in which statement of the appellant under Section
313 (1) of the CrPC has been recorded.
8. The relevant part of the statement of the appellant
reads thus”
“Question : Have you heard the
statement of witness?
Answer : Yes Sir
Question : It is stated by the
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witnessed that on 8.5.11
at about 7.15 O’Clock at
Vill.Akbarpur Nayatola, PS
Shamho, Distt. Begusarai
along with other accused,
in the courtyard, by
forming an unlawful
assembly by taking rifle
and billed, by hiding,
murdered Ramashray
Choudhary by firing in the
right waist?
Answer : No Sir.
Question : It is stated by the
witnesses that you along
with other co-accused ran
away by making
indiscriminate firing?
Answer : No Sir.
Question : What do you have to say in
defence?
Answer : I am innocent.”
9. The High Court has held that the appellant has not
shown prejudice. This Court in the case of Raj Kumar
alias Suman v. State (NCT of Delhi)1 in paragraph 22 has
summarised the legal position as regards the statement
under Section 313(1) of the CrPC. Paragraph 22 reads
thus:
“22. The law consistently laid down by this Court
can be summarised as under:
1. (2023) 17 SCC 95
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22.1. 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.
22.2. 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.
22.3 The Court must ordinarily eschew material
circumstances not put to the accused from
consideration while dealing with the case of the
particular accused.
22.4. 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.
22.5. 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.
22.6. In case such irregularity is curable, even
the appellate court can question the accused on
the material circumstance which is not put to
him.
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22.7. In a given case, the case can be remanded
to the trial court from the stage of recording
the supplementary statement of the accused
concerned under Section 313 CrPC.
22.8. 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.”
10. We have perused the finding recorded by the High
Court on this aspect. We are not in a position to accept
the finding which holds that the learned counsel for the
appellant has not shown the prejudice. In fact, the
prejudice in this case is such that no argument is
required to come to a conclusion that there is a
prejudice. Under Section 313 of the CrPC, it is a duty
of the Court to explain to the accused the circumstances
appearing against him in the evidence. There is a
difference between “circumstances appearing in the
evidence against the accused” and “case of the
prosecution in brief”. In this case, what is put to the
appellant-accused is the case of the prosecution in
brief. It was a duty of the Court to point out to the
accused what each prosecution witness and especially, eye
witness has deposed against him. Instead of doing that
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what is put to the accused is only the case of the
prosecution.
11. Under sub-Section (4) of Section 313 of the CrPC,
the answers given by the accused can be taken into
consideration in the trial. The object of examination
under Section 313 of the CrPC is that the accused must
get full notice of each and every incriminating
circumstance brought on record in the trial so that he
can effectively explain the same, if he so desires.
12. There are many cases where the trial is conducted
in the language which may not be known to the accused.
Even otherwise, the accused while sitting in the dock,
may not be in a position to understand exactly what
material is brought on record against him during the
prosecution evidence. Therefore, the accused must be
specifically put all the material brought on record in
the prosecution evidence on the basis of which the
prosecution is seeking his conviction. Apart from the
fact that the accused will be in a position to explain,
based on the material brought on record, he can also
consider of adducing defence evidence.
13. Therefore, we are of the view that the purported
examination of the appellant under Section 313 (1) of the
CrPC is no examination as required under Section 313(1)
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of the CrPC and therefore, there is no hesitation in
holding that prejudice has been caused to the appellant.
14. It is true that this defect is curable. However,
after a gap of 14 years from the incident, now we cannot
pass an order of remand and expect the accused to answer
the questions posed to him about what happened in the
year 2011. Moreover, the appellant has undergone
sentence for more than 14 years.
15. Hence, the appeal must succeed. We set aside the
impugned judgment dated 23rd December, 2022 of the High
Court of Judicature at Patna in Criminal Appeal
(DB)No.494 of 2014 and acquit the appellant of the charge
against him.
16. The appeal is accordingly allowed.
17. The appellant shall be forthwith set at liberty
unless he is required in connection with any other
offence.
……………………..J.
(ABHAY S.OKA)
……………………..J.
(UJJAL BHUYAN)
NEW DELHI;
April 23, 2025
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ITEM NO.3 COURT NO.4 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 8688/2023
[Arising out of impugned final judgment and order dated 23-12-2022
in CRADB No. 494/2014 passed by the High Court of Judicature at
Patna]
SHAMBHU CHOUDHARY Petitioner(s)
VERSUS
THE STATE OF BIHAR Respondent(s)
([ TOP OF THE CAUSE LIST ]
IA No. 122156/2023 – EXEMPTION FROM FILING O.T.)
Date : 23-04-2025 This matter was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE ABHAY S. OKA
HON’BLE MR. JUSTICE UJJAL BHUYAN
For Petitioner(s) :
Mr. Abhay Kumar, AOR
Mr. Shagun Ruhil, Adv.
Mr. Karan Chopra, Adv.
For Respondent(s) :
Ms. Rebecca Mishra, Adv.
Mr. Azmat Hayat Amanullah, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
The appellant shall be forthwith set at liberty
unless he is required in connection with any other
offence.
Pending application also stands disposed of.
(ANITA MALHOTRA) (AVGV RAMU)
AR-CUM-PS COURT MASTER
(Signed order is placed on the file.)
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